23 Restrictive measures against Zimbabwe
| (a)
(35344)
—
—
(b)
(35345)
—
—
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Council Implementing Decision 2013/469/CFSP of 23 September 2013 amending Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe
Council Implementing Regulation (EC) No. 915/2013 of 23 September 2013 amending Regulation (EC) No. 314/2004 concerning restrictive measures against Zimbabwe
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| Legal base | (a) Article 31(2) TEU; unanimity
(b) Article 215 TFEU; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 4 October and Minister's letters of 29 August and 4 October 2013
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| Previous Committee Report | None; but see (34846) — and 34847 —: HC 83-iii (2013-14), chapter 23 (21 May 2013) and HC 86-xxxix (2012-13), chapter 8 (24 April 2013); also see (35129) — : HC 86-xi (2012-13), chapter 21 (5 September 2013)
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| Discussion in Council | To be determined
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
|
Background
23.1 In February 2012, the Committee cleared two Council Decisions
incorporating the measures that the EU had taken in response to
various "stolen" elections and subsequent internal repression:
- one related to the "appropriate measures" permitted
under Article 96 of the Cotonou Agreement when an ACP country
is guilty of egregious breaches of its Article 8 "good governance"
provisions. It was introduced after the first "stolen"
election in 2002, and had been renewed annually: suspension of
budgetary support and financial support for all projects except
those in direct support of the population, in particular in the
social sectors and those in support of the reforms contained in
the General Political Agreement (GPA); not to affect humanitarian
support; and to be channelled exclusively through multilateral
organisations such as the UN and civil society organisations and
not through Government channels;
- the second — the customary EU "travel
ban + asset freeze package" — was introduced in 2004,
and has likewise been renewed annually.
23.2 The full background is set out in our Report
of 22 February 2012.[53]
23.3 As noted there, a power-sharing Inclusive
Government was formed in February 2009, underpinned by a GPA signed
by President Mugabe, Prime Minister Morgan Tsvangirai (of the
Movement for Democratic Change; MDC) and Deputy Prime Minister
Arthur Mutambara.
23.4 Since then, the Government, and the EU collectively,
has sought what the Minister for Europe (Mr David Lidington) has
described as the right balance between responding to progress
and maintaining pressure on the Government of Zimbabwe to continue
with reforms.
23.5 Thus, the 23 July 2012 Foreign Affairs Council
decided to resume full cooperation under the Cotonou Agreement
— but with a Country Strategy agreed and funded only on
condition of further reform. At that time, the Minister for
Europe said his aim was clear: to support the process towards
a credible constitutional referendum ahead of free and fair elections
in 2013. The agreement on Article 96 was consistent with the
EU's basic approach. Looking ahead, the Council had also agreed
that, should there be a peaceful and credible Constitutional Referendum,
the EU should respond accordingly with suspension of the assets
freeze and travel ban on all but a small core of individuals around
President Mugabe, particularly those who would most directly influence
the potential of violence in the next election.[54]
23.6 The 18 February 2013 Foreign Affairs Council,
inter alia, said:
"As demonstrated in July 2012 and the agreement
by the Council today the EU, consistent with its incremental approach,
stands ready to further adjust its policy to recognise progress
as it is made by the Zimbabwean parties along the SADC Roadmap.
As stated in the Council Conclusions of July 2012, a peaceful
and credible constitutional referendum would represent an important
milestone justifying an immediate suspension of the majority of
all remaining EU targeted restrictive measures against individuals
and entities."[55]
23.7 Such a peaceful and credible Constitutional
Referendum having been carried out on 16 March 2013, Council Decision
2013/160/CFSP and (the implementing) Council Regulation (EC) No.
298/2013 were adopted on 27 March 2013. The Committee's consideration
thereof is set out in our most recent Reports under reference.[56]
23.8 In sum, in his Explanatory Memoranda and
correspondence with the Committee, the Minister confirmed that:
— the
ten individuals whose listings were not suspended were Robert
Mugabe, Grace Mugabe, and a core group of senior Zanu-PF officials
who play key roles in the operation of the security sector;
— the suspension did include a number of
individuals with connections to the diamond mining industry, including
the Minister of Mines, Obert Mpofu;
— inclusion of these individuals in the
suspension was judged consistent with the broader objectives of
using the Measures flexibly, to support the Southern African Development
Community facilitation process and to incentivise reform in the
run up to elections later this year;
— both the mining parastatal (ZMDC) and
the defence parastatal (ZDI) remained subject to Restrictive Measures;
— the continued listing of these two entities
was the result of concerted UK lobbying during the February negotiations;
— the active Restrictive Measures against
ZMDC and ZDI meant that restrictions would exist on all diamond
mining operations in the Marange fields until after elections
had taken place; and
— ZMDC would be delisted after presidential
and parliamentary elections unless the EU judged that it had been
involved in undermining the free and fair conduct of those elections.
23.9 The Minister also noted that:
—
the majority suspension introduced by Decision 2013/160/CFSP was
valid in the first instance until 20 February 2014 (the date by
which the restrictive measures themselves are due for renewal)
but that — with the two further crucial milestones of presidential
and parliamentary elections needing to be passed during the next
six months — it would be subject to review every three months;
— since Decision 2013/160/CFSP did not
expire at the three month mark, a Council Declaration annexed
to the Decision, and the Conclusions of the Political and Security
Committee[57] of 22 March
2013, had been used to commit Member States to the adoption of
a Decision revoking the suspension at the three-monthly review
unless there was unanimous agreement that the suspension should
continue;
— any Member State would therefore be
able to collapse the suspension and re-activate targeted measures
in a minority of one every three months; and
— this safeguard enabled UK officials to
ensure an appropriate response should the situation on the ground
deteriorate.
Our assessment
23.10 We presumed that the differences among
Member States about the fine tuning of these measures implied
in concerted UK lobbying to continue listing the entities, was
why it was decided to draw a veil over them via the use of a Council
Declaration rather than an overt commitment embodied in the Council
Decision. While this might be understandable from other perspectives,
having to rely upon a Ministerial assurance continued to run contrary
to the proper Parliamentary scrutiny of such measures.
23.11 However, rather than pursue this further
in this instance, we have done so via our present inquiry into
the scrutiny of European business.
23.12 In the meantime, we cleared the Council
Decision and Council Regulation.[58]
The most recent Council Decision
23.13 The draft Council Decision that we considered
on 10 July extended, for six months, the validity of Decision
2012/96/EU (which suspended the application of the appropriate
measures set out in Decision 2002/148/EC).
23.14 The Minister for Europe said that, with
elections currently set for 31 July, the next six months would
be critical for Zimbabwe; extending Decision 2012/96/EU to cover
the potential electoral period was therefore consistent with the
EU's overall approach. Although in broad terms there had been
significant progress in a number of areas since the formation
of the Inclusive Government in 2009, there had been insufficient
progress since July 2012 to warrant the lifting of "appropriate
measures" at this stage. By extending the validity of Decision
2012/96/EU the measures could be re-imposed at any time if necessary:
equally, if the situation improved in the light of peaceful and
credible elections, the Measures could be lifted before their
envisaged expiry in February 2014. He would keep the Committee
updated with any changes.
Our assessment
23.15 It was plain that much could happen during
the summer recess. In any event, we asked the Minister for an
update no later than the end of August, with his assessment of
subsequent developments and his views on their implications for
both sets of EU measures (these, and the targeted measures referred
to above).
23.16 In the meantime, we cleared this draft
Council Decision.[59]
23.17 On 7 August, the BBC reported:
"Zimbabwe's President Robert Mugabe has been
declared the winner of the 31 July elections, with 61% of the
vote and his Zanu-PF party gaining a two-thirds majority in parliament,
but the opposition Movement for Democratic Change (MDC) has claimed
massive fraud and says it will go to court.
"International opinion on the poll is sharply
divided with Western countries generally condemning it, while
most African leaders — except Botswana — have congratulated
Mr Mugabe on his re-election.
"Western observers were barred from the election.
Monitors from the African Union (AU) and the Southern African
Development Community (Sadc) praised the poll for being peaceful
but still noted several irregularities. Zanu-PF has denied allegations
of fraud.
"AU mission head Olusegun Obasanjo said he had
never seen a perfect election and that the discrepancies were
not large enough to affect the result — Mr Mugabe gained
938,085 more votes than his rival Morgan Tsvangirai.
"The main bone of contention has been the voters'
roll and what a local observer group, the Zimbabwe Election Support
Network (Zesn) and its 7,000 observers, said was a 'systematic
effort to disenfranchise an estimated one million voters'."[60]
The Minister's letter of 29 August 2013
23.18 The Minister wrote as follows:
"The Foreign Secretary made statements on 3
and 22 August, citing grave concerns about Zimbabwe's harmonised
elections that took place on 31 July 2013. ZANU-PF won 160 out
of 210 parliamentary seats and Mugabe was re-elected as
President with 61% of the vote. The African Union (AU) and Southern
African Development Community (SADC) both sent observer missions.
Their preliminary assessments on 2 August welcomed the peaceful
conduct of elections but identified numerous flaws — including
the failure to produce the voters roll, the large number of voters
who were turned away on Election Day and the very high numbers
of extra ballot papers that were printed. Neither report said
they were fair or credible.
"The leader of the MDC-T, Morgan Tsvangirai,
called the harmonised elections 'null and void' due to a number
of irregularities. MDC-T launched multiple legal challenges against
the election results. However, on 14 August, the Court postponed
'indefinitely' a ruling on whether to give MDC-T access to the
critical election materials they need to prove their case, and
on 16 August, the MDC-T withdrew their Constitutional Court case
to challenge the Presidential result. The Constitutional Court
proceeded with the hearing and on 20 August declared Mugabe the
winner of the July 31 elections and dismissed Morgan Tsvangirai's
petition for a re-run. Cases against individual constituency
results remain. Following the court's ruling, President Mugabe's
inauguration was held on Thursday 22 August.
"On 17-18 August, SADC held its annual Summit
of Heads of State and Government in Malawi, where SADC Member
States commended the Government and people of Zimbabwe for holding
free and peaceful elections, congratulated ZANU-PF and President
Mugabe for winning the elections, and reiterated their call for
the lifting of all sanctions on Zimbabwe. Although SADC have still
not said that Zimbabwe's elections were credible or fair, President
Mugabe was made Deputy Chairperson of the SADC Summit; next year's
SADC Summit will be held in Zimbabwe in August. Zimbabwe's membership
of the SADC Troika increases the influence they will have on SADC's
agenda.
"Though we welcome the peaceful conduct of elections,
the Foreign Secretary has expressed grave concerns at reports
of election irregularities. We await the detailed final observer
reports of the AU and SADC. Once received, like other EU members,
we will need to review carefully UK policy regarding EU Appropriate
and Restricted Measures. As you know I am committed to full and
transparent scrutiny and I am grateful to the Committee for expressing
its interest; I will write to update you in due course."
The Council Implementing Decision and Council
Implementing Regulation
23.19 In his Explanatory Memorandum of 4 October
2013, the Minister for Europe (Mr David Lidington) says that:
— following
the final ruling of the Zimbabwean Constitutional Court on the
result of elections on 20 August 2013, Council Decision 2013/469/CFSP
fulfils the commitment that Member Sates made in the unpublished
Council Declaration of February 2013, and must be implemented
in EU legislation;
— Council Implementing Regulation (EU)
No.915/2013 therefore amends Annex III to Regulation (EC) No.314/2004
to remove ZMDC (Zimbabwe Mining Development Corporation) from
the list of entities subject to restrictive measures;
— ten individuals and one entity remain
subject to active restrictive measures, while 81 individuals and
eight entities remain subject to suspended listings; and
— EU Member States will consider all such
measures when they come up for renewal in February 2014.
The Government's view
23.20 The Minister then comments as follows:
"The commitment that Member States made in the
Political and Security Committee to delist ZMDC within one month
of elections, captured in the Council Declaration in February
2013, has now been fulfilled. It reflects the fact that credible
evidence has not come to light of ZMDC's involvement in undermining
the electoral process, and that the Council did not express a
unanimous view that those elections were not peaceful, transparent
and credible. In that respect, the criteria were met and Member
States concurred that the delisting should go ahead on the agreed
timetable.
"However the delisting of ZMDC should not be
taken as indicative of the wider EU response towards the Zimbabwean
elections, nor as a precursor to further easing of restrictive
measures on those individuals and entities who remain listed,
either actively or suspended. These measures remain in place until
February 2014, with all suspended listings remaining subject to
review on a three monthly basis, and to re-activation should any
Member State break the consensus that suspension should continue.
"The Foreign Secretary has made clear the UK's
grave concerns over the conduct of the elections, and those flaws
that were highlighted in reports by both the Southern African
Development Corporation (SADC) and the African Union (AU). Whilst
they were largely peaceful, we strongly believe that an independent
investigation of any allegations of election irregularities would
be required for the election result to be deemed credible. The
decision to delist ZMDC was agreed because the UK believes it
is important that all EU Member States work together to maintain
a unified position.
"With respect to ZMDC, the relaxation of the
Kimberley Process restrictions in November 2012 allowed Zimbabwe
access to a large number of markets around the world, and has
meant that restrictions on sales affecting the EU only have no
longer represented an effective mechanism in managing or curtailing
diamond revenue flows. The UK will continue to work with EU partners
towards a transparent diamond trade in Zimbabwe that meets international
standards and ensures the Zimbabwean people reap its benefits.
"The UK has been clear that those restrictive
measures that remain in place are fully justified. We will continue
working with partners to ensure that the EU maintains a robust
approach towards Zimbabwe. The EU will need to review and respond
to the final reports of the SADC and the AU, and assess the new
Government's early performance, before taking decisions on the
renewal or any changes to restrictive measures when they come
up for review in February 2014."
The Minister's letter of 4 October 2013
23.21 Referring to the unpublished Council Declaration
whereby Member States agreed to delist ZMDC one month after elections
took place, unless the Council declared that the elections were
not peaceful, transparent and credible, or that there were reasonable
grounds to suspect that ZMDC had been involved in undermining
the democratic process the Minister says that, following the Zimbabwean
Constitutional Court's declaration of the final result on 20 August,
"the process in Brussels to fulfil this commitment commenced."
23.22 The Minister then notes that Decision 2013/469/CFSP
amending Decision 2011/101/CFSP, as well as Council Regulation
(EU) No. 915/2013 implementing these amendments in EU law, were
adopted on 23 September 2013 without scrutiny. The attached Explanatory
Memorandum sets out the scope and policy implications of the Decision
and Regulation in full. He refers to his earlier letter and the
Foreign Secretary's public statements that "made very clear
that we have strong concerns about the conduct of the Zimbabwean
elections, and underlined that we believe an independent investigation
of reported irregularities should take place."
23.23 On ZMDC, the Minister says, "we entered
into agreement on the delisting earlier this year in good faith
in order to maintain the measures across the electoral period,
and it was important to honour it within or as close to the agreed
timescale as the Brussels machinery allowed. The draft decision
was distributed on 18 September and adopted by written procedure
on 23 September." The need to over-ride scrutiny on this
occasion was, the Minister says, "regrettably unavoidable."
23.24 Looking ahead, the Minister says:
"The UK will continue to work with partners
to ensure a robust EU position on Zimbabwe, including when considering
the renewal of restrictive measures when they come round for discussion
in early 2014. I will keep your Committee informed of developments."
Conclusion
23.25 Though neither SADC nor the AU has
produced their reports, SADC appears to have made its basic position
clear (see the Minister's letter of 29 August). The likelihood
of any independent investigation of allegations of election irregularities
would therefore seem to be remote, since the cooperation of the
Zimbabwe authorities would be a prerequisite.
23.26 There is thus little prospect of any
change before both these measures and those under Article 96 of
the Cotonou Agreement are reviewed early next year. We look forward
to hearing from the Minister then.
23.27 In the meantime, we now clear these
documents.
23.28 On this occasion and in these circumstances,
we do not object to the Minister having agreed to their adoption
prior to scrutiny.
53 See (33645) 5820/12 and (33679) -: HC 428-li (2010-12),
chapter 12 (22 February 2012). Back
54
See (34105) -: HC 86-xi (2012-13), chapter 21 (5 September 2012)
for the full background. Back
55
The full Council Conclusions are available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/135531.pdf. Back
56
See (34105) - and (34745) -: HC 86-xxxvi (2012-13), chapter 11
(20 March 2013); and (34846) - and (34847) -: HC 83-iii (2013-14),
chapter 23 (21 May 2013) and HC 86-xxxix (2012-13), chapter 8
(24 April 2013). Back
57
The committee of ambassador-level officials from national delegations
who, by virtue of article 38 TEU, under the authority of the High
Representative for Foreign Affairs and Security Policy (HR) and
the Council, monitor the international situation in areas covered
by the CFSP and exercise political control and strategic direction
of crisis management operations, as set out in article 43 TEU. Back
58
See (34846) - and 34847 -: HC 83-iii (2013-14), chapter 23 (21
May 2013) and HC 86-xxxix (2012-13), chapter 8 (24 April 2013). Back
59
See (35129) - : HC 86-xi (2012-13), chapter 21 (5 September 2013). Back
60
The full report is available at http://www.bbc.co.uk/news/world-africa-23591941. Back
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