15 Restrictive
measures against Zimbabwe
| (a)
(35761)
—
—
(b)
(35762)
—
—
|
Council Decision amending Council Decision 2011/101/CFSP concerning Restrictive Measures against Zimbabwe
Council Decision extending the validity of Decision 2012/96/EU
|
| Legal base
| (a) Article 215 TFEU; unanimity
(b) —
|
| Department
| Foreign and Commonwealth Office
|
| Basis of consideration
| EM of 31 January 2014
|
| Previous Committee Report
| None; but see (35344) — and (35345) —: HC 83-xvi (2013-14), chapter 23 (9 October 2013); (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)
|
| Discussion in Council
| 17 February 2014
|
| Committee's assessment
| Politically important
|
| Committee's decision
| Cleared
|
Background
15.1 The two Council Decisions
in question incorporate the measures that the EU has taken against
the regime of President Mugabe in response to various "stolen"
elections and subsequent internal repression:
· the
first — the customary EU "travel ban and asset freeze
package", and embargoes on arms and internal repression items
— was introduced in 2004, and has been renewed annually;
the most recent manifestation being Council Decision 2011/101/CFSP;
· the
second relates 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. Council Decision 2002/148/EC was introduced after
the first "stolen" election in 2002. It main features
are: suspension of budgetary support, and of 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; see
below); no effect on humanitarian support; channelled exclusively
through multilateral organisations such as the UN and civil society
organisations and not through Government channels.
15.2 The full background is set
out in the earlier Reports referred to above. In summary, ever
since a power-sharing Inclusive Government was formed in February
2009, underpinned by a GPA signed by President Mugabe and then
Prime Minister and MDC (Movement for Democratic Change) leader
Morgan Tsvangirai, 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.
15.3 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; Council Decision 2012/96/EU
suspended the application of the "appropriate measure"
set out in Decision 2002/148/EC. 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.
15.4 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. In
sum, in 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
with 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 that
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, and meant that restrictions
would exist on all diamond mining operations in the Marange fields
until after elections had taken place;
— 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.
— since
Decision 2013/160/CFSP did not expire until February 2014, a Council
Declaration annexed to the Decision, and the Conclusions of the
Political and Security Committee 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
15.5 We presumed that the differences
among Member States about the fine tuning of these measures, as
implied by 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.
15.6 However, rather than pursue
this further in this instance, we have done so via our present
inquiry into the scrutiny of European business. In the meantime,
we cleared the Council Decision and Council Regulation.
Council Decision 2012/96/EU
15.7 The draft Council Decision
that we cleared on 10 July 2013 extended, for six months, the
validity of Decision 2012/96/EU. The Minister for Europe said
that, with elections due on 31 July 2013, the next six months
would be critical for Zimbabwe. 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 lifting the "appropriate
measures" at this stage. By extending their validity, 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.
15.8 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'."
15.9 In his Explanatory Memorandum
of 4 October 2013, the Minister for Europe (Mr David Lidington)
said that:
— following
the final ruling of the Zimbabwean Constitutional Court on the
result of elections on 20 August 2013, Council Decision 2013/469/CFSP
fulfilled the commitment that Member Sates made in the unpublished
Council Declaration of February 2013, and had to be implemented
in EU legislation;
— Council
Implementing Regulation (EU) No. 915/2013 therefore amended 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 remained subject to active restrictive
measures, while 81 individuals and eight entities remained subject
to suspended listings;
— EU
Member States would consider all such measures when they come
up for renewal in February 2014.
15.10 The Minister commented 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 23 January 2014
15.11 The Minister said that the
Government had engaged in a lengthy and wide-ranging examination
of policy options, bearing in mind wider UK and EU objectives
(which he did not illustrate) in relation to Zimbabwe, and which
had included "a conversation between the Minister for Africa
Mark Simmonds and the chair of the Zimbabwe APPG, Kate Hoey"
(again, no details). The need for "this careful process,
combined with the Christmas recess, has led to the initiation
of negotiations at EU level relatively late in relation to the
expiry of current measures". The Minister had hoped to
deposit the Draft Decision by 30 January. He would continue to
seek a swift conclusion to the negotiations, and would be "very
grateful if the Committee was able to consider the Decision with
urgency once it has been submitted".
15.12 In our letter responding
to the Minister, we said that the absence of a draft Council Decision
at that stage again suggested continuing disagreement among Member
States about the best way forward, no doubt including ongoing
pressures from some Member States for changes that would be in
their companies' commercial interests, similar to last year's
pressure to delist the ZMDC. It also seemed likely that some
Member States were arguing that, with the government and parliament
settled and the opposition weakened, it was time for normal arrangements
to be resumed; and thus to nullify the ZANU-PF line that the economy's
fragility is the result of EU policies rather than theirs. When
the Minister was able to submit the Council Decisions, there was
likely to be little time for discussion or debate prior to their
adoption, no matter how urgently the Committee dealt with them.
We therefore asked the Minister, in his Explanatory Memorandum,
not only to outline whatever changes had been finally agreed but
also the different factors at play during the discussions, so
that the House would at least have the benefit of as clear an
understanding as possible of the eventual outcome and the way
it had been reached.
The draft Council Decisions
15.13 In his Explanatory Memorandum
of 31 January 2014, the Minister for Europe (Mr David Lidington)
explains that these draft Council Decisions amend Council Decision
2011/101/CFSP concerning Restrictive Measures against Zimbabwe,
and extend the validity of Council Decision 2012/96/EU concerning
Appropriate Measures against Zimbabwe — to which he refers
to collectively as the "Targeted Measures".
15.14 The Minister says that the
amendments introduced by the Council Decisions:
· renew
the package of Restrictive Measures for a further 12 months, while
suspending the travel ban and asset freeze on eight individuals;
· two
individuals and one entity: "Robert and Grace Mugabe; Zimbabwe
Defence Industries" remain "actively subject to these
measures (i.e. the suspension does not apply to them)";
· extend
the validity, and suspension, of the Article 96 "Appropriate
Measures" until 1 November 2014.
15.15 The Minister continues as
follows:
"Discussions on this year's
renewal of Targeted Measures began on 21 January 2014 at the EU
Political and Security Council meeting. The UK approach to these
discussions was guided by two key principles:
— "that
the package of Targeted Measures must remain legally robust, and
that measures should be lifted where they are found to no longer
satisfy the legal criteria of the sanctions regime (ensuring that
the sanctions are lawful and are retained as a sustainable and
effective foreign policy tool in the long run);
— "beyond
this, that the Measures should promote democratic reform and respect
for Human Rights in Zimbabwe, but remain flexible and respond
to circumstances on the ground, taking account of factors such
as the economic, humanitarian and human rights situation.
— "In
light of these considerations, UK Ministers have agreed to a limited
number of suspensions (8 individuals) under the Restrictive
Measures. Beyond the 8 individuals, Restrictive Measures —
both suspended and active — were renewed for 12 months.
All other elements of the Restrictive Measures (i.e. the embargoes
on arms and internal repression items) were renewed for 12 months.
UK Ministers also agreed to maintain the suspension of the Appropriate
Measures until 1 November 2014 when they will lapse unless Member
States decide otherwise."
The Government's view
15.16 The Minister comments thus:
"These Council Decisions are
designed to ensure that all Targeted Measures continue to be legally
robust, responsive to the situation on the ground and relevant
to the objectives of the sanction regime, whilst maintaining financial
and travel restrictions on the key individuals and entity responsible
for undermining democracy and respect for human rights. The Measures
are a preventative tool, and not punitive.
"The Decision to suspend the
Restrictive Measures against 8 individuals does not signal
any change in the UK's view of the elections last July. We expect,
and have agreed, that the EU should also make clear alongside
the decision that the suspension does not equate to an endorsement
of the elections. As made clear by the Foreign Secretary, we have
grave concerns over how the elections were conducted, and do not
believe they can be considered credible without an independent
investigation into the process. There remains strong evidence
that the elections fell short of the Southern African Development
Community's (SADC) own guidelines and Zimbabwean electoral law.
Numerous irregularities were highlighted in the SADC and African
Union (AU) Election Observation Mission's (EOM) initial assessments,
as well as the AU EOM's final report. We note that many of the
outstanding issues, such as the provision of an electronic copy
of the voters roll, have still not been addressed.
"Notwithstanding our concerns
over the elections, we recognise that some groups within Zimbabwe
incorrectly blame the Targeted Measures for the Government's failure
to deliver necessary improvements, particularly to the economy
and social development. The decision to suspend the Restrictive
Measures on all but 2 individuals, Robert and Grace Mugabe, and
one entity, Zimbabwe Defence Industries, aims to largely remove
this excuse and ensure the people of Zimbabwe are able to hold
their government to account for its actions. It also reflects
a stable, but still concerning, human rights situation, and desire
by many EU Member States to engage with the Government of Zimbabwe
to help drive reform, and improve Governance and the respect for
Human Rights and the Rules of Law. We believe this approach will
support the aspirations of the Zimbabwean people for a more democratic
and prosperous Zimbabwe.
"In respect of the Appropriate
Measures, UK Ministers agreed to maintain the suspension of Article
96, which enacts those Measures, until 1 November 2014, when they
will lapse unless Member States decide otherwise. EU Member States
agreed that a review before November was the best approach
given the EU's internal planning processes for the 11th European
Development Fund (EDF), which provides support to Africa, Caribbean
and Pacific countries who are signatories to the Cotonou Agreement.
Member States will review progress between now and November 2014
to decide whether the Appropriate Measures should be lifted, and
what a programme of medium-term support to Zimbabwe between now
and 2020 might look like.
"We expect the EU to continue
to provide support to the people of Zimbabwe in 2014 through existing
programmes in sectors such as health through partners such as
the UN and Civil Society Organisations. The UK will retain a significant
say (by virtue of being a major shareholder in the EDF), but not
a veto, on how much and in what way EU aid is provided to Zimbabwe
during the 11th EDF period (2014-2020). However, we
do not expect the EU to propose that any aid goes directly through
Government of Zimbabwe Ministries in the next few years. Decisions
on how EU aid is provided have no bearing on the UK's bilateral
aid programme to Zimbabwe. DFID does not put funds directly through
Government of Zimbabwe systems, has not done so for over a decade
and has no plans to do so.
"We note the request of the
House of Commons European Scrutiny Committee for details on the
different factors at play during Member State discussions on the
Measures. We regret that we are unable to provide any specific
information as we do not comment publicly on individual Member
State positions during the negotiations. However, on the whole,
Member States recognised the need to take a balanced approach
to the Measures, taking account of the flawed elections last July
and the need to hold the Government of Zimbabwe to account, as
well as the importance of engaging with the Government of Zimbabwe
to drive progress and reform. We can reassure the Committee that
we believe these discussions were not focussed on commercial aims,
but on the best way of promoting reform and the respect for Human
Rights in Zimbabwe.
"As part of the EU's approach
to promoting reform in Zimbabwe and as part of the considerations
of maintaining active listings on President Mugabe, as well as
engaging with African partners on key issues such as human rights,
prosperity and good governance, the UK agreed to accept President
Mugabe's invitation to the EU/Africa Summit in Brussels. This
decision was in line with that agreed for the 2007 Lisbon summit,
and follows his presence at the Summits in Libya 2010 and Egypt
2000. His attendance at the Summit is a one-off exemption and
would not include travel to the UK. The UK's position on President
Mugabe travelling to Europe has not changed, which is why we agreed
with other Member States to renew the travel ban against him."
Conclusion
15.17 The Minister has explained
the Government's position clearly. Given the endorsement of the
electoral outcome by the relevant regional bodies and the fact
that the UK has long been fighting a rearguard action against
other, more accommodating Member States, the consensus embodied
in these changes is no doubt the best the Minister could have
achieved. We are content to leave it to interested Members to
follow up any questions that they may feel arise from it via the
many means at their disposal.
15.18 In so doing, we note that
the Cotonou Agreement Article 96 "appropriate measures"
will lapse in November, unless there is a consensus to maintain
them. We should therefore be grateful if the Minister would write
to us in October, when the House has returned from the conference
recess, to outline the direction that the review process is taking,
his expectations of the final outcome, and his views on it.
15.19 In the meantime, we now
clear the Council Decisions.
| 
