19 Restrictive measures against Zimbabwe
| Committee's assessment
| Politically important |
| Committee's decision | Cleared from scrutiny
|
| Document details | (a) Council decision and (b) Council Regulation on EU restrictive measures against the Mugabe regime
|
| Legal base | (a) Article 29 TEU; unanimity; (b)Article 215 TFEU; QMV
|
| Department | Foreign and Commonwealth Office
|
| Document numbers | (a) (36694), —; (b) (36695), —
|
Summary and Committee's conclusions
19.1 Ever since 2002 the EU has imposed a variety
of "targeted" measures against the Mugabe regime in
Zimbabwe. Since the formation in 2009 of an inclusive power-sharing
Government and an external regional process led by South Africa,
the EU has sought to perform a delicate balancing act of keeping
up the pressure but rewarding progress.
19.2 When the EU restrictive measures in question
here were last renewed, in February 2014, only two individuals
and one entity — Robert and Grace Mugabe, and the parastatal
"Zimbabwe Defence Industries"[64]
remained "actively subject" to these measures (i.e.
continuation of the asset freeze and travel ban in suspended form
in respect of 84 individuals and eight entities did not apply
to them).
19.3 In addition, a separate Council Decision extended
the validity, and suspension, of the "Appropriate Measures"
under Article 96 of the Cotonou Agreement until 1 November 2014.
19.4 Last December, the Committee considered a letter
from the then Parliamentary Under-Secretary of State at the Department
for International Development (Lynne Featherstone), in which she
explained why Member States had allowed the "Appropriate
Measures" to lapse. In that letter, the then Minister noted
that:
"this is a separate decision to that on the
Restrictive Measures, which remain in force until February 2015,
and will also require unanimity of EU MS to renew. Colleagues
in the FCO (who hold responsibility for UK policy on Restrictive
Measures) will be actively reviewing these Measures in the coming
months, in close consultation with EU Member States. I understand
the FCO will engage the Committees as soon as possible ahead of
February and engage the EEAS to align negotiation and scrutiny
timelines."
19.5 The Committee noted that the then Minister had
copied her letter not only widely within the Government (to the
Prime Minister, the Foreign Secretary, the International Development
Secretary, the Minister for Europe and the Minister for Africa)
but also to the Chair of the relevant APPG. We were accordingly
content for interested Members to pursue any questions that they
felt might immediately arise from this determination via the many
means at their disposal.
19.6 Looking ahead to the fate of the extant Council
Decision beyond February 2015, given recent developments within
the ruling ZANU-PF party revolving around the future beyond President
Mugabe, whatever decision the Council came to over restrictions
that now applied directly only to the President and his wife,
was likely to be controversial. In the Minister for Europe's and
his officials "engagement" with the EEAS, the Committee
therefore looked to him and them to make a reality of aligning
"negotiation and scrutiny timelines". There seemed to
us no reason why, as had happened on previous occasions, matters
should go "down to the wire", since there appeared to
be nothing between last December and the expiry date that was
likely to change minds one way or the other. We therefore looked
to the Minister for Europe "engaging" the Committee
no later than 8 January 2015. At that time, as well as updating
the Committee on the review process, also asked for his assessment
of the political situation in Zimbabwe and his views on the right
way forward.[65]
19.7 The Minister now writes to say that, via a Council
Decision and Council Implementing Regulation adopted on 19 February
2015, the asset freeze and travel ban will continue in suspended
form in respect of 84 individuals and eight entities, with the
measures remaining in full effect against Robert Mugabe, Grace
Mugabe and Zimbabwe Defence Industries only (and that five deceased
individuals have been removed from the listing). The Minister's
approach to the negotiations leading up to this determination
was approach to these discussions was guided by two key principles:
— "that the package of 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); and
— "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".
19.8 In terms of timing, the Minister says that discussions
among Member States had to await a report from EU Heads of Mission
in Harare, which was only finalised on 10 January because of the
need to take account of ZANU-PF's (five yearly) Party Congress
in December "and the significant political upheaval that
followed". There was a wide range of views held by Member
States; any extension of the Measures required unanimous agreement,
or the measures would have lapsed on 20 February; the UK "worked
hard to secure the best outcome for continuation of sanctions
listings, including lobbying at the highest level"; despite
UK pressure, many Member States were unable to confirm their respective
positions until late January. On 4 February, the EU's Political
and Security Committee agreed to a full 12-month rollover. Obtaining
draft Council documents "in a timelier manner" was not
possible.
19.9 While, given the timescales involved, an override
was necessary and regrettably unavoidable, the Minister also believes
that "the FCO should have sent you an Explanatory Memorandum
earlier and I apologise for the fact that this was not done".
19.10 While we can see why the Minister might
have delayed writing to the Committee on 8 January, we can see
no reason why he could not have written to us once the EU Heads
of Mission report had been received, in line with our plainly-stated
request that he should update the Committee at that point on the
review process, his assessment of the political situation in Zimbabwe
and his views on the right way forward.
19.11 No doubt he would have also had to say what
he says now about what then lay ahead, in terms of the range of
Member State views and the 20 February deadline. But the key decision
was renewal or expiry: and that was taken on 4 February by the
Political and Security Committee (PSC). Again, we can see no reason
why the Minister could not have written to us immediately after
that PSC decision.
19.12 Moreover, a draft Council Decision was circulated
to Member States for discussion on 12 February. Given how straightforward
the eventual outcome was in drafting terms, it is extraordinary
that it took so long for the EEAS to produce it — which,
once again, demonstrates the hollowness of whatever assurances
the Minister may have received in response to his representations
to the new High Representative (Federica Mogherini) in December
2014 about the importance of early publication of documents to
allow adequate time for scrutiny to take place.
19.13 Even so, the Minister could have brought
us up to date and alerted us in time for our meeting on 18 February.
Instead, the Decision was officially adopted by written procedure
on 19 February, and we did not learn about this until we received
his Explanatory Memorandum until 5 March.
19.14 We operate only on the basis of Explanatory
Memoranda and, thereafter, letters from Ministers in response
to questions raised, or observations or requests made, by the
Committee. The Minister suggests that he is himself unhappy with
the way this matter has been handled. In other circumstances,
we would ask the Minister to provide a more detailed explanation
as to why these opportunities were not taken to keep the Committee
informed. But the House will shortly be dissolved, prior to the
general election. On this occasion, therefore, we look to the
future.
19.15 Sometime this summer there will be a new
government, and a new Committee. In the meantime, we ask the Minister
to initiate a "lessons learned" review in his Department,
the purpose of which would be to ensure that the requirements
of the "upstream" scrutiny is embedded in all parts
of the FCO whose business is touched by the CSDP and ESDP process.
The Committee, as the Minister will assuredly acknowledge, is
entirely understanding of overrides that arise out of genuine
operational requirements (e.g., currently, the regime operating
in the context of the Ukraine crisis). But this is not the case
here. Our requirements are simple that, when a Council Decision
is presented to the Committee for scrutiny, on restrictive measures
or a mission, it contains no surprises; i.e., that it has been
preceded by correspondence that prepares the ground and enables
the Committee, if appropriate, to respond along the way. In some
instances, this happens; in others, such as this, tricks are missed.
Departments with perhaps more "churn" than others, because
of desk officers' peripatetic responsibilities, must ensure that
the scrutiny process is truly embedded, and not prone to job holders
moving on and replacements having to learn "on the job",
as the need arises.
19.16 We therefore ask the Minister to do what
he can to ensure that a system is devised whereby this essentially
simple process — of keeping Committee requests under review,
and writing as and when requested, or because it is in other ways
timely to do so — is embedded in FCO policy departments
who handle this business, and becomes part of the overall scrutiny
process to which he has so often professed himself committed.
19.17 In the meantime, we now clear the documents.
Full details of the documents:
(a) Council Decision (CFSP) 2015/277 of 19 February 2015 amending
Decision 2011/101/CFSP concerning restrictive measures against
Zimbabwe: (36694) —; (b) Commission Implementing Regulation
(EU) 2015/275 of 19 February 2015 amending Council Regulation
(EC) No. 314/2004 concerning certain restrictive measures in respect
of Zimbabwe: (36695) —.
Background
19.18 The EU first imposed Restrictive Measures on
Zimbabwe in 2002, following the escalation of political violence
related to the elections that year. The Measures were introduced
to put pressure on those considered responsible for the violence.
These measures have been renewed, in some form, each year since
2002. Since February 2012, the Restrictive Measures have been
progressively suspended, in order to facilitate dialogue between
the EU and the Government of Zimbabwe.
19.19 The full background is set out in our Report
of 22 February 2012;[66]
subsequent developments in the later Reports cited below;[67]
and most recently in our 2014 Reports.[68]
19.20 In brief, a Constitutional Referendum in Zimbabwe
on 16 March 2013 was judged to have been well-managed and peaceful.
Thus, in March 2013, the Council agreed to suspend — though
not lift — sanctions against 81 individuals and eight entities;
it did not, however, suspend the listings of ten individuals,
comprising President Mugabe, Grace Mugabe and a core group of
senior Zanu-PF officials prominent in the operation of the security
sector; it also left two entities under active restrictive measures
— the mining parastatal (ZMDC) and the defence parastatal
(ZDI). Then, after the July 2013 elections, ZMDC was delisted
in line with an EU internal agreement so to do if the EU judged
that it had not been involved in undermining the free and fair
conduct of those elections.[69]
19.21 The two Council Decisions adopted in February
2014 incorporated the latest manifestation of the "targeted
measures":
— the customary EU "travel ban + asset
freeze package", and embargoes on arms and internal repression
items, was maintained until 20 February 2015;
— the travel ban and asset freeze was suspended
on a further eight individuals;
— two individuals and one entity: "Robert
and Grace Mugabe; Zimbabwe Defence Industries" remained actively
subject to these measures (i.e. the suspension did not apply to
them); and
— the validity, and suspension, of the
Article 96 "Appropriate Measures" was extended until
1 November 2014.
19.22 The "Appropriate Measures" permitted
under Article 96 of the Cotonou Agreement when an ACP[70]
country is guilty of egregious breaches of its Article 8 "good
governance" provisions. Thus Council Decision 2002/148/EC
was introduced after the first "stolen" election in
2002. The Council introduced them because of serious violations
of human rights and of freedom of expression, association and
peaceful assembly, and in response to attempts by the Zimbabwe
government to prevent free and fair elections, notably by refusing
access for international election observers and the media. They
were renewed annually over the following decade.
19.23 The main features of the Article 96 measures
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 in support of the 2009
General Political Agreement; no effect on humanitarian support;
channelled exclusively through multilateral organisations such
as the UN and civil society organisations and not through Government
channels.
19.24 As the then Minister at the Department for
International Development (Lynne Featherstone) recalled in her
letter to the Committee of 29 October 2014, the EU:
"suspended their application in July 2012 in
response to progress on a range of issues by the government. The
Appropriate Measures have remained in suspended form since (having
been renewed in August 2013 and February 2014). At the last review,
EU Member States agreed that unless they saw a 'serious deterioration
in the governance and human rights situation', the Appropriate
Measures would automatically lapse on 1 November. Member States
agreed in February that a review before November was the best
approach given timelines for the EU's internal planning for the
11th European Development Fund (EDF). The EDF provides support
to African, Caribbean and Pacific (ACP) countries who are signatories
to the Cotonou Agreement."
19.25 When, on 5 February 2014, the Committee cleared
the Council Decisions, it asked the Minister for Europe, who had
submitted them jointly for scrutiny, to write to us in October
2014 and outline the direction that the review process was taking,
his expectations of the final outcome, and his views on it.
19.26 In responding, the then DFID Minister said
that:
— in early October, Member State officials
and the European External Action Service (EEAS), drawing on the
advice of EU Heads of Missions in Harare, assessed the situation
as "stable but fragile", and agreed that, "while
there had been less progress than we might hope for on a range
of issues", they had "not witnessed a serious deterioration
since February, and in some areas had seen improvements";
— as such, the conditions for renewing
the Appropriate Measures beyond 1 November 2014 had not been met;
— in practice, the lapse of Appropriate
Measures "would have no material impact on the way the EU
provides aid to Zimbabwe";
— the EU was planning to continue to channel
support through partners such as the UN and Civil Society Organisations
until 2017 at least;
— in November 2014, she expected the EU
to present a National Indicative Programme (NIP), setting out
a proposed programme of support worth €234 million to Zimbabwe
from the 11th EDF in 2014-20;
— average annual support was envisaged
of €33.4million, almost exactly the same as the annual average
provided from the EDF between 2009 and 2013 (€33million);
— the EU was not proposing that any aid
went directly through Government of Zimbabwe Ministries; and
— DFID did not put funds directly through
Government of Zimbabwe systems and decisions on how EU aid was
provided had no bearing on the UK's bilateral aid programme to
Zimbabwe.
The Council Decision and the Council Implementing
Regulation
19.27 These instruments continue all EU Restrictive
Measures against Zimbabwe until 20 February 2016, apart from against
five deceased individuals (who have been removed).
The Government's view
19.28 In his Explanatory Memorandum of 5 March 2015,
the Minister for Europe recalls that the restrictive measures
comprise an arms embargo, targeted asset freeze and, for individuals,
a travel ban, and that prior to the adoption of this Council Decision
and Council Implementing Regulation, 91 individuals and nine entities
were listed; and says:
— the asset freeze and travel ban continue
in suspended form in respect of 84 individuals and eight entities,
with the measures remaining in full effect against Robert Mugabe,
Grace Mugabe and Zimbabwe Defence Industries only;
— five deceased individuals have been removed
from the listing.
19.29 The Minister describes restrictive measures
as:
"one of the EU tools to promote the objectives
of the Common Foreign and Security Policy, which include: preserving
peace, developing and consolidating democracy, and the Rule of
Law and respect for Human Rights and fundamental freedoms.
They are designed to bring about a change in policy or activity
by the target country, entities or individuals. Measures are therefore
always targeted at such policies or activities that have prompted
the decision to impose Measures, the means to conduct them and
the persons responsible for them."
19.30 In the specific case of Zimbabwe, "the
Measures aim to support the Zimbabwean people to achieve a more
prosperous and democratic future".
19.31 The Minister then says:
— "discussions on this year's renewal
of Restrictive Measures concluded on 4 February 2014 at the EU
Political and Security Council[71]
meeting;
— "the UK approach to these discussions
was guided by two key principles:
a) "that the package of 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); and
b) "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."
The Government's view
19.32 The Minister makes the following additional
comments:
"The attached Council documents were adopted
to ensure that all Restrictive Measures continue to be legally
robust, responsive to the situation on the ground and relevant
to the objectives of the sanctions 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 continue the Restrictive Measures
in full (with the exception of 5 deceased individuals) reflects
ongoing EU concerns around the human rights situation and the
need to address outstanding political reform in Zimbabwe. On the
whole, Member States assessed there were no grounds to warrant
the scaling back of the Measures, including those already suspended,
at this juncture. The Measures therefore remain in place against
a small and targeted number of individuals and entities and aim
to support the Zimbabwean people to achieve a more prosperous
and democratic future."
19.33 Finally, on the timing of his Explanatory Memorandum,
the Minister says:
"The attached documents were published in the
Official Journal of the European Union on 20 February 2015, having
been subject to a Ministerial override of the normal parliamentary
scrutiny process. This is a post-adoption Explanatory Memorandum."
The Minister's letter of 5 March 2015
19.34 The Minister says that the purpose of his letter
is to set out "why the use of an override was necessary in
this case", which he does as follows:
"EU Restrictive Measures against Zimbabwe were
due to expire on 20 February 2015 unless an extension was adopted
before that date. Unfortunately, draft Council documents were
not available in time to allow for Parliamentary Scrutiny ahead
of the 20 February deadline. Allowing measures to expire would
seriously undermine the effectiveness of the sanctions regime,
and risk asset flight from previously frozen bank accounts in
the EU.
"On 4 February, the EU's Political and Security
Committee agreed to a full 12 month rollover of the EU's Restrictive
Measures against Zimbabwe. This agreement continues: i) asset
freezes and travel bans against President Mugabe, the First Lady
and one entity, Zimbabwe Defence Industries; ii) an arms embargo;
and iii) suspended asset freezes and travel bans against a further
84 individuals and 8 entities. It was also agreed that five deceased
individuals would be removed from the suspended listings. This
was an excellent result and met all of our policy objectives.
"On 12 February, a draft Council Decision to
this effect was circulated to Member States for discussion. The
Decision was officially adopted by written procedure on 19 February.
"Ideally the draft Council Decision would have
been available several weeks earlier, to allow the UK to undertake
the normal scrutiny process. In ESC Report 35761-35762 the Scrutiny
Committee expressed their concern that the 2014 Restrictive Measures
annual review had "come down to the wire", and asked
that this situation not be repeated. Sharing your concerns, I
wrote to High Representative Federica Mogherini in December 2014
to highlight the importance of early publication of documents
to allow adequate time for scrutiny to take place.
"Negotiations in Brussels, on the annual review
of Restrictive Measures, were primarily based on a Harare Heads
of Mission's report. Drafting of this report commenced in early
December but was only finalised on 10 January. Earlier completion
was not feasible as Heads of Mission needed to take account of
ZANU-PF's (five yearly) Party Congress in December and the significant
political upheaval that followed. This included the purge of 16
Ministers and elevation of Grace Mugabe to the Politburo. A report
that failed to take account of these issues would not have been
a sound basis for discussions in Brussels.
"Despite UK officials engaging other Member
States on the review at the earliest opportunity, many Member
States were unable to confirm their respective positions until
late January. Given the wide range of views held by Member States,
and the fact that any extension of the Measures required unanimous
agreement of all 28 Member States, discussions took a number of
weeks before agreement was reached. Failure to reach a unanimous
agreement would have resulted in all the Measures lapsing on 20
February. The UK worked hard to secure the best outcome for continuation
of sanctions listings, including lobbying at the highest level.
"As a result, obtaining draft Council documents
in a timelier manner was not possible. Ministerial scrutiny override
was regrettably unavoidable in this case. While I think, given
the timescales involved, an override was necessary, I also believe
that the FCO should have sent you an Explanatory Memorandum earlier
and I apologise for the fact that this was not done."
Previous Committee Reports
None, but see (35761) — and (35762) —:
Twenty-fifth Report HC 219-xxiv (2014-15) chapter 12 (10 December
2014) and Thirty-fourth Report HC 83-xxxi (2013-14), chapter
15 (5 February 2014); also see (35344), — and (35345),
—: Seventeenth Report HC 83-xvi (2013-14), chapter 23
(9 October 2013); (35129), —: Ninth Report HC 83-ix (2013-14),
chapter 21 (10 July 2013); (34846), — and (34847)
—: Third Report HC 83-iii (2013-14), chapter 23 (21
May 2013); Fortieth Report HC 86-xxxix (2012-13), chapter 8
(24 April 2013); (33645), 5820/12 and (33679), —: Fifty-sixth
Report HC 428-li (2010-12), chapter 12 (22 February 2012).
64 Described in the Zimbabwe Independent, a business
weekly, a year ago as the "bankrupt state-owned Zimbabwe
Defence Industries (ZDI), a company that manufactures and supplies
army uniforms, field equipment and ammunition for both the domestic
and international markets, [and which] is now buying and selling
scrap metal to keep afloat amid reports the majority of its workforce
has been sent on forced leave".
A more recent local report cites company
general manager (Retired) Colonel Tshinga Dube as telling the
Sunday News that ZDI "is in dire straits because of a tight
liquidity crisis precipitated by Western sanctions which have
prohibited its US and European Union (EU) customers from doing
business with it since 2002", which has been "actively
compounded by high local production and costs for small arms ammunition
- its remaining principal product - when compared to mass producers
like China", a huge salary bill and failure to sell its stockpile
of small arms ammunition due to a lack of funding from the ZDF
and the Zimbabwe Republic Police, which had remained the principal
consumers after the US-EU embargo shut down the external market
- all of which has led to the company temporarily ceasing operations
while contemplating a final shutdown. See Nehanda Radio. Back
65
Twenty-fifth Report HC 219-xxiv (2014-15) chapter 12 (10 December
2014). Back
66
(33645), 5820/12 and (33679), -: Fifty-sixth Report HC 428-li
(2010-12), chapter 12 (22 February 2012). Back
67
(35344), - and (35345), -: Seventeenth Report: HC 83-xvi (2013-14),
chapter 23 (9 October 2013); (35129), -: Ninth Report HC 83-ix
(2013-14), chapter 21 (10 July 2013); (34846), - and (34847),
-: Third Report HC 83-iii (2013-14), chapter 23 (21 May 2013);
Fortieth Report HC 86-xxxix (2012-13), chapter 8 (24 April 2013). Back
68
Thirty-fourth Report HC 83-xxxi (2013-14), chapter 15 (5 February
2014) and Twenty-fifth Report HC 219-xxiv (2014-15) chapter 12
(10 December 2014). Back
69
(35344), - and (35345), -: Seventeenth Report: HC 83-xvi (2013-14),
chapter 23 (9 October 2013); (35129), -: Ninth Report HC 83-ix
(2013-14), chapter 21 (10 July 2013); (34846), - and (34847),
-: Third Report HC 83-iii (2013-14), chapter 23 (21 May 2013);
Fortieth Report HC 86-xxxix (2012-13), chapter 8 (24 April 2013). Back
70
The African, Caribbean and Pacific group of States, who are the
EU's principal development partners, and the principal beneficiaries
of the European Development Fund, or EDF. Back
71
We presume that the Minister is referring to the Political and
Security Committee: i.e., 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. The chair is nominated by the HR. Back
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