Harare - The bases for the European Union sanctions on Zimbabwe have been that the government in Harare does not respect the rule of law and that it engages in human rights abuses.
Now, a lawsuit by Zimbabwe’s Attorney-General Johannes Tomana in the European Court in Brussels, Belgium – the seat of the EU – threatens to expose the hypocrisy of the claims.
Analysts privy to the contents of the court application say it is the EU that is, in fact, in breach of its own rules, international law and basic principles of human rights by imposing and maintaining sanctions on Zimbabwe.
The EU imposed the sanctions in 2002, about a month before Zimbabwe held a Presidential election that was subsequently won by President Robert Mugabe by some 400 000 votes in an electorate of around five million.
Since then, Zimbabwe has argued that the sanctions are meant to cripple the economy and push President Mugabe out of power while the EU and its sympathisers claim the embargo is “targeted” at a few individuals.
Zimbabwe’s position has been backed by SADC, COMESA, the Africa Union, the SADC Parliamentary Forum, the Pan African Parliament and the Non-Aligned Movement – but the EU has ignored this.
Twelve years after imposition of the sanctions, Zimbabwe has finally done what many people have been urging it to do: file a legal challenge that will lay bare the full facts of the matter.
AG Tomana and 120 others filed the challenge on behalf of the government of Zimbabwe on April 25, saying the sanctions are illegal because they were imposed in violation of the EU’s own rules and regulations.
They are assisted by British barristers David Vaughan, Maya Lester and Robin Loof; and Zimbabwean lawyers Farai Mutamangira and Gerald Mlotshwa.
The suit also shows how the measures infringe on the rights of the individuals targeted by the travel embargo component of the sanctions regime.
The Legal Basis
Observers note that the challenge hinges on the argument that imposition of the unilateral sanctions is a violation of the rule of law.
Political scientist, Professor Jonathan Moyo, says, “It (the case) exposes the fact that the EU imposed its widely-condemned economic sanctions against Zimbabwe in a self-indulgent manner that has shockingly disregarded the rule of law by trampling on its own regulations and policies with the dire consequences of wantonly violating the human rights of not only those Zimbabweans who are alleged to be targeted by the illegal sanctions but also harming the rights of ordinary Zimbabweans in general.”
Prof Moyo adds that when the sanctions were first imposed in 2002 they only included 20 individuals who were described in terms of EU Council Regulation Number 310/2002 as “individual members of the government (of Zimbabwe) and natural or legal persons associated with them”.
“In July 2009, the EU sought to escalate its sanctions onslaught against Zimbabwe by proposing new regulations whose purpose was to broaden its 2002 and 2004 regulations to include people who were not members of the government of Zimbabwe or their associates who were described as ‘other natural or legal persons whose activities seriously undermine democracy respect for human rights and the rule of law in Zimbabwe’.
“The EU proposed new regulations because the 2002 and 2004 regulations did not permit the inclusion of the category of people proposed in July 2009 and that category could have been legally included in terms of the rule of law only if the 2002 and 2004 regulations were first amended.”
The EU, Prof Moyo says, did not enact the new regulations but went ahead to add new persons on the sanctions list.
“This has been a blatant violation of the rule of law which the EU claims to champion.”
Prof Moyo contends that the sanctions were imposed not because Zimbabwe was a threat to any EU Common Foreign Policy and Security Policy positions, but rather because the British wanted to internationalise a bilateral dispute over land.
Prof Moyo argues that the lawsuit shows that the sanctions are not in tandem with EU laws.
“The AG’s lawyers make clear that both the 2002 and 2004 EU regulations used to impose sanctions against Zimbabwe were enacted as unilateral measures not supported by any international law instruments because the United Nations has never imposed sanctions on Zimbabwe.
“In fact, a draft United Nations (Security Council) resolution sponsored by Britain to impose sanctions against Zimbabwe in 2008 failed after suffering a double-veto from Russia and China.”
Breach of Rules
The EU has in the past conceded that it is in breach of its own regulations when it comes to the matter of Zimbabwe.
A 2006 study by the EU to evaluate the coherence, co-ordination and complementarity among member states in application of Article 96 of the Cotonou Partnership Agreement (CPA) admitted that the sanctions were rushed in to try and influence the 2002 Presidential elections against President Robert Mugabe.
The study was carried out by the Netherlands, the United Kingdom, France and Belgium and it can be found at ISBN 978-90-5260-264-6 (using most Internet search engines), or at www.three-cs.net/resource_corner/ongoing_studies.
The CPA came into force in 2000 as a replacement of the 1975 Lomé Convention, as a framework guiding relations between 77 countries from the Africa-Caribbean-Pacific bloc and the EU.
Article 96 of the CPA outlines the procedures to be followed if a country is deemed to be in violation of governance, rule of law and human rights requirements as defined in Article 8.
The study was in five parts, which clearly showed Zimbabwe had been given a raw deal.
Page 73 of the study says, “The fact that the EU decided to commence the Article 96 process (to impose sanctions) even though no effective dialogue had taken place under Article 8 points toward incoherence in the EU approach, since the aim of the EU had been to proceed to Article 96, only if dialogue did not solve the problem.
“The explanation for the haste was the forthcoming elections (2002 Presidential elections). In other words, foreign policy goals were safeguarded and considered more important than the partnership principle in the Cotonou Agreement.”
In essence, sanctions were imposed to influence the 2002 Presidential elections against President Mugabe.
According to the CPA, countries should engage in dialogue for a maximum of 60 days over any contentious issues and the accused should have a chance to respond to any allegations before a decision is made, which was not the case with Zimbabwe.
“The Commission and the Council Secretariat were already preparing the papers for the passing of sanctions against Zimbabwe. This again points to incoherence as the EU was not waiting for Zimbabwe’s response, even though the aim of the consultations had been to try and solve the problem,” the study says.
On Page 55 it says, “Article 96 has usually been considered as an instrument of last resort instead of an instrument that could be used to prevent major constitutional crises.
“It is often initiated in a reactive manner only after flagrant breaches of the essential elements have taken place. Zimbabwe is an exception in this regard.”
On page 74, it is noted: “When the EU imposed smart sanctions, many Zimbabweans observers accused the EU of double standards. Some EU member states also saw grounds for such accusations, since there were worse cases, which had not even let to discussion on Article 96.
“The General Affairs Council’s decision to impose smart sanctions on the high officials of the Zimbabweans (who were believed to be in a position to influence the government decisions) was a unilateral CFSP (Common Foreign and Security Policy) measure.”
Even the claim that the sanctions do not affect Zimbabwe’s economy is disputed in the EU’s own study.
On page 19 the report admits: “Since any sanctions or even a threat of sanctions can have negative impacts on the economy (for investments for instance), it is easy to blame the EU for all economic difficulties the country is facing.”
The EU suspended budgetary support under the 7th and 8th European Development Funds National Indicative Programmes, suspended all financial support for basically all projects, redirected most funding to NGOs that are avowed opponents of President Mugabe, and suspended the signature of the 9th EDF National Indicative Programme under the Cotonou Agreement among other economic measures.
So if the EU is aware that the sanctions are hurting ordinary Zimbabweans and that they were implemented in breach of the CPA, why are they being maintained?
The answer could be found in the outcome of a meeting between Susana Roson, the Zimbabwe Desk Officer in the European Commission, and a Zimbabwe official at the Embassy in Brussels in February 2002.
She reportedly told the official that for the EU to backtrack after having issued the threat of sanctions would have resulted in a loss of credibility.
In that meeting, also Roson allegedly admitted that the sanctions regime would have an impact on the entire population of Zimbabwe and not just on the senior government officials.
The 2006 study has other interesting revelations, one of which ties in with Prof Moyo’s assertion that Britain internationalised its bilateral dispute with Zimbabwe to include the entire EU.
On page 70 the report names a group of EU “hardliners” as the UK, the Nordic countries, the Netherlands and Germany.
It is stated on pages 70 and 71 that: “France, Belgium and Spain were moderate. France in particular opposed invoking Article 96, however in line with its agreement with in the UK in Saint Malo in 1998, which stipulated that both countries should respect each other’s Africa policy, it left the EU-Zimbabwe policy largely to the British…
“… there is a Council position, which is very close to the UK position, a French position which is very different, a Commission position which is somewhere in between, and a critical position held by several member states that simply are not comfortable with the current situation.”