THE government of Zimbabwe blames the country’s steep economic decline in the decades after 2000, on sanctions imposed on Zimbabwe, particularly those of the European Union (EU) and United States (US).
The government has framed these measures as an international trade embargo against Zimbabwe and, because they do not have the imprimatur of the United Nations Security Council, maintain that they are illegal.
The measures imposed by the US, EU and other western countries, are neither a trade embargo against Zimbabwe nor purport to bind all countries of the United Nations.
The legality of the measures imposed by the EU was upheld in two legal suits brought before the General Court of the Court of Justice of the European Union.
The cases were reported as (former Prosecutor-General Johannes) Tomana and Others v The Council of the European Union and European Commission Case C 330/15 P and Aguy Georgias and Others v The Council of the European Union and European Commission Case T 168/12. Significantly, the applicants in both cases were only the targeted individuals affected by the measures. The Government of Zimbabwe was not a party to either suit.
In the Tomana case the applicant was Johannes Tomana (then the Attorney-General) and 120 other individuals on the EU sanctions list. Despite this, the suit was conducted under the auspices of the Attorney-General, leading to the suspicion that legal costs, reported to be “millions of dollars” were met by Zimbabwean taxpayers.
The Sunday Mail suggested that the costs, which included the engagement of two local lawyers and top council from the United Kingdom, were paid by “friends of Zimbabwe inside and outside the country”. When reporting on the proceedings, state media incorrectly stated that Tomana had brought the suit on behalf of the Government of Zimbabwe.
In August, 2019 the Sadc summit in Tanzania declared October 25 as the day on which “Sadc member states can collectively voice their disapproval of the sanctions (on Zimbabwe) through various activities and platforms until the sanctions are lifted.”
What, then, are the “sanctions” imposed by the EU and US and will lifting them significantly improve Zimbabwe’s economy?The European Union
In January 2002, the EU Council, reviewing consultations taking place under article 96 of the Cotonou Agreement, expressed its serious concern about the situation in Zimbabwe, noting the escalation of violence, intimidation of political opponents and the harassment of the independent press.
It specifically warned that appropriate measures would be taken if there was any interference with the EU Election Observer Mission for the March 11, 2002 presidential election in Zimbabwe. In mid-February, the government of Zimbabwe effectively expelled the head of the EU Mission, Pierre Schori, after “taking exception” to his “political utterances” and “political arrogance”.
The EU Council responded two days later, withdrawing the remaining EU election observers from Zimbabwe and, on March, adopting two Common Positions on Zimbabwe under Council Decisions 2002/145/CFSP and EC/148/2002, both binding on EU Treaty state parties.
Since the Zimbabwe government has tried to cast the punitive measures imposed by the EU, as the EU merely “siding with” the UK in a “bi-lateral dispute with Britain over land redistribution”, it is worth noting that the EU was not the only international body to take action in response to the violent nature and flawed conduct of the 2002 presidential elections and human rights violations.
A month after the EU response, Zimbabwe was suspended from the Councils of the Commonwealth.Council Decision EC/148/2002 related to the “Cotonou Agreement”, a Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States (including Zimbabwe) and the European Community and its member states signed at Cotonou in Benin on June 23, 2000.
The agreement specifically ties measures to enhance trade and co-operation between state parties with “a political environment guaranteeing peace, security and stability, respect for human rights, democratic principles and the rule of law”.
The linkage is intended “to promote and expedite the economic, cultural and social development of the ACP States, with a view to contributing to peace and security and to promoting a stable and democratic political environment”.
Where a party has a concern that these objectives are not being met, Article 8 provides for inter-party dialogue in the hope of averting recourse to the Agreement’s non-execution clause.
A formal request for Article 8 dialogue was made by the EU in February 2001 and accepted by Zimbabwe in March. However, the five meetings which took place to June concerned only discussions around the agenda. Eventually, the aims of the dialogue were set as:
l An end to political violence;
l An invitation to the EU to observe the 2002 elections;
l Concrete action to protect the freedom of mass media;
l Independence of the judiciary and respect for its decisions; and
l An end to illegal occupation of properties.
When discussion failed to yield any results, in October 2001, Article 96 consultations were initiated, and in view of the pending elections, a short timeframe of two months set to achieve the aims given as a deadline — without which “appropriate measures” would be implemented as provided by the Article (96(2)).
The obstruction of the EU Election Observer mission by the expulsion of Schori led to the Council Decision in February, 2001.EC/148/2002
The measures adopted by the Council Decision were:
l The suspension of finance for budgetary support under Zimbabwe’s European Development Fund National Indicative Programmes; and
l Suspension of financial support for all EU funded projects in Zimbabwe except those in direct support of the population, in particular in the social sectors.
EU contributions to operations of a humanitarian nature were not affected and regional projects were evaluated on a case by case basis and continued where appropriate.
This council decision applied an arms embargo against Zimbabwe. An arms embargo by the UK was already in place, from May 2000, on account of Zimbabwe’s entry into the DRC war.
The war had also made the UK uncomfortable about the presence of the British Military Advisory Training Team (BMATT), in the country since independence in 1980, which then withdrew from Zimbabwe six weeks after the council decision.
The council decision also applied an asset freeze and travel ban against 20 listed individuals, increased six months later to 79 (by 2002/754/CFSP).
Individual EU members were to enforce the travel bans while the arms embargo and assets freeze formed part of regulations, EC 310/2002.
Expanded regulations were introduced as EC 314/2004 pursuant to Council Decision 2004/161/CFSP. The Council Decision of 2011/101/CFSP refined and repealed 2004/161/CFSP and became the reference decision for subsequent Common Foreign and Security Policy (CFSP) decisions which amended and added to it.
The arms embargo comprised bans on technical assistance, financing and financial assistance related to military activities, a ban on the export of equipment which might be used for internal repression. Annex 1 to the regulations set out a lengthy list of equipment which falls within the ban.
The restrictive measures were renewed annually by the Council, albeit usually with an updated annex of listed individuals and entities.
The number of people and entities on the list peaked after the violence of 2008, with 203 individuals and 40 entities listed — Council Decision 2009/68/CFSP. Beginning with that year, the reasons for an individual being on the list were added to the annex.
Over the period of the Inclusive Government (2009–2013) the number of the people on the list declined, and derogations allowed for the arms embargo and travel bans.
In 2010, nine entities were removed from the list and in 2013 (after what the EU considered a successful constitutional referendum), restrictive measures on the majority of individuals and entities were suspended (with a further eight following in 2014) and travel restrictions eased slightly.
By 2016, only former president Robert Mugabe and his wife were subjected to a travel ban and asset freeze with restrictive measures against the heads of the five security sectors remaining, but suspended.
The appropriate measures under the Cotonou agreement barring direct aid to the government of Zimbabwe were suspended in August 2012 and, then, by virtue of Council Decision 2014/96/EU expired on November 1, 2014.
Due to the violence of August 1, 2018 and January 2019, Article 8 of the Cotonou agreement providing for political dialogue between the Zimbabwe government and the European Union (EU) was re-activated in June. Further changes in 2019 by 2019/284/CFSP and the death of Mugabe mean that the only current restrictive measures by the EU are as follows:
l Robert and Grace Mugabe and Zimbabwe Defence Industries remain subject to the restrictive measures (although Robert Mugabe is now deceased, the asset freeze would still have application to his estate if any part thereof is in the EU);
l Perence (sic) Shiri, Constantino Chiwenga Philip Valerio Sibanda remain on the list, but the restrictive measures are suspended; and
l The arms embargo against Zimbabwe remains in place.
After Brexit, the UK will continue the measures through the Zimbabwe (Sanctions) (EU Exit) Regulations 2019 made under the Sanctions and Anti-Money Laundering Act 2018.
l To be continued next week
Matyszak is a senior lawyer and research consultant, ISS. This article was first published by Veritas.