UK exposed as AG takes on EU
Saturday, 19 May 2012 20:34
Munyaradzi Huni
Assistant Editor
The underhand role of the British government in the imposition of the European Union sanctions against Zimbabwe has been exposed in a ground-breaking court application filed on April 25 2012 in Brussels against the European bloc by Attorney-General Johannes Tomana and 120 others.
The court application seeking the annulment of the sanctions in the European Court shows that contrary to its rule-of-law mantra, London internationalised its conflict with Harare within the EU “to put pressure on hardliners” in the country in the hope of reversing Zimbabwe’s land reform programme.
The historic court application, to cost millions of dollars in legal fees, will be paid for by friends of Zimbabwe in and outside the country.
A perusal of the 161-page court application exclusively obtained by The Sunday Mail reveals on Page 17 that “the United Kingdom (which proposed that individuals be added to the Contested Measures) has a different foreign policy “strategy”, namely, to “keep pressure on hardliners”.
Whatever the (UK) Minister for Europe meant by “hardliners”, this is not a stated foreign policy objective of the European Union nor one that could justify the extending of restrictive measures to non-state actors in
Zimbabwe alleged to have engaged in criminal conduct in the past”. This revelation confirms a long-standing view held by most Zimbabweans that Britain used its allies to internationalise its bilateral conflict with Zimbabwe.
In January 2010 former British Foreign Secretary David Miliband let the political cat out of the legal bag when he told his country’s House of Commons that “in respect of sanctions, we (British government) have made it clear that they can be lifted only in a calibrated way, as progress is made and, above all, we are guided by what the MDC says to us”.
Recently, British Ambassador to Zimbabwe Deborah Bronnert echoed Miliband’s calibrated stance on sanctions by admitting that the real reason for UK-sponsored EU sanctions against Zimbabwe was British opposition to the land reform on behalf of its kith and kin claiming that, “we do have a problem with the way land reform was undertaken and we feel it was unfair to the individuals affected” adding that “at some point I think we are likely to support a future settlement but I think we are a long way from it and it will require quite a big political shift and a political settlement here for that to be taken forward”.
The application was lodged by a five-member team of high-powered international lawyers who include David Vaughan (Queen’s Counsel) who is leading the team working with Maya Lester and Robin Loof (barristers) and Michael O’Kane (solicitor) who are assisted by Zimbabweans Mr Farai Mutamangira and Mr Gerald Mlotshwa all instructed by Mr Tomana.
According to the application, the British-inspired sanctions —which the EU calls “restrictive measures” — are legally and factually inconsistent with the Common Foreign and Security Policy of the EU and they violate the group’s treaty thereby warranting their contestation in the European Court.
It is being contested that when it imposed the condemned sanctions, the EU Council and Commission legally erred in that they:
* Included individuals in the Contested Measures without a proper legal basis for doing so;
* Manifestly erred in considering that the criteria for listing in the Contested Measures were fulfiled;
* Failed to give adequate or sufficient reasons for including individuals and entities;
* Failed to safeguard the applicants’ rights of defence and to effective judicial review; and
* Infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of their property, business, reputation and private and family life.
In justifying its sanctions, the EU has claimed to be targeting individuals and entities “whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe”. When the EU sanctions were extended on February 17 2012 against the Zimbabwean applicants who have taken the EU to court, Catherine Ashton, the EU’s foreign affairs and security policy chief, claimed that “the (EU) council was only retaining in the Contested Measures in 2012, the particular individuals and entities who the council ‘still considered to be involved in or associated with policies and activities that undermine human rights, democracy and the rule of law”.
But the court papers filed on April 25 in Brussels on behalf of the Zimbabwean applicants by David Vaughan and his legal team show in tightly argued details that it is factually false and legally unsustainable for the EU to assert that the Contested Measures only retain those individuals and entities that are alleged to be continuing “to be involved in or associated with policies and activities that undermine human rights, democracy and the rule of law”.
This is because the sanctions purport to be targeting members of the Government of Zimbabwe (which should mean the GPA government) yet the fact is that the measures entirely target the previous Government of Zimbabwe.
Some of the Zimbabwean applicants now challenging the EU in Brussels in the landmark case have been included on the recommendation of the British government as confirmed by the court papers on grounds that “they are said to be a Zanu-PF member of government or member of a Zanu-PF faction”.
The applicants strongly contend that “being a Zanu-PF member of the Government or a Zanu-PF faction is legally insufficient and is inadequate as a ground for including an individual or entity in the Contested Measures” because it is not an allegation of wrongdoing at all let alone an allegation of current involvement in activities that allegedly seriously undermine democracy, respect for human rights and the rule of in Zimbabwe”.
The lawyers of the applicants argue on Page 20 of the application that “being a member of a political party is a constitutional right in Zimbabwe. Zanu-PF is a political party. Being a member of the Government is plainly a legitimate and important occupation. The Contested Measures do not authorise the inclusion of individuals on the basis that they hold a position in the Government of a third country, still less that they are a member of a one party”.
At the core of the legal case is the fact that, although the EU in general and Britain in particular, make a lot of noise about the rule of law, the Zimbabwean legal challenge shows that the rule of law has been violated with the consequence of exposing Britain because:
None of the applicants was given any evidence in advance of the Contested Measures being adopted (or at any time since then) to support any of the grounds on which each of them has been included.
None of the applicants was given an opportunity to comment on that evidence used against them (if any is available) before the Contested Measures were adopted or at any time since then.
The Contested Measures do not guarantee that evidence will be disclosed and that an opportunity is given to comment on that evidence before a decision to impose them is made.
The Contested Measures make serious allegations of criminal conduct without giving any indication of the source of those allegations and without any regard to the data protection that would arise if the Council or Commission is processing data concerning criminal offences or convictions.
Asked for a comment on the case Attorney-General Tomana said “it is better for the court papers to speak for themselves and for the court to decide hopefully as soon as possible after the other side has filed its response. All I can tell you is that we have a legally formidable case which is as strong as our political position which is formidably just”.
See the full founding statement of the applicants here.
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