(TALKZIMBABWE) EU sanctions not based on rights violations – Attorney General

EU sanctions not based on rights violations – Attorney General
This article was written by Our reporter on 20 May, at 21 : 19 PM

THE Attorney General of Zimbabwe and 120 others, on April 25, 2012, filed a court application seeking the annulment of the sanctions imposed on Zimbabwe by the European Union. The application was filed in the European Court of Justice. 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 on Page 17 shows that the United Kingdom’s basis for the imposition of sanctions was not predicated on any identifiable human rights violations, but on the need to “keep pressure on hardliners”.

This, according to the AG is not a basis for the imposition of sanctions on non-state actors and is not a stated foreign policy objective of the European Union.

Zimbabweans also contends that the embargo was highly political and Britain used its allies to internationalise its bilateral conflict with Zimbabwe.

In January 2010 former British Foreign Secretary David Miliband told Britain’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”.

This meant that the sanctions regime was imposed and maintained in order to effect regime change in Zimbabwe and not on any human rights violations basis.

The AG’s application was lodged by a five-member team of high-powered international lawyers who include David Vaughan, MBE QC of Brick Court Chambers who is leading the team. He has appeared in over 100 cases before the European Court of Justice and the Court of First Instance of the European
Communities.

Vaughan QC is working with barristers Maya Lester and Robin Loof and solicitor Michael O’Kane.

They are assisted by Zimbabweans Mr Farai Mutamangira and Mr Gerald Mlotshwa all instructed by AG 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.

51 Zimbabweans removed from EU sanctions list

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 that it is factually false 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, preach human rights, they have violated the human rights of the people on the sanctions list.

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.