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Papers filed in Zimbabwe case against EU
Ray Ndlovu, Business Day

October 31, 2013

The European Court of Justice has confirmed that the Zimbabwe government has filed a lawsuit against the European Union (EU) in a bid to have restrictive measures imposed against several government officials and companies repealed.

A date for the hearing has not yet been set, although an official at the court, Juan Carlos González Álvarez, said the case was brought to the court in April last year.

The court has already allocated the Zimbabwe litigation a case number, T-190/12.

The Zimbabwe government contends that the sanctions imposed a decade ago by the EU had cost Zimbabwe $42bn in lost revenue, among other economic and political repercussions.

According to papers from the European court, Zimbabwe’s legal challenge will hinge on five main arguments.

In its first argument, the Zimbabwean government accused the EU Council and EU Commission of including individuals and entities on the sanctions list without a proper legal basis for doing so.

"Neither the council nor the commission has the power to impose restrictive measures on nonstate actors in Zimbabwe on the sole grounds of unsubstantiated allegations of criminal misconduct in Zimbabwe," lawyers for the Zimbabwean government said in papers before the court.

The second argument questioned the criteria used for placing individuals on sanctions. According to the court papers, the EU "leaned on their Zanu-PF affiliations and vague unsupported allegations of human rights violations" to place officials on the sanctions list.

In its third argument, the Zimbabwean government said there was no justification given on why the particular individuals were placed on the sanctions list.

It also said, in its fourth argument, that those put on the sanctions list were not given the right of reply that is legally afforded to officials placed on such lists.

The Zimbabwean government also contended that the sanctions by the EU had infringed on the personal liberties of the Zimbabwe officials targeted, their business interests, reputations and also their private lives.

"The defendants failed to give adequate or sufficient reasons for including individuals and entities in the contested measures. They also failed to safeguard the applicants’ rights of defence and to effective judicial review.

"The defendants provided no particulars or evidence in support of their vague assertions of serious misconduct and they provided no opportunity for the applicants to comment on the case and evidence against them," the court papers said.

"The Zimbabwe government also argues that neither the council nor the commission has the power to impose restrictive measures on nonstate actors in Zimbabwe on the sole grounds of unsubstantiated allegations of criminal misconduct in Zimbabwe," the papers said.

"The defendants erred manifestly in considering that the criteria for listing set out in the contested measures were fulfilled. The defendants were not lawfully entitled to include applicants on the sole basis of assertions that they are Zanu-PF members, officials of the government of Zimbabwe or an associate of such a person.

"The defendants were not lawfully entitled to include applicants on the basis of vague unsupported allegations of misconduct stated to have taken place in the past, in many cases before the government of national unity was formed."

Legal observers said it was important to have the EU’s response to each of the arguments tabled by the Zimbabwe government in order to get a fuller picture of the strength of the case.

"We need to know what the EU is saying, so that we can then be able to formulate a fuller picture of the issues at hand, otherwise trying to draw up an analysis at this stage will only be on the basis of what the Zimbabwe government has put forward. It is necessary for the EU to give its opinion on the matter," said legal practitioner Job Sibanda.

Jessie Majome, a lawyer and MDC-T legislator for Harare West, said: "It’s a political issue and not a legal issue. This matter is one of international relations and diplomacy. It boggles the mind why the auditor-general’s office is pursuing this case as it is tantamount to chasing the wind," she said. "The auditor-general ’s legal experience would be better utilised in helping Zimbabwe deal with its backlog of legal issues … a cost-benefit analysis of this case also suggests that the taxpayers’ funds will be wasted in funding a political agenda."

Estella Cigna Angelidis, the administrator principal in the European Court of Justice, said cases that appeared before the court were free.

"I cannot foretell when the case T-190/12 will be heard in public, but you can follow the calendar of the general court and through the internet. Concerning the duration of proceedings by the general court, we can only refer to the average: in 2012 of 22.2 months," said Ms Angelidis.

But Ms Majome said due consideration was supposed to be made of public funds spend on the government lawyers, on travel and accommodation in Europe for the more than 22 months the court might sit.

"It’s a bit far-fetched for the government to be approaching the European Court of Justice over the sanctions issue. It is tantamount to going into the lions’ den. I would be surprised if at all they manage to get a favourable judgment given that they are approaching an EU court to fight the EU’s decisions," Ms Majome said adding it was unlikely that the EU would rule against itself.

The MDC-T is largely credited with recommending the listing and the removal of names of government and Zanu-PF party officials on the sanctions list.

Relations between Zimbabwe and the EU have been fragile since the onset of the land-grab programme by the Zimbabwe government. The EU had promised to remove all sanctions against the government based on the outcome of the July 31 elections.

Although the Southern African Development Community and African Union observers called the election free, the MDC-T said it was a sham.

This led to the EU suspending the lifting of its sanctions.

Neither the (EU) council nor the commission has the power to impose … measures on nonstate actors in Zimbabwe

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