October 25th is a public holiday
The subject of sanctions is in everyone’s mind as the government has declared today a public holiday to mark anti-sanctions day. The SADC summit of August 2019 in Tanzania declared 25th October 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”.
Many news outlets have been writing articles about sanctions, often incorporating some facts and large doses of fiction. Also sanctions have frequently been called illegal by the Government and blamed by the Government for Zimbabwe’s economic decline.
What then are the “sanctions” imposed by the EU and US, and are they illegal? It is time for a dispassionate and objective analysis of these questions.
Sanctions Imposed by The European Union
In January 2002, the EU Council 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 measures would be taken if there was any interference with the EU Election Observer Mission for the 11th March 2002 presidential election. In spite of the warning, in mid-February, the Government expelled the head of the EU Mission, Pierre Schori. The EU Council responded two days later on the 18th, adopting two Common Positions on Zimbabwe in two EU Council resolutions which were both binding on EU Treaty States.
Resolution 145 of 2002
This 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] and also applied an asset freeze and travel ban against 20 listed individuals, increased six months later to 79. Expanded regulations were introduced in 2004. The restrictive measures were renewed annually by the Council, albeit usually with an updated annex of listed individuals. The number of people and entities on the list peaked after the violence of 2008, with 203 individuals and 40 entities listed. Beginning in 2008, the reasons for an individual being on the list were added to the annex.
Note: Over the period of the GNU the number of the people on the list declined. 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 President Mugabe and his wife were subjected to a travel ban and asset freeze, with restrictive measures against Perrance Shiri, Constantino Chiwenga, Valerio Sibanda remaining, but suspended.
Resolution 148 of 2002
This Council Resolution brought to a conclusion consultations taking place between Zimbabwe and the EU under Article 96 of the Cotonou Agreement to agree the steps necessary to restore respect for human rights, democratic principles, the rule of law and good governance in Zimbabwe. Article 96(2)(c) of the Cotonou Agreement was then activated under which the EU could impose appropriate measures against Zimbabwe. The measures adopted by the Council Decision were:
- The suspension of finance for budgetary support under Zimbabwe’s European Development Fund National Indicative Programmes.
- 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.
Note: 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 1 November 2014. Due to the violence of 1 August, 2018 and January 2019, Article 8 of the Cotonou agreement providing for political dialogue between the Government of Zimbabwe and the European Union (EU) was re-activated in June. But the arms embargo against Zimbabwe remains in place.
Sanctions Imposed by the United States
The USA has two forms of sanctions against Zimbabwe:
- The first is imposed by Presidential Executive Orders
- The second by the Zimbabwe Economic Recovery and Democracy Act.
Presidential Executive Orders
The President of the United States may impose sanctions on individuals and entities, using powers under the International Emergency Economic Powers Act (50 U.S.C. 1701).
The first order in 2003, Executive Order 13288 declared that:
…the actions and policies of certain members of the Government of Zimbabwe and other persons to undermine Zimbabwe’s democratic processes or institutions, [are] contributing to the deliberate breakdown in the rule of law in Zimbabwe, to politically motivated violence and intimidation in that country, and to political and economic instability in the southern African region.
This Executive Order provides that: “Any transaction or dealing, by a United States person or within the United States, in property or interests in property, blocked pursuant to this order is prohibited, including but not limited to the making or receiving of any contribution of funds, goods, or services to or for the benefit of any person listed or who is the subject of a determination under subsection 1(b) of this order.”
Subsection 1(b) of the order allows the Secretary of the Treasury to make a determination extending the application of the order to agents of listed persons and to entities owned or controlled by them.
In 2008 a further Executive Order, number 13469 expanded the scope of the national emergency declared in the earlier executive order and authorized “the blocking of the property of certain persons determined to have engaged in actions or policies to undermine democratic processes or institutions in Zimbabwe, to have committed acts of violence and other human rights abuses against political opponents, and to have engaged in public corruption”. These actions were deemed “to continue to pose an unusual and extraordinary threat to the foreign policy of the United States”.
Only persons and entities on the list, and their surrogates and agents, are embargoed from trading with “United States persons”. The Executive Orders are therefore not a trade embargo against Zimbabwe.
Individuals on the list are known as Specially Designated Nationals (SDNs). The list is available here The list includes SDNs from every country subject to US sanctions and is difficult to examine but, in relation to Zimbabwe, appears to contain 83 individuals, 20 farm enterprises and 34 entities. Implementation and monitoring is done by the US Treasury Department’s Office of Foreign Asset Control (OFAC) and the listing of SDNs is undertaken by the OFAC in consultation with the Secretary of State. OFAC has made regulations to give effect to the Presidential Executive Order. Details of the “Zimbabwe Sanctions Program” and explanatory notes to the regulations can be found here Unlike the EU Council, however, OFAC has not been assiduous in keeping the list of SDNs updated, and it now contains several people since deceased. The 2003 Executive Order, as amended by the 2008 order, has been continued every year since its introduction.
[Note: the Global Magnitsky Act of 2016 (Public Law 114-328), would have been used had it then been available as it is more appropriate, being designed to sanction those who have engaged in “gross violations of human rights or significant acts of corruption.” It was recently applied against the Gupta brothers of South Africa.]
The Zimbabwe Democracy and Economic Recovery Act [ZIDERA]
The second form of sanctions are against Zimbabwe itself and arise from the Zimbabwe Democracy and Economic Recovery Act of 2001 or ZIDERA. The Act requires the Secretary of the Treasury to instruct the United States’ executive directors to major and specified international financial institutions (IFIs) to vote against the grant of any loans to the Government of Zimbabwe. This requirement is only to be removed upon certification that Zimbabwe has met certain conditions (revised in June 2018 by the ZIDERA Amendment Act) many of which relate specifically to the then pending elections in 2018, and probably require further amendment. The President of the US may waive the requirement of meeting the conditions if he or she believes this to be in the national interest. The electoral conditions are that:
a) The voters roll is released in printed and digital format;
b) ZEC is permitted to carry out its functions in an entirely independent manner;
c) The Defence Forces of Zimbabwe are neither permitted to actively participate in campaigning for any candidate nor to intimidate voters, and must verifiably and credibly uphold their constitutionally mandated duty to respect the fundamental rights and freedoms of all persons and be non-partisan in character;
d) International observers, including from the United States and European Union, are permitted to observe the entire electoral process;
e) Candidates are allowed free and full access to state media, which must afford equal time and coverage to all registered parties in an impartial manner, and candidates must be able to campaign in an environment that is free from intimidation and violence;
f) Civil society organizations must be able freely and independently to carry out voter and civic education, and to monitor the entire electoral process;
g) The president-elect is free to assume the duties of the office.
The other conditions are:
a) The government must implement the 2013 constitution – particularly by “aligning” all legislation that predated the constitution with its provisions and implementing its devolution requirements;
b) The government demonstrates a sustained commitment to reforming Zimbabwe’s economy;
c) The government accounts for diamond revenue in a transparent and credible manner;
d) The rule of law has been restored in Zimbabwe, including respect for ownership and title to property, freedom of speech and association, and an end to lawlessness, violence, and intimidation;
e) The Government of Zimbabwe has demonstrated a commitment to an equitable, legal, and transparent land reform;
f) The Zimbabwean Armed Forces, the National Police of Zimbabwe, and other state security forces are responsible to and serve the elected civilian government.
ZIDERA, is thus not a trade embargo against the country, but applies conditionalities before the US will vote in favour of loans by IFIs to Zimbabwe, when these come up for consideration.
The Government of Zimbabwe has, through the Transitional Stabilisation Programme, indicated that it will implement political reforms that will have the effect of meeting the requirements of ZIDERA, so it is unclear why it finds those requirements objectionable.
It is important to note that the rules of the IFIs require Zimbabwe to repay prior loans before accessing further funding. Zimbabwe is indebted to all relevant IFIs except the IMF, and therefore has not been eligible for loans over the more than two decades that it has been in arrears. For this reason, ZIDERA has never been implemented and the US has never voted against any loans to Zimbabwe.
Are the Sanctions Legal?
Sanctions have been framed as an international trade embargo against Zimbabwe and, because they do not have the imprimatur of the United Nations Security Council, they have been called illegal. However, the measures imposed by the US, EU and other western countries are neither a trade embargo against Zimbabwe nor do they purport to bind all countries of the United Nations. The fact that they were not imposed by the United Nations Security Council does not make them “illegal”. All countries have a sovereign right to limit their dealings with other countries.
Note: 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. (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 targeted individuals affected by the measures, and not the Government of Zimbabwe.