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Zimbabwe Government hires David Vaughan in Europe sanctions legal fight

Government has engaged a high-powered legal team led by London barrister David Vaughan QC – who has appeared in over 100 cases before the European Court of Justice and the Court of First Instance of the European Communities – to challenge the legality of “restrictive measures” imposed on 112 individuals and 11 corporate entities associated with the Government of Zimbabwe as well as Zanu-PF.

On June 10, 2014, the Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa, Prosecutor-General Johannes Tomana and Deputy Chief Secretary to the President and Cabinet Dr Ray Ndhlukula attended the General Court of the European Union in Luxembourg for the Hearing of the matter between the Government of Zimbabwe and the European Commission and Council.

The team of international lawyers, led by Vaughan and Maya Lester, both of Brick Court Chambers in London, included instructing attorneys Michael O’Kane of Peters and Peters Solicitors from the United Kingdom, Jacob Mutevedzi of Mutamangira and Associates and Gerald Mlotshwa of Titan Law Chambers, both from Zimbabwe.

Government initiated the case in September 2011 through a letter of demand which received a contemptuous response from the EU Council and Commission. The response led to the formal filing of the case on April 25, 2012. The application seeks to have the sanctions declared illegal on five primary grounds:

1. There was no legal basis for imposing sanctions on the individuals and companies associated with the Government of Zimbabwe and Zanu-PF merely on the basis of reports from faceless internet newspapers and non-governmental organisations.

2. There was no legal basis for imposing sanctions on the said individuals and companies on the sole basis that they were Zanu-PF members of the then inclusive Government.

3. The European Union in imposing sanctions had failed to give adequate or sufficient reasons for targeting the said individuals and entities;

4. In imposing sanctions, the European Union had failed to provide particulars or evidence to the affected persons and entities in order to allow them to comment on the case against them, in particular, those cases where serious criminal misconduct was alleged;

5. The European Union had infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of their property, business, reputation and private and family life.

The case was heard by three judges (from Sweden, Bulgaria and Greece) of the General Court in open court with submissions lasting the entire day. The Zimbabwean Government’s Counsel emphasised that only the Security Council of the United Nations has the lawful power to impose sanctions on a member country while the rest of the member countries’ obligation was supportive only. In an interesting development, the United Kingdom intervened in the application and sought to make its own submissions apart from the EU.

It did not attend the hearing and no explanation was given. The decision by the United Kingdom to launch its own submissions when the rest of the EU is being jointly represented has lent credence to Government’s argument that the standoff between the EU and Zimbabwe is a bilateral issue between the Southern African state and the United Kingdom with the latter roping in the EU as a means to lend legitimacy to its hostile foreign policy.

Britain has a bilateral axe to grind following the implementation of the land reform programme, which was tailored to redress colonial land distribution imbalances. The oral hearing in Luxembourg remains open for two weeks to allow all parties to file further documents and, in the case of the United Kingdom, to allow it to make its oral submissions.

Thereafter, it is expected a ruling will be handed down during the course of the year. Legal experts who spoke to The Sunday Mail said the reasons being used to justify the sanctions were flimsy. Mr Misheck Hogwe, a senior attorney with Hogwe, Dzimirai and Partners, believes prospects of Zimbabwe winning the case are high as the punitive measures were imposed outside due process and legal basis.

“The question that should be asked is: Were the sanctions imposed as a result of a standard process? Some of the reasons given for imposing the sanctions were false reports and unsubstantiated claims,” said Mr Hogwe.

“This is why the world’s most reputable organisation, the United Nations, has not endorsed the sanctions. Some of the entities and companies were put under sanctions for undermining democracy and human rights but they are not, in any case, synonymous with the State to warrant sanctions.

“Any reasonable court will see that there is no basis for the sanctions. The chances of winning the case are high as long as the tribunal is impartial.”

Mr Rainor Robinson, a Harare-based lawyer, said the sanctions should be rendered null and void to pave way for dialogue. “Another argument that we can put in for our case is the sanctions should be removed so that we can engage with those that imposed the measures at Government level.

“The sanctions are affecting the economy and they are not helping anyone. So, the best way is to dialogue and seek solutions where there are problems.”

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