by Alex T. Magaisa
Bad news is hard to sell. It’s a nightmare for purveyors of propaganda. When you specialise in propaganda, it is incredibly difficult to spin hard facts and when you try, you end up looking very silly.
This is the case with the EU sanctions judgment which the state daily, The Herald reports today under the kind headline, “EU Ducks Zim’s $US50 bn claim”.
They want you to believe that the European Union, which they were suing, has somehow “ducked” the claim. No, the EU has not “ducked” Zimbabwe’s claim. The claim by the individuals who were suing the EU has, rather simply, been “dismissed” by the General Court of the European Union. That is the fact. Here is what the judgment, released on 22nd April states in clear terms:
“THE GENERAL COURT (Eighth Chamber) [of the EU]
1. Dismisses the action [by the Zimbabwean individuals]”
This is the fact – that the ill-advised action has been dismissed for lack of merit. To say the EU “ducks” the claim is a poor attempt to soften an otherwise heavy blow. The EU has not avoided the claim, as the word “duck” suggests. Rather, the individuals who brought a case against the EU have lost their case. Simple.
But it is hard, isn’t it, for these people to admit to Zimbabweans that they have lost the case and not only that, but that they have been ordered to pay the heavy costs of this action? Which is why it makes sense for them to say the EU “ducked” the claim rather than that they have lost the case simply because the court found that it had no merit.
There is also gross misinformation that this was a case brought by Zimbabwe against the EU. No this was not a claim by Zimbabwe but by individuals and companies in their personal capacity.
Reading the judgment, it is clear that this was an action by individuals and companies that were subjected to targeted sanctions by the EU. Nowhere in the judgment is it suggested that the Government of Zimbabwe was a party to the action. It could not be because, in truth, the sanctions have never been against the Government of Zimbabwe but against individuals and companies – which is why they are called targeted sanctions.
It was these individuals and companies who were making a claim against the EU and it is these individuals, not Zimbabwe, who have lost the case. They are not Zimbabwe.
Further, it is important to note that this was not a claim in damages but for the annulment of the EU sanctions order. It is this claim to annul the sanctions order that was dismissed. It’s not clear where the alleged $50 billion claim is coming from, unless it was part of the original propaganda claims. The court did not rule on a claim for damages but on the legality of the targeted sanctions against individuals and companies.
When the then Attorney-General Johannes Tomana launched the legal action a few years ago, it was reported by the same paper as if they had a sound case and that the they were certain of victory. Some of us doubted the soundness of the claim and thought it was a sheer waste of taxpayers’ money. But they went ahead anyway and hired very expensive London barristers.
When the matter was argued, Tomana led a team of local lawyers all the way to Europe. They were not acting pro bono. They were billing probably the Government, notwithstanding the fact that these were personal claims by individuals on the sanctions list. So while the taxpayers must count the cost of poor decision-making, you can be sure that the lawyers are smiling all the way to the bank. And God knows who else is taking a share of that cake.
All along an impression was constructed in the state media that they had a strong case and that the EU would be embarrassed. Even as recently as Monday, they were announcing to the world that the sanctions judgment was due on Wednesday, probably preparing for celebration. If they had won that case, we would not have heard the end of it. The drums would be beating all day and night, with experts crawling from everywhere to offer their opinions, all pointing to the notion of vindication – that finally they had been vindicated.
But they were naïve if they really expected a positive result in this case. They weren’t serious. One is left with the distinct impression that this was no more than a money-spinning scheme because you can be sure that the legal fees in this case are enormous.
Now that the claim has been dismissed by a court of law, which they voluntarily approached and whose jurisdiction they accepted, what does it say about the propaganda on sanctions? If they had succeeded, they would be pointing to it as firm evidence of illegal sanctions and that they, not their incompetence, were the cause of the country’s economic crisis. Now that they have lost, will they have the decency to admit that they were wrong? Or will they start accusing the EU Court of being biased against them? If so, one would be tempted to ask why they approached it in the first place! They were not forced to go to that court. They went there willingly and accepted its jurisdiction.
Some lawyers sympathetic to Government say there is no reason to despair over the negative judgment because in their opinion, the EU has since softened its stance towards Zimbabwe. This is complete nonsense. If it is so important that the EU has softened its stance, why did they persist with the case when they saw that the EU was softening? Why did they not withdraw when they started engaging in dialogue? Is it not because they were adamant that they would win and that for them, winning was important because it would represent greater political leverage and give them political capital in their bid to maintain power? Does the loss not weaken Zimbabwe’s negotiating position as the EU can now point to a judgment which says there was nothing illegal about their sanctions?
Another consequence of this judgement is that it blows apart the repeated claim that Zimbabwe has been under “illegal sanctions”. In a way, they have worked hard to disprove their claim that the sanctions were “illegal”. President Mugabe and Zanu PF have always railed against the EU and the US for imposing “illegal sanctions”. Now that they went to a court of law which has ruled that there was nothing “illegal” about the sanctions, will they stop their useless rhetoric over “illegal sanctions”?
The truth is that, politically, the Government’s legal advisors messed up and diluted the propaganda lines. Zanu PF cannot now go around claiming “illegal sanctions” because they went to court and a court has ruled that the sanctions were, in fact, legal. If anything, Zanu PF has allowed an external arbiter to validate the sanctions and in the process exposed the emptiness of their “illegal sanctions” mantra.
Another consequence of this judgment is that it has created a firm legal precedent not only regarding the legality of the sanctions but also the basis upon which those sanctions were imposed. Reading through the 303-paragraph long judgment, one is struck by the meticulous manner in which the court scrutinised the evidence, making important legal statements on the conduct of the various individuals cited in the matter. The individual applicants in this matter should be very worried about the legal implications of this judgment.
And therein lies the folly of this action – here’s a regime which is notoriously unwilling to submit itself to judgment by external actors, which, through this legal action has allowed itself and its conduct to be thoroughly examined and subjected to legal judgment by an external court. And worst of all, from a European Court. The irony is that this is the same Government which led the closure of the SADC Tribunal.
However, missing entirely from The Herald’s report today is the issue of legal costs and who is expected to bear them. It is important for taxpayers and Zimbabweans in general to know because it is likely that they will be made to carry these huge costs. The relevant part of the judgment is as follows:
“THE GENERAL COURT (Eighth Chamber)
1. Dismisses the action;
2. Orders Mr Johannes Tomana and the 120 other applicants listed in the annex hereto to bear their own costs and to pay the costs incurred by the Council of the European Union and the European Commission …”
This means that the individuals who took this legal action must bear their own legal costs. These are likely to be substantial costs. They used at least two London barristers, one of them a QC. QCs are top barristers who can charge thousands of pounds per hour in legal fees. However, I doubt that these individuals will carry their own legal costs personally, even though these were personal claims against personal sanctions. Instead, these costs will most likely be borne by the Government, and therefore by the taxpayers.
This will be the case, notwithstanding the fact that all these individuals are very wealthy individuals in their own capacity. They all have mansions, luxury cars, their kids go to expensive private schools and universities, they have large farms and they don’t even pay toll-gate fees on the roads. Yet they won’t pay their costs. The taxpayer will be saddled with these costs. This shouldn’t be the case. The taxpayer should not have to carry these legal costs.
Second, in line with the principle that he who loses pays the costs, these individuals have also been ordered by the court to pay the costs of the two bodies that were sued, in this case, the costs incurred by the Council of the European Union, the legislative arm of the EU and the European Commission, which is the executive body of the EU. These are likely to be very substantial costs. Again, the individuals and not the Government should be paying these costs. But it is likely that the Government will be made to carry these costs.
These are the things that The Herald or the Government generally will not tell Zimbabweans. They will say the EU ducked their claim instead of telling it like it is – that they lost the case they had brought; that it was dismissed for lack of merit. They will not tell you that they were ordered to pay the substantial legal costs and that these substantial legal costs will in fact be shifted onto the already burdened shoulders of the taxpayers.