Communication from the Commission to the Council concerning the opening of consultations with Côte d'Ivoire under Article 96 of the Cotonou Agreement
Date: 2004-08-10
Institutions: European Commission
Subjects: Côte d'Ivoire, EU relations, audit, electoral reform, human rights, organisation of elections, political situation, political violence

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 10.8.2004 
COM(2004) 547 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 

concerning the opening of consultations with Côte d'Ivoire under Article 96 of the 
Cotonou Agreement 

EN 

   EN 

 
 
 
  
1.  The  peace  agreement  signed  at  Marcoussis  on  24  January  2003  includes  a  number  of 
commitments  by  Côte  d’Ivoire  with  a  view  to  restoring  peace  and  stability  and  paving  the 
way for credible, open and transparent elections in late 2005. These commitments concern a 
number  of  issues  relating  to  the  essential  elements  referred  to  in  Articles  9  and  96  of  the 
Cotonou Agreement: human rights, democratic principles and the rule of law. 

At the Paris Summit of 26 January 2003, where the international community gave its backing 
to  the  Marcoussis  Agreement,  which  the  UN  Security  Council  then  formally  endorsed  by 
Resolution  No 1464  of  4 February 2003,  Mr  Prodi  said  that  the  European  Commission  was 
willing  to  mobilise  the  resources  necessary  for  Côte  d'Ivoire  to  return  to  stability  and 
economic  development,  provided  the  commitments  given  at  Marcoussis  and  solemnly 
reiterated  at  the  Paris  Summit  were  effectively  honoured  and  peace,  stability  and  security 
lastingly  restored  with  full  regard  for  human  rights.  In  his  speech,  the  President  of  the 
European Union made similar remarks on the need for the Ivorian parties present to honour 
the commitments made at Marcoussis. 

2. In the matter of human rights, the EU has, from the very outset of the serious political and 
military  crisis  that  has  beset  the  country  since  19  September  2002,  repeatedly  expressed 
concern at violations committed by both sides, chiefly prior to the signing of the Marcoussis 
agreement on 24 January 2003. 

In a number of statements published since the conflict began the EU has expressed concern at 
the human rights situation in Côte d’Ivoire. In a statement of 21 October 2002 the EU, though 
welcoming  the  ceasefire,  expressed  concern  about  human  rights.  In  a  statement  of 
15 November 2002 calling for the signing of a peace agreement, the EU also condemned the 
human  rights  violations  observed,  as  exemplified  by  the  murder  of  Dr Benoît  Dacoury-
Tabley.  Following  the  discovery  of  mass  graves,  the  EU,  on  17 December 2002,  again 
condemned human rights violations in the country. 

The  situation  later  improved  until  the  murder  of  the  journalist  Jean  Hélène,  which  the  EU 
condemned in a statement of 27 October 2003 calling on the authorities to rein in the security 
forces.  After  a  few  months  of  calm  the  EU,  in  a  statement  of  25 March 2004,  deplored  the 
resurgence of violence in Côte d’Ivoire and, in a further statement on 8 April 2004, deplored 
the events of 25 March and expressed concern about other serious violations of human rights 
in the days that followed and about the safety of Ivorian and foreign nationals.  

The conclusions of the report of the UN commission of inquiry on the events connected with 
the march planned for 25 March 2004 in Abidjan make interesting reading: “What happened 
on 25 and 26 March was the indiscriminate killing of innocent civilians and the committing of 
massive  human  rights  violations.  The  march  became  a  pretext  for  what  turned  out  to  be  a 
carefully  planned  and  executed  operation  by  the  security  forces,  i.e.  the  police,  the 
gendarmerie, the army, as well as special units and the so-called parallel forces, under the 
direction and responsibility of the highest authorities of the State.” According to the report, 
“at least 120 people were killed, 274 wounded and 20 disappeared.”  

There have since been other grounds for concern about human rights. The disappearance of 
French-Canadian journalist Guy-André Kieffer on 16 April 2004 was followed, on 7 June, by 
a  witch-hunt  in  which  “young  patriot”  extremists  assaulted  dozens  of  Westerners  on  the 
streets  of  Abidjan.  On  25 June 2004  a  French  soldier  taking  part  in  Operation  Unicorn  was 
murdered by a rogue element of the Ivorian army. And, on 28 June 2004, the body of Habib 
Dodo,  a  law  student  and  leader  of  the  youth  movement  of  Côte  d’Ivoire’s  Revolutionary 

EN 

2 

   EN 

 
Communist  Party  (PCRCI),  who  had  been  abducted  on  23 June  by  extremist  students 
claiming to belong to the student federation, the FESCI, was found with a rope round his neck 
in a sack by the side of a road in Abidjan. 

Last  but  not  least,  the  act  setting  up  the  National  Commission  on  Human  Rights  adopted 
during the extraordinary session of parliament of April 2004 does not reflect what was agreed 
at Marcoussis. The composition of the Commission does not include the three parties of the 
Forces Nouvelles which signed the Marcoussis Agreement, Annex VI, paragraph 1, of which 
specified that the Commission would be made up of delegates of all parties. 

3.  In  the  matter  of  democratic  principles,  another  essential  element  of  the  Cotonou 
Agreement,  there  can  be  no  denying  the  serious  delays  and  shortcomings  in  honouring  the 
commitments given at Marcoussis.  

In  particular,  there  are  serious  grounds  for  doubting  whether  the  2005  elections  can  be 
organised  in  satisfactory  conditions.  Owing  to  the  delay  in  applying  the  Marcoussis 
Agreement,  it  will  no  longer  be  possible  to  apply  the  provisions  of  Annexes  I  and  II  to  the 
Agreement  concerning  the  identification  of  voters  and  electoral  rolls.  The  resolution  of  the 
thorny issue of eligibility for the presidency referred to in Annex III to the Agreement is also 
way behind schedule.  

On the first score – the identification of voters – the operation by the contractor, SITEL, has 
been  seriously  delayed:  it  did  not  restart  until  June 2004,  and  then  only  in  areas  under 
government  control.  As  for  the  National  Identification  Supervisory  Commission  (CNSI), 
which was set up under the Marcoussis Agreement in January 2004 to supervise the National 
Identification  Office,  itself  set  up  in  2001  as  the  only  body  empowered  to  issue  identity 
papers,  it  has  yet  to  receive  any  funding  whatsoever.  It  was  not  until  early  July 2004  that  a 
decision  was  taken  to  allocate  funds  to  the  CNSI.  Since  it  is  now  technically  impossible  to 
base the new electoral rolls on the identification exercise, the two exercises will now have to 
be conducted separately. It is, however, difficult to see, at this stage, how the electoral rolls 
can  be  drawn  up  –  an  activity  scheduled  by  the  Electoral  Commission  for  the  two  months 
from mid-January to mid-March 2005 - without a successful identification exercise.  

What is more, the bill amending the Nationality Act has yet to be adopted: it was only tabled 
in the National Assembly in June 2004.  

Lastly, the Identification Act of 3 May 2004, adopted during April’s extraordinary session of 
the National Assembly, poses a serious problem in that Article 3(5) stipulates that the national 
identity  card  is  to  specify  whether  nationality  was  acquired  by  birth  or  naturalisation.  Of 
questionable  utility,  this  reference  offers  scope  for  considerable  abuse  or  harassment  during 
checks.  The  potential  danger  is  enormous,  as  attested  by  recent  tragic  events  in  other 
countries. 

On the second score, the amendment of the electoral system is also far behind schedule. The 
bill altering the composition of the Independent Electoral Commission (CEI), which was set 
up  in  2001  and  performs  a  crucial  role,  since  it  is  responsible  for  organising  elections  and 
referendums, was first tabled in the National Assembly at the extraordinary session opened in 
28 April 2004. During the debates, the anti-Marcoussis deputies contested the composition of 
the  CEI  despite  the  fact  that  the  government  had,  in  line  with  the  Marcoussis  Agreement, 
drafted  the  bill  to  reflect  the  full  spectrum  of  Ivorian  political  opinion.  On  24 June  the 
minister  for  local  government  chose  to  withdraw  his  text  rather  than  see  it  adopted  in  a 

EN 

3 

   EN 

 
bastardised  form,  as  had  happened  when  the  act  setting  up  the  National  Human  Rights 
Commission was adopted in April. The FPI attempted to attach strings to the admission of the 
Forces Nouvelles to the CEI after disarmament and wanted that membership to be of limited 
duration. 

The  composition  of  the  Constitutional  Council,  which  has  a  major  role  to  play  in  electoral 
matters, since it rules in electoral disputes and announces the results of elections, could also 
pose  problems.  The  Office  of  the  UN  Secretary-General,  in  its  report  of  6 January  to  the 
Security  Council,  itself  raised  the  issue  of  the  appointment  of  the  Council’s  members  in 
August  2003.  The  Council  has  eight  members:  the  former  president  of  the  republic,  three 
members appointed by the president of the National Assembly and three members appointed 
by the president of the republic, who also appoints the Council’s president. The August 2003 
appointments  were  made  without  consultation  with  the  parties,  contrary  to  the  spirit  of  the 
Marcoussis Agreements, which, admittedly, do not  mention  the  Constitutional  Council.  The 
circumstances surrounding these appointments give cause to fear that the Council’s decisions 
might  be  biased,  like  those  taken  in  2000  by  the  Supreme  Court,  which  has  since  been 
replaced by a number of institutions, the Constitutional Council being one of them. 

Similarly, there has yet to be a detailed assessment of the electoral budget by the UN, which 
has  still  to  carry  out  the  planned  mission  owing  to  ongoing  political  resistance  and  security 
problems.  

As for the third issue – the extremely sensitive matter of eligibility for the presidency – it is 
far from certain that the commitments made at Marcoussis will be honoured. Regrettably, the 
bill amending Article 35 of the Constitution, which, under Article 126 of the Constitution, has 
to  be  approved  by  a  referendum,  has  yet  to  be  submitted  to  the  National  Assembly,  which, 
under Article 125 of the Constitution, has to approve it by a two-thirds majority before it can 
go to a referendum.  

4. As for the rule of law, another of the Cotonou Agreement’s essential elements, the Ivorian 
government  appears  to  lack  the  legal  remedies  necessary  to  overcome  the  difficulties 
besetting  the  cocoa  sector  audit  which  the  government  of  national  unity  asked  the  EU  to 
finance in 2003. 

The first stage of the audit was completed last autumn and a provisional report published on 
9 October 2003.  This  report  did  not  cover  all  the  issues  specified  in  the  terms  of  reference 
because the information gathered was incomplete owing to a lack of cooperation on the part 
of certain structures and their refusal to comply with the requirements of the audit: the report 
underlines  that  the  two  most  important  institutions  from  the  revenue-collection  standpoint 
refused to cooperate in the audit. 

The provisional report highlighted a number of problems, including: 

–  the  institutional  confusion  caused  by  the  disparate  legal  forms  of  the  four  structures  that 
replaced  the  CAISTAB  in  1999.  Four  bodies,  the  Coffee  and  Cocoa  Regulatory  Agency 
(ARCC),  the  Coffee  and  Cocoa  Exchange  (BCC),  the  Fund  for  the  Development  and 
Promotion  of  Coffee  and  Cocoa  Cooperatives  (FDPCC)  and  the  Cocoa  Regulatory  Fund 
(FRC), along with several ministries and an interministry committee, are now involved in 
administering or regulating the sector; 

–  the inability to gain an overview of financial flows owing to the shortage and/or complete 
lack  of  data  on  the  royalties  collected  by  the  FDPCC  and  on  behalf  of  the  Prudential 

EN 

4 

   EN 

 
Reserve (which, according to the provisional report, ought to have a balance of more than 
CFAF 100 billion, though the use made of these funds has yet to be determined); 

–  the  relationship  between  the  resources  collected  and  their  use:  the  difficulty  of  obtaining 

information left the auditors unable to answer this crucial question; 

–  the high level of taxation of the sector: during discussions with the donors in 2001, and in 
particular  with  the  World  Bank  and  the  International  Monetary  Fund,  it  had  been  agreed 
that the total tax burden should not exceed 30%, 20% of it in taxes and 10% in royalties. 
The provisional report found the overall level of taxation to be about 37%. 

In the wake of the provisional report, the donors sent the prime minister an aide-mémoire in 
November 2003; in January 2004 they met him to reiterate the need to carry out the second 
stage of the audit and take the interim measures advocated by the provisional report. 

The government argued that the “private” nature of these four bodies prevented the state from 
obliging  them  to  audit  their  financial  flows.  In  their  aide-mémoire,  the  donors  pointed  out 
that: 

- the levies had all been imposed by ministerial decree and were not a voluntary contribution 
on the part of farmers; 
- every executive or supervisory board included a government commissioner responsible for 
monitoring compliance with the law, advising the parties and mediating in disputes.  

Though  Commission  officials  at  both  the  Delegation  in  Abidjan  and  Headquarters  have 
repeatedly stressed to the Ivorian authorities the need to complete the audit, the second stage 
has yet  to get under way  owing  to the  dogged refusal of those bodies still to  be audited. In 
Brussels, the Commission has raised this matter at a high level on a number of occasions and 
in  particular  at  meetings  with  the  minister  of  agriculture  on  13 February 2004,  the  prime 
minister on 25 February 2004 and the minister for national reconciliation on 29 June 2004. 

There  seems  to  be  no  legal  remedy  against  the  repeated  refusal  by  those  bodies  still  to  be 
audited. The lack of an effective legal remedy constitutes a breach of the rule of law. 

5. In view of the above, the Commission believes that consultations should be initiated with 
Côte d’Ivoire under Articles 9 and 96 of the Cotonou Agreement. 

The purpose of such consultations is: 

–  to  reiterate  the  EU’s  concern  about  human  rights  violations  and  to  find  out  how  Côte 
d’Ivoire plans to end the climate of lawlessness that breeds such violations and lay long-
term legislative, regulatory and judicial foundations for improvements in this area; 

–  to underscore the great importance attached by the EU to the organisation of elections in 
2005 in satisfactory conditions, avoiding a recurrence of the problems which occurred in 
2000 and gave rise to the previous Article 96 consultations in February 2001, and find out 
how Côte d’Ivoire plans to achieve this on time; 

–  to reiterate the need, which the EU and other international donors consider overriding, for 
the  Ivorian  government  to  take  the  requisite  steps  to  assert  its  authority  and  permit  the 
smooth  execution  of  the  second  stage  of  the  cocoa  sector  audit  initiated  at  its  request  in 
2003; 

EN 

5 

   EN 

 
–  to determine whether there is a need for appropriate steps under Article 96 of the Cotonou 

Agreement. 

6. The Commission therefore proposes that the Council invite Côte d’Ivoire to consultations 
pursuant to Articles 9 and 96 of the Cotonou Agreement, in accordance with the attached draft 
letter. 

EN 

6 

   EN 

 
ANNEX 

DRAFT 

Brussels,  

HE Mr Laurent Gbagbo 
President of the Republic of Côte d’Ivoire 
Présidence 
Abidjan 
Côte d’Ivoire 

Your Excellency, 

The  European  Union  has  repeatedly  expressed  its  concern  at  the  situation  in  Côte  d’Ivoire, 
notably  through  statements  by  the  Presidency  and  whenever  there  have  been  high-level 
meetings with your country’s authorities in the course of the standing political dialogue. 

The  main  issues  of  concern  to  the  EU  have  been  the  human  rights  situation,  the  impact  of 
delays  in  applying  the  Marcoussis  Agreement  on  the  organisation  of  credible,  open  and 
transparent elections in 2005 in satisfactory conditions, and the complete lack of headway in 
the past six months towards completing the EU-financed audit of the coffee and cocoa sector, 
which was begun in 2003 at the request of the Ivorian government of national unity.  

Pursuant  to  Article 96  of  the  Cotonou  Agreement,  we  have  the  honour,  on  behalf  of  the 
Community  and  the  Member  States  of  the  European  Union,  to  invite  your  country  to 
consultations,  as  provided  for  in  the  Agreement,  with  a  view  to  examining  the  situation  in 
depth and, if necessary, remedying it. 

We  suggest  that  these  consultations  take  place  soon,  on  a  date  to  be  settled  by  mutual 
agreement, at the premises of the Council of the European Union. 

We have the honour to be, Sir, yours faithfully, 

For the Council 

For the Commission 

Copies:  Chairman of the ACP Committee of Ambassadors 

Secretary-General of the ACP Group 

EN 

7 

   EN