Proposal for a Council Decision concluding consultations with Togo under Article 96 of the Cotonou Agreement
Date: 2004-08-31
Institutions: European Commission
Subjects: Togo, democratisation, fundamental rights, human rights, rule of law, the EU's international role

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 31.8.2004 
COM(2004) 576 final 

. 

Proposal for a 

COUNCIL DECISION 

concluding consultations with Togo under Article 96 of 
the Cotonou Agreement 

. 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

The  lack  of  progress  towards  democracy  in  Togo  in  recent  years,  as  confirmed  by  the  non-
democratic nature of the last parliamentary and presidential elections and the scant respect for 
human  rights  and  fundamental  freedoms,  led  the  European  Union  to  conclude  that  the 
political situation was still in violation of Article 9 of the Cotonou Agreement. That is why it 
opened consultations with Togo under Article 96 of the Cotonou Agreement on 14 April this 
year.  

The objective of these consultations was the full reinstatement of democracy and respect for 
human rights and fundamental freedoms, including freedom of the media and a strengthening 
of  the  rule  of  law.  The  consultations  were  also  an  opportunity  to  establish  a  new  political 
roadmap to guide Togo in this process. 

At  the  opening  meeting  of  the  consultations  the  European  Union  was  pleased  to  note  that 
Togo offered 22 undertakings: Briefly, these undertakings entailed: 

•  A  return  to  democracy  through  a  resumption  of  dialogue  with  the  traditional  opposition 
and  civil  society,  including  a  revision  of  the  electoral  arrangements.  Local  and 
parliamentary elections will be organised within this new framework. Democratisation will 
be underpinned by a process of decentralisation. 

•  Strengthening of human rights and fundamental freedoms. The government will ensure that 
there  is  no  torture  or  other  inhuman  or  degrading  treatment  and  uphold  freedom  of 
expression  and  information,  the  right  of  assembly,  and  freedom  of  movement.  It  is  also 
planned  to  revise  the  articles  of  association  and  terms  of  reference  of  the  National 
Commission  for  Human  Rights  (CNDH)  and  High  Authority  for  Audiovisual  and 
Communications (HAAC), to liberate political prisoners and to speed up the processing of 
people remanded in custody. 

•  Strengthening  the rule of law, in particular the  justice system; any revision  of legislation 

necessary as a result will be part of this exercise. 

The conclusions of these consultations also provide that the EU continue the dialogue with a 
view to ensuring that democracy and the rule of law in Togo are enhanced as fast as possible, 
this being a prerequisite for a complete normalisation of relations.  

The EU has closely monitored the situation on the basis of two reports on the performance of 
these  undertakings  that  Togo  promised  to  deliver  during  the  consultations.  It  has  checked 
whether the undertakings have been carried  out and measures adopted to ensure transparent 
and democratic elections as soon as possible. In so doing, the EU emphasised that the scale 
and substance of the Togolese authorities’ implementation of their undertakings would be the 
decisive factor in determining the nature and scope of any measures deemed appropriate at the 
conclusion of the three-month period of dialogue and on-the-spot consultations.  

The Togolese government presented two progress reports, one on 31 May and one on 1 July. 
After the first report and mid-way through the consultations a Commission follow-up mission 
went to Lomé and worked closely with representatives of the President’s office. An ongoing 
dialogue took place between the Togolese government and EU representatives on the spot. At 
the  end  of  the  consultations  the  EU  representatives  evaluated  implementation  of  the 
undertakings.  The  undertakings  were  also  communicated  to  various  representatives  of  the 

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world of politics and civil society, including political parties of all tendencies, representatives 
of the Catholic, Protestant and Muslim faiths, human rights NGOs, the CNDI and the HAAC. 

They reported that the Togolese authorities had showed great willingness both to continue and 
step up talks and to facilitate their mission as specified in Undertaking 4.2. 

According to this report, the Togolese authorities have taken encouraging measures in relation 
to  some  undertakings.  A  number  of  initiatives  have  been  taken  in  connection  with  human 
rights, fundamental freedoms and the rule of law. 

The authorities have organised information and awareness-raising meetings with prefects and 
police  concerning  various  aspects  of  human  rights  and  fundamental  freedoms.  They  have 
distributed  instructions  and  circulars  setting  out  the  existing  directives  and  rules.  This  has 
produced some positive results, confirmed by the opposition.  

•  The  authorities  have  instructed  the  courts  to  bring  to  trial  all  persons  in  remanded  in 
custody  in  cases  where  preliminary  investigations  have  been  completed.  This  call  for  a 
speeding-up of procedures has led to the setting of 214 trial dates, including the cases of a 
number of prisoners considered political. The government ensured that lawyers had access 
to their clients during the preliminary inquiries.  

•  Access to the media, hitherto a preserve of the government and the party in power outside 
election campaigns, has been extended in recent weeks to opposition parties, though access 
is not yet truly equal. 

•  The  government  has  embarked  on  reform  of  the  press  code  and  of  the  CNDH  and  the 

HAAC. 

•  A  diagnostic  study  of  the  justice  system  has  been  carried  out  with  the  aid  of  the  UN 

Development Programme (UNDP). 

•  The  government  is  continuing  efforts  towards  decentralisation  and  recently  adopted  a 

policy letter on the subject.  

Nevertheless,  serious  points  of  concern  remain  concerning  democratisation  and  the  rule  of 
law.  

•  Despite  the  preliminary  meetings  between  government  and  opposition,  an  organised  and 
transparent framework for national dialogue has not yet been established So the dialogue 
has not yet really started. 

•  This also means that the review of the electoral arrangements to ensure a transparent and 
democratic  process  has  not  yet  started.  This  could  make  it  difficult  to  fulfil  the 
undertakings concerning the holding of parliamentary and local elections, especially within 
the proposed deadlines. 

•  Outstanding  matters  include  establishment  of  a  legal  framework  for  the  financing  of 
political  parties,  clarification  of  the  situation  of  political  prisoners  and  their  possible 
liberation, revision of the articles of association and terms of reference of the CNDH and 
the HAAC, and revision of the press and communication code. 

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•  Reform  of  the  legal  and  justice  system  in  accordance  with  the  recommendations  of  the 

UNDP diagnostic study has still to be tackled. 

At the conclusion of the consultations, taking into account the undertakings given thus far and 
the important measures still to be put in hand, the Commission proposes to adopt appropriate 
measures  under  Article  96(2)(c)  of  the  Cotonou  Agreement  as  set  out  in  the  attached 
Decision.  The  measures  are  proposed  with  a  view  to  underpinning  a  process  which  is 
acknowledged to have delivered progress while motivating the government to consolidate this 
progress  and,  above  all,  to  speed  up  performance  of  the  undertakings  concerning 
democratisation. 

An  enhanced  political  dialogue  will  be  conducted  with  the  Togolese  government  over  a 
24-month  monitoring  period  in  order  to  ensure  that  it  continues  on  the  path  mapped  out 
towards democracy and the rule of law and pursues and consolidates its efforts in the field of 
human  rights  and  fundamental  freedoms.  There  will  be  six-monthly  evaluations  over  this 
period. 

If  implementation  of  the  Togolese  authorities’  undertakings  speeds  up,  or  on  the  contrary 
breaks down, the EU reserves the right to adjust the appropriate measures by means of a new 
Council Decision amending this proposal.  

In view of the above, and in accordance with Articles 9 and 96 of the Cotonou Agreement, the 
Commission  proposes  that  the  Council  conclude  the  consultations  with  Togo  and  adopt  the 
attached Decision. 

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Proposal for a 

COUNCIL DECISION 

concluding consultations with Togo under Article 96 of 
the Cotonou Agreement 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, 

Having  regard  to  the  ACP-EC  Partnership  Agreement  signed  in  Cotonou  on  23  June  2000 
(“Agreement of Cotonou”), and in particular, Article 96 thereof,1 

Having  regard  to  the  Internal  Agreement  on  measures  to  be  taken  and  procedures  to  be 
followed  for  the  implementation  of  the  ACP-EC  Partnership  Agreement,2  and  in  particular 
Article 3 thereof, 

Having regard to the proposal from the Commission,3 

Whereas: 

(1) 

(2) 

(3) 

Togo  has  violated  the  essential  elements  referred  to  in  Article  9  of  the  ACP-EC 
Partnership Agreement. 

On  14  April  2004,  pursuant  to  Article  96  of  the  Cotonou  Agreement,  consultations 
started with the ACP countries and Togo during which the Togolese authorities gave 
specific undertakings designed to remedy problems identified by the European Union 
and to implement them during a period of intensive dialogue lasting three months. 

At the conclusion of this period some substantive initiatives had been take in respect 
of  some  of  the  undertakings  referred  to  above;  nevertheless  the  most  important 
measures  concerning  essential  elements  of  the  Cotonou  Agreement  had  not  yet  been 
taken, 

HAS DECIDED AS FOLLOWS: 

Consultations  with  Togo  under  Article  96(2(a)  of  the  Cotonou  Agreement  are  hereby 
concluded. 

Article 1 

1 
2 
3 

OJ L 317, 15.12.2000, p. 3. 
OJ L 317, 15.12.2000, p. 376. 
OJ C […], […], p. […]. 

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The measures set out in the annexed draft letter are hereby adopted as appropriate measures 
within the meaning of Article 96(2)(c) of the Cotonou Agreement. 

Article 2 

The decision of 14 December 1998 addressing a letter of the Council and the Commission to 
the Togolese government is hereby repealed. 

Article 3 

Article 3 

This decision shall enter into force on the day it is adopted. 

It shall be valid for 24 months from the date of its adoption by Council. 

Done at Brussels,  

For the Council 
The President 

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ANNEX 

Draft letter 

Prime Minister, 

The European Union attaches great importance to the provisions of Article 9 of the Cotonou 
Agreement.  The  ACP-EU  partnership  is  founded  on  respect  for  human  rights,  democratic 
principles and the rule of law; these are essential elements of the Agreement and thus form the 
basis for relations between us. 

The  EU  believes  that  the  political  situation  in  Togo  is  deadlocked  and  that  the  democratic 
deficit  and  scant  consideration  for  human  rights  and  fundamental  freedoms  constitute  a 
violation of the essential elements set out in Article 9 of the Cotonou Agreement. 

In view of this article and the current political deadlock in Togo it decided on 30 March 2004 
to  open  consultations  under  Article  96  of  the  Agreement  in  order  to  thoroughly  review  the 
situation and find a remedy if possible. 

These consultations took place in Brussels on 14 April 2004. Several fundamental issues were 
addressed,  and  you  were  able  to  present  the  Togolese  authorities’  point  of  view  and  their 
analysis  of  the  situation.  The  European  Union  was  pleased  to  note  that  Togo  made  certain 
undertakings and proposed positive steps to improve the climate for democracy and the rule 
of law in the country. 

We note that the Togolese government made the following undertakings: 

Undertaking 1.1 

Ensure  that  democratic  principles  are  fully  upheld:  immediate  announcement  of  the 
resumption  of  an  open,  credible  national  dialogue  with  the  traditional  opposition  and  civil 
society in an organised and transparent framework. 

Undertaking 1.2 

Guarantee all  political  parties  freedom of action without  fear of  harassment, intimidation or 
censorship 

Undertaking 1.3 

Revise the electoral arrangements on the basis of the Lomé Framework Agreement so as to 
ensure  transparent  and  democratic  elections  that  are  acceptable  to  all  parties  within  six 
months. 

Undertaking 1.4 

Ensure that all political parties have equitable access to public media and set up a fair system 
for the public funding of political parties. 

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Undertaking 1.5 

Organise  fresh  parliamentary  elections  that  are  transparent,  with  international  observers 
present at all stages of the process, as soon as possible, in keeping with the implementation of 
Undertaking 1.3. 

Undertaking 1.6 

Organise  local  elections  that  are  transparent,  with  observers  present  at  all  stages  of  the 
process, within 12 months. 

Undertaking 1.7 

Create the conditions for necessary for democratically elected municipal assemblies to have a 
mandate  and  the  resources  needed  to  establish  effective  and  democratically  legitimate  local 
government within 12 months. 

Undertaking 2.1 

Ensure that there are no instances of extrajudicial killings, torture or other forms of inhuman 
or degrading treatment on Togolese soil; this includes the proper training of those managing 
the police and the justice system. 

Undertaking 2.2 

Free all political prisoners who are clearly held for their political opposition, criticism of the 
government or other reasons not justifying detention. The list of prisoners concerned by this 
measure  will  be  drawn  up  in  collaboration  with  one  or  more  recognised  NGOs  that  are 
experienced in this field and accepted by all parties. This undertaking must be implemented 
within not more than six weeks. 

Undertaking 2.3 

Transfer  all  files  on  persons  remanded  in  custody  or  released  on  bail  to  the  public 
prosecutor’s  office  within  three  months  so  that  their  cases  can  be  examined  in  accordance 
with the law. 

Undertaking 2.4 

Give lawyers and humanitarian/human rights organisations, accompanied by a doctor of their 
choice,  free  access  to  detainees  wherever  they  are  held  (prison,  gendarmerie,  police  station, 
etc.) so that the absence of torture or other inhuman treatment can be verified before the end 
of the consultations. 

Undertaking 2.5 

Revise  the  articles  of  association  and  terms  of  reference  of  the  National  Commission  for 
Human  Rights  (CNDH)  with  a  view  to  making  it  truly  independent  vis-à-vis  the 
administration within nine months. 

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Undertaking 2.6 

Take legal or disciplinary action against the known perpetrators of extrajudicial killings, acts 
of  torture  and  inhuman  and  degrading  treatment.  This  undertaking  also  includes  the 
amendment of relevant legislation and regulations where necessary. 

Undertaking 2.7 

Take  adequate  measures  (to  be  specified  later)  to  ensure  that  the  justice  system  works 
impartially and independently of the executive. A diagnostic study providing the basis for an 
action plan will be presented before the end of the consultations. 

Undertaking 3.1 

Revise the press and communication code so as to align it on international standards within 
six months. Above all, we expect the abolition of prison terms for the offences of “defamation 
and besmirching honour” currently provided for in the press code. 

Undertaking 3.2 

Immediately  ensure  that  the  media,  NGOs  and  civil  society  representatives  do  not  suffer 
harassment, censure or intimidation. 

Undertaking 3.3 

Immediately  ensure  that  all  political  and  civil  society  representatives  and  ordinary  citizens 
enjoy the right to freedom of expression and peaceful assembly in all public places throughout 
Togolese territory without fear of harassment, censure or intimidation. 

Undertaking 3.4 

Ensure  the  freedom  of  movement  of  all  political  and  civil  society  representatives,  both  as 
citizens and in the exercise of their political or representative functions. 

Undertaking 3.5 

Ensure, before the end of the consultations, that all citizens have free access to information 
through  the  media,  including  the  websites  of  opposition  parties,  non-governmental 
organisations and so on. 

Undertaking 3.6 

Revise  the  articles  of  association  and  terms  of  reference  of  the  High  Authority  for 
Audiovisual and Communications (HAAC) within six months with a view to making it truly 
independent vis-à-vis the administration. 

Undertaking 4.1 

Present  progress  reports  on  the  dialogue  and  performance  of  undertakings  to  the  EU 
authorities on 1 June and 1 July 2004. 

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Undertaking 4.2 

Willingness  of  the  Togolese  authorities  to  take  part  in  the  dialogue  on  the  ground  and 
facilitate any mission of officials from the Commission and the Presidency in the framework 
of this dialogue. 

It  was  also  agreed  that  an  intensive  dialogue  on  the  various  points  raised  would  be  held  in 
Togo over a period of three months, and that the situation would be assessed at the end of this 
period. 

This  ongoing  in-depth  dialogue  on  a  list  of  measures  to  be  taken  in  order  to  implement  the 
agreed undertakings has taken place. 

A number of significant measures have been taken by the Togolese authorities. In particular: 

•  The  authorities  have  organised  information  and  awareness-raising  meetings  with  prefects 
and  police  concerning  various  aspects  of  human  rights  and  fundamental  freedoms.  They 
have distributed instructions and circulars setting out the existing directives and rules. This 
has produced some positive results, confirmed by the opposition.  

•  The authorities have instructed the courts to bring to trial all persons remanded in custody 
in cases where preliminary investigations have been completed. This call for a speeding-up 
of procedures has led to the setting of 214 trial dates, including the cases of a number of 
prisoners  considered  political.  The  government  ensured  that  lawyers  had  access  to  their 
clients during the preliminary inquiries.  

•  Access to the media, hitherto a preserve of the government and the party in power outside 
election campaigns, has been extended in recent weeks to opposition parties, though access 
is not yet truly equal. 

•  The  government  has  embarked  on  reform  of  the  press  code  and  of  the  CNDH  and  the 

HAAC. 

•  An analysis of the justice system has been carried out with the aid of the UNDP. 

•  The  government  is  continuing  efforts  towards  decentralisation  and  recently  adopted  a 

policy letter on the subject.  

These  initiatives  have  undoubtedly  improved  respect  for  human  rights  and  fundamental 
freedoms  in  your  country.  Nevertheless,  a  number  of  points  continue  to  give  rise  to  serious 
concern, especially as regards the restoration of democracy:  

In this connection the EU is anxious for the following measures to be taken: 

•  The establishment of an organised and transparent framework for the start of a real national 

dialogue in accordance with Undertaking 1.1. 

•  In  the  context  of  this  dialogue,  a  revision  of  the  electoral  arrangements  with  a  view  to 
in  accordance  with 

transparent  and  democratic 

the  process 

is 

ensuring 
Undertaking 1.3. 

that 

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•  The establishment of a legal framework for the financing of political parties in accordance 

with Undertaking 1.4. 

•  The organisation of parliamentary and local elections in accordance with Undertakings 1.5 

and 1.6. 

•  Continuation of the process of decentralisation in accordance with Undertaking 1.7. 

•  A clarification of the situation of political prisoners followed by their possible liberation, 

as stipulated in Undertaking 2.2. 

•  Revision of the articles of association and terms of reference of the CNDH and the HAAC 

in accordance with Undertakings 2.5 and 3.6. 

•  Continued reform of the legal and justice system in accordance with the recommendations 

of the UNDP diagnostic study. 

•  Revision of the press and communication code in accordance with Undertaking 3.1. 

The EU also attaches great importance to the continuation and consolidation of the initiatives 
already  undertaken  in  the  context  of  Undertakings  1.2,  1.4,  2.1,  2.3,  2.4,  2.6,  3.2,  3.3,  3.4 
and 3.5. 

In  follow-up  to  the  consultations,  and  in  light  of  the  undertakings  given  thus  far  and  the 
important measures still to be put in hand, the Commission proposes to adopt the following 
appropriate measures under Article 96(2)(c) of the Cotonou Agreement. 

(1) 

(2) 

(3) 

(4) 

(5) 

Continued  implementation  of  projects  financed  with  the  unexpended  balances  of  the 
6th and 7th European Development Funds that will meet the needs of the population 
and  promote  compliance  with  the  essential  elements  of  the  Cotonou  Agreement, 
namely,  respect  for  human  rights,  democratic  principles  and  the  rule  of  law.  The 
national  programme  of  decentralised  environmental  management  projects  and  the 
1990-94 framework of mutual obligations will also be implemented. 

Institutional  aid  for  the  implementation  of  measures  to  carry  out  the  undertakings 
made during the consultations may be provided from 6th and 7th EDF funds. In this 
connection the Commission will adopt a financing decision on the programme to carry 
out a fourth general population and housing census. 

The 9th EDF allocation will be notified once electoral arrangements that will ensure 
transparent and democratic elections accepted by all parties are adopted and a date for 
the  holding  of  parliamentary  elections  is  set.  This  will  be  the  signal  for  the 
programming of resources.  

Once the 9th EDF allocation is notified, aid for preparing the elections may be given 
as long as the conditions stipulated in the electoral arrangements are adhered to. 

Togo’s  9th  EDF  strategy  paper  will  be  signed  and  implemented  once  free  and  fair 
parliamentary  elections  have  been  held.  The  currently  blocked  1996,  1998  and  1999 
Stabex funds will be transferred. 

(6) 

Contributions to regional projects will be considered on a case-by-case basis; 

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(7) 

Humanitarian  operations,  trade  cooperation  and  trade-linked  preferences  will  not  be 
affected. 

The  EU  Presidency  and  the  European  Commission  will  carry  out  regular  joint  reviews,  the 
first of which will be done within the next six months. 

The EU will continue monitoring the situation in Togo closely; an enhanced political dialogue 
will  be  conducted  with  your  government  over  a  24-month  monitoring  period  in  order  to 
ensure that it continues on the path mapped out towards democracy and the rule of law and 
pursues and consolidates its efforts in the field of human rights and fundamental freedoms.  

If  implementation  of  the  Togolese  authorities’  undertakings  speeds  up,  or  on  the  contrary 
breaks down, the EU reserves the right to adjust the appropriate measures.  

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

For the Commission  For the Council 

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