Proposal for a Council Decision amending Decision 2004/793/EC concluding the consultation procedure with the Togolese Republic under Article 96 of the Cotonou Agreement
Date: 2006-10-06
Institutions: European Commission
Subjects: Cotonou Agreement, EU relations, Togo, human rights, rule of law

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 6.10.2006 
COM(2006) 577 final 

Proposal for a 

COUNCIL DECISION 

amending Decision 2004/793/EC concluding the consultation procedure with the 
Togolese Republic under Article 96 of the Cotonou Agreement 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

Given  the  recurrent  failure  to  respect  democratic  principles  and  human  rights  in  Togo,  the 
European Union concluded in 2004 that the political situation was a violation of Article 9 of 
the revised Cotonou Agreement1 and opened consultations with Togo under Article 96 of the 
Agreement.  

During  these  consultations  the  Togolese  government  gave  22  undertakings  relating  to  the 
restoration of democracy and the reinforcement of respect for human rights and fundamental 
freedoms, including: 

•  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  would  be  organised  within  this  new  framework.  Democratisation  would  be 
underpinned by a process of decentralisation; 

•  strengthening  of  human  rights  and  fundamental  freedoms.  The  government would 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. There were 
also  plans  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  free  political  prisoners  and  to  speed  up  the  processing  of 
people remanded in custody; 

•  strengthening the rule of law, in particular the justice system.  

At the end of 2004 considerable efforts had been made and many undertakings had been or 
were being honoured.  

The  death  of  President  Eyadema  on  5 February 2005  triggered  a  new  political  crisis  in  the 
country, which saw backsliding on many undertakings and an unprecedented deterioration in 
the  human  rights  situation,  especially  at  the  time  of  the  “constitutional”  coup  of 
6 February 2005 and the disputed presidential elections of April 2005. There were, depending 
on  the  source,  150  to  500  deaths.  The  violence  in  the  country  led  40 000  Togolese  to  seek 
refuge  in  Benin  and  Ghana.  This  situation  was  confirmed  by  the  first  monitoring  mission 
under the Council Decision, which took place in July 2005.  

A United Nations fact-finding mission was carried out in June 2005, and the resulting report 
on  human  rights  violations  in  Togo  before,  during  and  after  the  April  presidential  elections 
was  published  in  September 2005.  This  report  particularly  criticises  the  immunity  from 
prosecution  enjoyed  by  the  perpetrators  of  the  violence  and  one  party’s  use  of  the  army  to 
hold on to power.  

The  opposition  contested  the  legitimacy  of  the  new  president-elect,  Faure  Gnassingbe.  On 
12 May 2005 the European Parliament adopted a resolution along the same lines. 

Under pressure from the international community, the new president embarked on a policy of 
openness. A prime minister from the moderate opposition was appointed on 8 June 2005, and 

1 

OJ L 287, 28.10.2005, p. 4. 

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a government including a number of ministers from the moderate opposition was formed on 
20 June. In particular, the justice portfolio was given to a member of the opposition. President 
Gnassingbe  and  the  government  made  fulfilling  the  22  undertakings  given  to  the  European 
Union central to their political project. 

Regular  and  significant  progress  has  since  been  made  towards  honouring  the  undertakings 
given, without overlooking the two new issues raised by the events of 2005, namely refugees 
and  the  role  of  the  army.  These  measures  have  been  carried  out  in  a  difficult  situation 
attributable to a conservative faction in the government and armed forces. 

The  main  steps  taken,  as  recorded  by  the  second  follow-up  mission  in  March 2006  and  the 
latest political developments to August 2006, can be summarised as follows: 

•  In the media field, the new press code of August 2004, which is considered one of the most 
liberal in the subregion, is being applied, the situation in the official media has improved, 
with  the  abolition  of  the  personality  cult  and  the  provision  of  greater  access  to  political 
parties,  and  the  High  Authority  for  Audiovisual  and  Communications  (HAAC)  has  been 
reconstituted. 

•  In the field of justice, President Gnassingbe denounced a slow, corrupt judicial system in a 
hard-hitting  speech  in  August 2005.  The  political  prisoners  arrested  during  the  events  of 
2005,  prisoners  held  on  remand  for  excessively  long  periods  and  11 soldiers  held 
incommunicado since 2001 have all been released. Prison conditions have improved, and a 
programme  of  judicial  reform  has  been  finalised  with  the  UNDP  and  is  beginning  to  be 
implemented. 

•  August 2006  saw  genuine  political  dialogue  with  the  country’s  historic  opposition,  as 
identified in the Lomé framework agreement. At the opposition’s request, the open agenda 
encompassed  not  only  electoral  arrangements  but  institutional  issues,  the  reform  of  the 
armed forces, refugees and the dispute arising from the recent presidential elections. The 
dialogue  produced  a  comprehensive  political  agreement  covering  all  the  issues  on  the 
agenda; it was signed by all parties on 20 August. 

•  The Togolese authorities have embarked on a number of measures to reform the country’s 
armed forces by separating the functions of national defence and internal security and by 
limiting  the  army’s  role  in  civilian  life.  A  new  armed  forces  act  is  being  drawn  up.  In 
May 2006 civilians replaced soldiers at the head of the country’s revenue agencies, and in 
particular  the  customs  and  tax  department.  Though  the  first  steps  towards  increasing  the 
staffing  of  the  police  and  gendarmerie  were  not  as  transparent  as  they  might  have  been, 
matters are expected to improve. 

•  For refugees, the main problem is to restore a climate of confidence so that they can return 
to their homes; the government has adopted a plan to bring refugees home and decided to 
suspend  proceedings  against  those  who  may  have  committed  offences.  In  July  and 
August 2006 the decline in political tension saw large numbers of refugees return home. 

The  question  of  undertaking  2.6,  which  concerns  tackling  impunity,  remains  unresolved. 
There has been no sign of any sanctions against the perpetrators of violence. The opening of 
an  office  of  the  UN  High  Commissioner  for  Human  Rights  is  nevertheless  a  crucial  and 
encouraging step in the right direction. 

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As regards the restoration of democracy, the inter-Togolese dialogue has produced a political 
consensus.  The  agreement  signed  focuses  on  the  drafting  of  the  electoral  arrangements 
necessary for parliamentary elections to go ahead. It goes beyond the undertakings given to 
the  European  Union  by  addressing  other  substantive  issues  fundamental  to  lasting  national 
reconciliation, including constitutional and armed-forces reforms. 

With  regard  to  the  parliamentary  elections,  which  are  the  crux  of  the  process  of  resuming 
cooperation  with  Togo,  most  of  those  consulted  by  the  two  monitoring  missions  stated  that 
time should be taken to organise them properly, and especially to establish a credible electoral 
register. The end of the present assembly’s term of office, in November 2007, is, however, a 
cut-off date. 

The Togolese authorities have taken resolute steps in the right direction. The political crisis of 
the  first  half  of  2005  caused  the  initial  timetable  laid  down  for  the  22  undertakings  to  be 
overrun, but the headway now being made suggests that the undertakings could be fulfilled in 
12 to 24 months. 

In view of the above, and in accordance with Articles 9 and 96 of the Cotonou Agreement, the 
Commission proposes that the Council extend for 24 months the period of application of the 
Council Decision of 15 November 2004, make minor adjustments to the appropriate measures 
concerning  unexpended  resources  from  earlier  EDFs  and,  therefore,  adopt  the  annexed 
Decision.  

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Proposal for a 

COUNCIL DECISION 

amending Decision 2004/793/EC concluding the consultation procedure with the 
Togolese Republic 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 Partnership Agreement between the members of the African, Caribbean 
and  Pacific  Group  of  States  of  the  one  part,  and  the  European  Community  and  its  Member 
States of the other part, signed in Cotonou on 23 June 20002, and revised in Luxembourg on 
25 June 20053, 

Having regard to the internal agreement between the representatives of the governments of the 
Member  States,  meeting  within  the  Council,  on  measures  to  be  taken  and  procedures  to  be 
followed  for  the  implementation  of  the  ACP-EC  Partnership  Agreement4,  and  in  particular, 
Article 3 thereof, 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

(2) 

(3) 

Council  Decision  2004/793/EC  of  15  November  2004  concluding  the  consultation 
procedure  with  the  Togolese  Republic  under  Article  96  of  the  Cotonou  Agreement 
lays  down  a  period  of  24  months  from  the  date  of  its  adoption  for  monitoring  the 
appropriate measures5. 

The  political  emergency  following  President  Eyadema’s  death  in  2005  was  an 
unforeseen event that set back the initial timetable for implementing the undertakings 
given  by  the  Togolese  government  and  prevented  the  objectives  from  being  attained 
by the initial deadline. 

At  the  end  of  the  monitoring  period  many  undertakings  have  been  fulfilled  and 
practical  steps  taken  towards  fulfilling  the  main  undertakings  still  outstanding. 
Nevertheless several important measures concerning essential elements of the Cotonou 
Agreement have yet to be implemented,  

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OJ L 317, 15.12.2000, p. 3. 
OJ L 287, 28.10.2005, p. 4. 
OJ L 317, 15.12.2000, p. 376. 
OJ L 349, 25.11.2004, p. 17. 

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HAS DECIDED AS FOLLOWS: 

Article 1 

The  validity  of  Decision  2004/793/EC  concluding  the  consultation  procedure  with  the 
Togolese Republic under Article 96 of the Cotonou Agreement is extended for 24 months, to 
15 November 2008. It will be reviewed every six months. 

Article 2 

The measures adopted in Decision 2004/793/EC as appropriate measures within the meaning 
of Article 96(2)(c) of the Cotonou Agreement remain unchanged, subject to the adjustments 
specified in the draft letter in the annex to this Decision. 

Article 3 

This decision shall enter into force on the day it is adopted. It shall be published in the Official 
Journal of the European Union. 

Done at Brussels,  

For the Council 
The President 

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For the attention of the Prime Minister, head of government of the Togolese Republic 

ANNEX  

Prime Minister, 

The European Union attaches great importance to 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. 

In  2004  the  European  Union  felt  that  the  political  situation  in  Togo  violated  these  essential 
elements  and,  in  April  2004,  opened  consultations  under  Article  96  of  the  Cotonou 
Agreement,  during  which  the  government  gave  22  undertakings.  The  conclusions  of  these 
consultations  were  communicated 
letter  dated 
15 November 2004. 

the  head  of  government 

in  a 

to 

The  appropriate  measures  provide  for  a  24-month  monitoring  period,  which  ends  on 
14 November 2006. This period has seen an enhanced political dialogue, illustrated inter alia 
by the joint monitoring missions conducted by the Council and the Commission in July 2005 
and March 2006. 

Monitoring of the undertakings shows that the situation had improved considerably by the end 
of  2004,  only  to  worsen  during  the  events  that  followed  the  death  of  President Eyadema  in 
2005.  Since  June 2005  a  policy  of  openness  has  been  pursued,  and  reports  show  a 
considerable  and  sustained  improvement  in  the  situation,  as  exemplified  by  the  recent 
comprehensive  political  agreement,  for  which  we  congratulate  the  authorities  and  all 
stakeholders in Togo. 

Among the main initiatives taken, we would highlight: 

•  the  formation  of  a  bridge-building  government  including  members  of  the 

opposition; 

•  the  implementation  of  the  new  press  code,  the  efforts  to  provide  more  balanced 
news coverage in the official media and the initial reshuffle in the High Authority 
for Audiovisual and Communications; 

•  the adoption of the programme of judicial reform, the release of political prisoners 

arrested during the events of 2005 and the improvement in prison conditions; 

•  the holding of a genuine political dialogue in Togo, which has enabled all parties 
to  address  all  unresolved  issues  on  the  basis  of  an  open  agenda.  This  dialogue 
resulted in the signing of a comprehensive political agreement by all participants 
on 20 August. The agreement signed is intended to lay the foundations for lasting 
national  reconciliation  and  goes  beyond  the  undertakings  given  to  the  European 
Union. In addition to issues relating to the electoral arrangements and impunity, it 
addresses the continuation of constitutional and armed-forces reforms; 

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•  the signing, on 10 July 2006, of a protocol with the UN High Commissioner for 
Human  Rights  concerning  the  opening  of  an  office  in  Lomé  to  help  the 
government and monitor human rights in Togo. 

We also take note of the fact that measures related to the 22 undertakings, though not strictly 
covered by them, have begun to be implemented. These measures are the reform of the army 
by separating national defence from internal security missions and the issue of refugees, for 
whom the first thing to be done is to restore confidence.  

There is no doubt that the measures taken will help restore democracy and respect for human 
rights and that they are steps towards fulfilling the undertakings given. 

In view of this, the European Union would like to state its expectations, namely: 

•  the  consolidation  of  the  progress  made,  which  must  be  confirmed  at  the  next 

elections; 

•  the  implementation  of the electoral arrangements  accepted  by all  the  parties  and 
laid down in the comprehensive political agreement, which pave the way for free 
and transparent parliamentary elections;  

•  the establishment of a legal framework for the financing of political parties; 

•  the continuation of the decentralisation process; 

•  the resolution of the issue of impunity, as stated in undertaking 2.6 annexed to our 
previous  letter  of  15 November 2004,  and  the  guarantees  for  the  observance  of 
human rights, as stated in undertaking 2.1; 

•  the  revision  of  the  articles  of  association  and  composition  of  the  National 

Commission for Human Rights. 

Aware of the headway being made in Togo and the ground still to be covered, the European 
Union has decided to extend the monitoring period for the Decision of 15 November 2004 to 
48 months to give the Togolese authorities time to fulfil all the undertakings given. 

The  appropriate  measures  communicated  to  you  in  our  letter  of  15 November 2004  remain 
applicable. 

The  unexpended  balances  of  the  6th  and  7th  EDFs  will  be  used  according  to  the  objectives 
laid  down  in  the  appropriate  measures  to  support  the  holding  of  parliamentary  elections,  to 
finance  a  technical  cooperation  facility  to  support,  inter  alia,  the  fulfilment  of  the 
22 undertakings, to support a programme to reform the justice system and raise awareness of 
human rights, and to finance a welfare programme of highly labour-intensive works.  

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

Done at Brussels, 

For the Commission 

For the Council 

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