Communication from the Commission to the Council on the opening of consultations with Niger under Article 96 of the Cotonou Agreement
Date: 2009-10-07
Institutions: European Commission
Subjects: EU policy, Nigeria, constitutional revision, consultation procedure, control of constitutionality, cooperation policy, legality, parliamentary election, political situation

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 7.10.2009 
COM(2009) 529 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 

on the opening of consultations with Niger under Article 96 of the Cotonou Agreement 

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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 

on the opening of consultations with Niger under Article 96 of the Cotonou Agreement 

Since the turmoil of the 1990s, Niger has experienced a period of relative stability over the 
last ten years, crucial for a country that remains one of the poorest in the world. During the 
last  decade,  which  has  coincided  with  President  Tandja's  two  terms  in  office,  development 
efforts  have  helped  to  keep  the  country's  economic  situation  stable  despite  rapid  population 
growth and major climate constraints.  

In the run-up to the forthcoming elections in November and December, a period of political 
instability has been triggered by the actions of President Tandja, who is attempting to remain 
head of state beyond the end of his second term ending on 22 December, contrary to the terms 
of the 1999 Constitution. 

In his message to the nation on 29 May, President Tandja confirmed his intention of holding a 
referendum on a new Constitution that would allow him to remain in office following the end 
of his second five-year term. The Constitutional Court had earlier delivered an opinion, at the 
National Assembly's request, ruling against the possibility of re-election  or the extension of 
President Tandja's mandate and opposing the amendment of the Constitution by referendum. 
In  the  light  of  this  ruling,  which  he  considered  non-binding,  the  President  had  used  his 
presidential  prerogatives  to  sign  a  decree  on  26 May,  dissolving  the  National  Assembly 
(parliamentary elections were scheduled for November/December). 

Citing national stability and the need to finish off the development work he had started and to 
respect the sovereign will of the people, on 9 June President Tandja announced the date of a 
referendum (4 August) to be held on a new Constitution that would provide for: a move to a 
presidential system that involved the abolition of the current limit on the number of terms a 
president  can  serve  (two);  the  creation  of  a  Senate;  changes  to  the  Constitutional  Court  to 
increase  its  membership  to  nine;  confirmation  of  the  principle  of  amnesty.  In  addition,  a 
transitional period of three years would be introduced to allow the head of state to remain in 
power beyond 22 December without going to the polls. 

Having once again been approached by a group of opposition parties and thus intervening for 
the  second  time  against  President  Tandja's  plans,  on  12 June  the  Constitutional  Court 
published an order annulling the decree on the referendum ruling that it had been "adopted in 
violation of Articles 49 and 135 of the Constitution". Meanwhile the Council of the Republic, 
urgently  convened  by  the  President  for  the  first  time  since  it  was  established  under  the 
Constitution  of  1999,  declared  that  it  was  unable  to  rule  in  the  absence  of  the  National 
Assembly. On the day after the Court's ruling, the National Independent Election Commission 
called for parliamentary elections on 20 August and opposed the holding of a referendum. 

On 29 June the President responded to the stance taken by the Court by suspending it three 
days  after  granting  himself  extraordinary  powers  under  Article 53  of  the  Constitution.  The 
Court  was  later  dissolved  and  a  new  Court  appointed  that  did  not  include  any  members 
appointed by the National Assembly. 

On 8 July the President amended Act 2006-24 on the organisation, powers and function of the 
High  Council  for  Communication  (CSC).  The  amendment  gave  the  CSC  President  similar 

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special powers to those the President had given himself and authorised him to take action, at 
his  discretion,  against  any  media  body  that  broadcast  or  published  information  that  might 
endanger state security or public order. 

In  a  message  to  the  nation  on  12 July,  the  President  launched  the  referendum  campaign, 
calling for a massive "Yes" vote. 

The  referendum  took  place  on  4 August  without  major  incident,  although  a  number  of 
irregularities in the voting procedures were reported. With no independent election observers 
present, the level of the turnout is disputed: according to the international media, diplomatic 
missions in the country and the opposition, voter turnout was low; according to an Electoral 
Commission  statement  on  7 August,  the  turnout  was  68.3%  with  92.5%  of  voters  saying 
"Yes" to the changes to the Constitution that the President wanted. The opposition had called 
for a boycott of the referendum. 

On  2 July  the  Presidency  of  the  European  Union  published  a  statement  expressing  the  EU's 
grave concern at political developments in Niger, in particular the decision taken by President 
Tandja to invoke Article 53 of the Constitution so as to grant himself special powers which 
were then used to dissolve the Constitutional Court and call a referendum that was explicitly 
forbidden by the Constitution. 

On 9 July the Commission wrote to President Tandja reiterating these concerns and calling for 
compliance with the decisions of the Constitutional Court. The Commissioner indicated that 
the compatibility of the measures taken by President Tandja with the essential elements of the 
Cotonou  Agreement  would  have  to  be  examined  and  that  an  enhanced  political  dialogue 
should  begin  immediately  with  Niger's  Government,  adding  that  if  this  dialogue  failed  to 
reach  an  acceptable  compromise,  the  Commission  would  be  obliged  to  propose  the  formal 
opening of consultations under Article 96 of the Agreement. 

On 24 July, the EU's representatives in Niamey held talks with the Nigerien authorities as part 
of the enhanced political dialogue in accordance with Article 8 and Annex VII of the Cotonou 
Agreement. The dialogue failed to identify a willingness on the part of Niger's Government to 
return to the legitimate constitutional framework. 

A  joint  UN-AU-ECOWAS  mission  also  visited  Niamey  on  20  and  21 July  in  an  attempt  to 
defuse the crisis. President Tandja has nevertheless not moved from his position.  

In a further statement on 31 July the EU Council Presidency reiterated the Union's concerns at 
the  situation  in  Niger.  The  Presidency  said  that  the  referendum  of  4 August  violated  the 
Constitution  and  flouted  the  ruling  of  the  Constitutional  Court.  The  dissolution  of  the 
Constitutional  Court  and  the  exercise  of  government  powers  without  parliamentary  control 
were considered grave violations of core democratic values and the principles of the rule of 
law.  The  European  Union  regretted  that  the  dialogue  with  the  Government  of  Niger  had 
revealed no inclination on its part to return to democratic and constitutional proceedings. The 
statement  underlined  the  possible  consequences  of  the  violation  of  the  Cotonou  Agreement 
for cooperation between the EU and Niger and called on the country's authorities to return to 
democratic and constitutional rule without further delay. 

Article 9(2) of the ACP-EC Partnership Agreement signed in Cotonou on 23 June 2000 and 
revised  in  Luxembourg  on  25 June 2005  lays  down  the  essential  elements  on  which  the 
partnership is based. It states that respect for democratic principles and the rule of law, which 

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underpin the ACP-EU  Partnership, must  underpin the domestic and international policies of 
the Parties and constitute the essential elements of the Agreement.  

In the light of the Agreement and the political situation in Niger, the Commission feels that, 
without prejudice to the remainder of President Tandja's term until 22 December, a violation 
of  these  essential  elements  has  taken  place  and  considers  it  necessary  to  open  consultations 
with  the  authorities  in  power  in  Niger  in  order  to  examine  possible  solutions  to  the  crisis 
which  would  re-establish  constitutional  order.  These  consultations  should  encourage  a  swift 
return  to  a  consensual  and  inclusive  political  dialogue  that  would  establish  a  constitutional 
framework  embracing  the  political  forces  of  the  country.  These  consultations  will  be 
conducted in accordance with Articles 9 and 96 of the revised Cotonou Agreement and will 
take account of the results of mediation  and consultation conducted by the European Union 
and other international institutions. 

Such dialogue will give the Nigerien Government, the other political forces and civil society 
representatives an opportunity to state their intentions and their proposals for ending the crisis 
and allow the  EU  to judge whether and how it could,  on the basis  of  this dialogue,  support 
initiatives  directed  at  compliance  with  the  principles  set  out  in  Article  9(2)  of  the  revised 
Cotonou Agreement.  

The  Commission  therefore  proposes  that  the  Council  invite  the  Republic  of  Niger  for 
consultations under Articles 9 and 96 of the Cotonou Agreement, in accordance with the draft 
letter attached. 

The Commission proposes that, during the consultation period, ongoing cooperation activities 
and  those  planned  under  the  recently  signed  10th  EDF  national  indicative  programme  be 
confined to payments relating to contracts already being implemented, humanitarian measures 
or those that directly benefit the population and preparatory measures for the implementation 
of future projects. It further proposes that the other elements of the development cooperation 
framework with Niger be suspended until an acceptable solution to the crisis is found. 

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ANNEX 

DRAFT 

Brussels, 

The President of the Republic of Niger, 

Sir, 

In a letter of the Commission dated 9 July and in its statements made on 2 and 31 July, the 
Presidency of the European Union reiterated its deep concern at the political situation in Niger 
and called for a swift return to constitutional order. The European Union considered that the 
referendum  of  4 August  and  the  process  that  led  to  it  were  violations  of  the  Constitution. 
These concerns were confirmed in the Commission's statement of 10 August. This situation is 
a serious violation of the essential elements set out in Article 9(2) of the ACP-EC Partnership 
Agreement signed in Cotonou on 23 June 2000 and revised in Luxembourg on 25 June 2005, 
to which Niger is a party.  

The European Union has expressed its regret that the dialogue with the Government of Niger 
has revealed no inclination to return to constitutional proceedings. It has also underlined the 
possible consequences of the violation of the Cotonou Agreement for cooperation between the 
EU and Niger and called on the Nigerien authorities to take the necessary steps without delay 
to  return  to  constitutional  legality  by  seeking  consensus  and  inclusive  dialogue  between 
political parties and the other elements of civil society in Niger. 

In  the  light  of  these  circumstances,  the  parliamentary  elections  scheduled  for  20 October 
could be crucial to establishing the climate of confidence and participation that is required to 
bring  an  end  to  the  crisis.  The  European  Union  urges  the  authorities  of  Niger  to  do  their 
utmost to ensure that the election proceeds under fair, open, peaceful and inclusive conditions.  

In application of Article 96 of the Cotonou Agreement and in view of the essential elements 
referred  to  in  Article  9(2)  of  the  Agreement,  we  have  the  honour  to  invite  your  country  for 
consultations in order, as provided for in the Agreement, to study the situation in depth and, 
where appropriate, take steps to remedy it. 

We propose that these consultations take place in Brussels in the near future, at a date to be 
agreed jointly. 

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

For the Council 

For the Commission 

Cc: 

President of the ACP-EU Council of Ministers 
Chairman of the ACP Committee of Ambassadors  
General Secretariat of the ACP Group 

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