COTE D'IVOIRE -- OUTSIDE LEGAL EXPERTS REVIEW

C O N F I D E N T I A L ABIDJAN 000487

SIPDIS


AF/W FOR RKAMENSKI

E.O. 12958: DECL: 03/21/2015
TAGS: PGOV KPKO IV SA
SUBJECT: COTE D'IVOIRE -- OUTSIDE LEGAL EXPERTS REVIEW
REFORM LEGISLATION

Classified By: Andrea Lewis, Econ Chief, for reasons 1.4 b,d


1. (C) Summary. A panel of legal experts from Burundi and
Rwanda, led by the Advisor to South African President Thabo
Mbeki, has issued an analysis of the Linas-Marcoussis
legislation, and determined that many of the bills are not in
compliance with either the letter or spirit of the
Linas-Marcoussis Accords. The Panel approached the two most
sensitive issues -- eligibility to run for President
("Article 35") and the composition of the electoral
commission -- with reluctance, and indicated that these
issues require political solutions through continued
mediation by President Mbeki. On Article 35, the Panel
rejected the legal argument according to which a referendum
is not required, but it stopped short of saying that
therefore a referendum must be held. On the electoral
commission, the Panel rejected the opposition's assertion
that there must be equal representation of all parties, but
it criticized both the letter of the new law and the spirit
in which it is being implemented. End summary.

Article 35 Amendment


2. (C) The question of how to amend Article 35, whether by
referendum or decree, is one of the most crucial issues that
still divide Cote d,Ivoire, because it will determine who is
allowed to run in this fall's elections. The Panel was very
reluctant to enter into the debate on this matter, preferring
to defer to President Mbeki to craft a political solution to
this vexing problem. However, at the insistence of the
parties, particularly the New Forces, the Panel did review
the Article 35 conundrum.


3. (C) In its review, the Panel noted that the language of
the Article 35 amendment that was passed by the National
Assembly in December was taken verbatim from
Linas-Marcoussis. Thus, it is the method of putting this
constitutional amendment into effect that is controversial,
not the text itself.


4. (C) As the Panel frames it; the argument boils down to
whether there is a distinction between matters concerning the
election of the President, and matters concerning eligibility
to be the President. If there is, it could be argued that
the new Article 35 belongs in the latter category and a
referendum would not be required. However, the Panel found
that those two concepts are inseparable, and furthermore
noted that the signatories to the Linas-Marcoussis
acknowledged them to be inseparable.


5. (C) However, the Panel stopped short of explicitly stating
that therefore a referendum must be held. On the contrary,
in its introduction to the report the Panel noted with great
care that questions concerning eligibility to be President
were outside its mandate, and rather were the subject of
ongoing mediation efforts by President Mbeki, presumably
leaving open the door for a &political8 solution.

Independent Electoral Commission ) Election process


6. (C) The Panel also approached with great reluctance the
controversy over the composition of the Independent Electoral
Commission, again out of concern not to undercut President
Mbeki,s mediation efforts.


7. (C) In this case, as framed by the Panel, the argument
boils down to whether Linas-Marcoussis calls for equal
representation of all parties on the Electoral Commission, as
demanded by the opposition, or only "better" representation.
The Panel concluded that Linas-Marcoussis requires better,
not equal representation. However, the Panel expressed
concern that the current structure does not provide better
representation, because participation of the New Forces
members is predicated on disarmament. The Panel also noted
that the current legislation fails to guarantee better
representation on the Commission's Board of Directors.
(Note: The Panel did not address one of the opposition's main
concerns that some of its supposed representatives on the
Commission have been suborned to side with President Gbagbo
and do not actually represent the opposition parties.)


8. (C) The Panel also emphasized its concern that the
legislation on the financing of political campaigns only
provides financing to parties currently represented in
Parliament. If this bill becomes law, one of the main
opposition parties, RDR -) the party of prospective
presidential candidate Alassan Ouattara -- will receive no
governmental funding for the 2005 elections. The Panel also
raised concerns that the current funding mandate only covers
the Presidential election and makes no mention of the
legislative elections that are currently scheduled for


December 2005.

Panel,s views on the other legislation


9. (C) Items that still need work:

-- Nationality and Citizenship codes - The Panel stated
definitively that the changes made to these laws in December
are not in conformity with the Linas-Marcoussis Agreement.
These laws impose new, more burdensome requirements such as
&habitual residency8 and included additional expatriating
acts that were neither in the previous legislation nor
contemplated in Linas-Marcoussis. (Note: These requirements
were FPI add-ons to the legislation and were not contained in
the original text as presented by the Minister of Justice
(RDR) Henriette Diabate.)

-- Identity Cards, and the Status of Foreigners ) These laws
are also not in compliance. It was again the FPI add-ons to
the original legislation that the Panel found troubling. For
example, the identity cards are now required to show whether
the individual is a naturalized or native-born Ivoirian. The
Panel found these requirements to be reminiscent of the
identity card system in Rwanda that facilitated the genocide.
The Panel further noted that individuals, origins as
Ivoirians is at the crux of the civil war that has divided
this nation for the last five years.

-- Immigration procedures ) While the Panel declined to give
specific suggestions, it agreed that the current immigration
processes must be streamlined in accordance with the mandate
of Linas-Marcoussis.

-- National Human Rights Commission ) The Panel determined
that this law did not provide representation of all parties
and was therefore out of compliance with Linas-Marcoussis.


10. (C) The Panel approved the following legislation:

-- Media bills ) The Panel determined that laws on the
press and audiovisual media were in compliance with
Linas-Marcoussis. However, because the question of
representation on the new board of directors for state-owned
radio and television was so sensitive in the run-up to
elections, the Panel recommended that President Mbeki add
this matter to his agenda.

-- Structure of the Identity Commission ) The Panel
determined that this Commission met the requirements of
Linas-Marcoussis.


13. (C) Comment: The Panel's findings only confirmed what was
already widely understood -- President Gbagbo and his FPI
party have not kept their side of the Linas-Marcoussis
bargain. What remains to be seen is what President Mbeki
will do with these findings. The referendum issue is
especially troubling. Though the Panel's finding was very
narrow and legalistic, the bottom line is that they did not
find any reason in law why a referendum should not be
required. This will not help President Mbeki push the
Ivoirians toward a political compromise that will allow the
elections to go forward. End comment.
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