DADDAH MAKES LEGAL CASE FOR JUNTA MEMBERS'

C O N F I D E N T I A L SECTION 01 OF 02 NOUAKCHOTT 000222

SIPDIS

E.O. 12958: DECL: 03/25/2019
TAGS: PGOV PREL KDEM MR
SUBJECT: DADDAH MAKES LEGAL CASE FOR JUNTA MEMBERS'
INELIGIBILITY IN UPCOMING PRESIDENTIAL ELECTIONS

Classified By: Charge d'Affaires Dennis Hankins for reasons 1.4 (b) and
(d).


1. (U) This is an action request. Please see paragraph 7.


2. (C) Charge received a letter March 25 from RFD President
Ahmed Ould Daddah. The letter outlines the RFD's argument
(which was also made publicly in the press) that members of
the military junta (High State Council) cannot legally stand
as candidates in the upcoming June 6 presidential election.
(Note: Previously, the HSC has argued that as long as
members of the military resign before the day of the
election, they can stand as candidates and be in conformance
with Mauritanian law. Hence the plan for junta leader
General Aziz to resign 45 days before the election, become a
"civilian," and run for president. End note.)


3. (SBU) Daddah's case for junta members' ineligibility in
the June 6 presidential election rests on the following
points:

-- Article 80 of the Mauritanian constitution states:
"Treaties and accords duly approved shall, upon their
publication, be superior to laws."
-- Both chambers of the Mauritanian parliament ratified and
published the African Charter for Democracy, Elections, and
Governance on April 29, 2008. (Note: This was three months
before the coup. End note.) Article 25, line 4 of this
treaty states that "the authors of an anti-constitutional
change in government cannot participate in elections
organized to restore democratic order, nor can they occupy
posts of responsibility in their country."
-- Therefore, the Mauritanian government has the legal
requirement to respect the treaty, according to the
constitution and international law. Because the members of
the High State Council perpetrated an "anti-constitutional
change in government," they cannot run as candidates in the
election.


4. (SBU) The proposal anticipates the potential
counterargument that 15 signatories are needed to bring the
treaty into effect. (Note: Only two countries, Mauritania
and Ethiopia, have ratified the African Charter for
Democracy, Elections, and Governance thus far. Therefore, it
could be argued that the treaty is not binding, as it needs
15 ratifications to come into force. End note). The RFD
attempts to rebut this argument by citing the 1969 Vienna
Convention on treaties, article 16, line b, which states:
"Unless the treaty otherwise provides, instruments of
ratification, acceptance, approval or accession establish the
consent of a State to be bound by a treaty upon their deposit
with the depositary." Note: Curiously, the RFD does not
cite article 18, which specifies states' obligations "not to
defeat the object and purpose of a treaty prior to its entry
into force." Article 18 could potentially strengthen their
legal argument that the Charter is currently binding. End
note.


5. (SBU) The proposal also selectively quotes Article 80 of
the Mauritanian constitution. The full text of the article
states: "Treaties and accords duly ratified or approved
shall, upon their publication, be superior to laws, subject
to, for each accord or treaty, its implementation by the
other party." The latter part of Article 80 seems to imply
that the treaty must be in force by the other party (the
African Union, in this case) for it to be superior to laws.
This would undermine Daddah's legal argument. The French
Charge told Charge March 24 that their understanding is that
Mauritania is not subject to the Charter since it is not yet
in force.


6. (C) Comment: Daddah continues to try to find ways to
exclude the military from running in the presidential
elections (conveniently leaving himself as the most viable
candidate remaining). It is unclear whether or not his legal
reasoning is sound. If so, it is another argument that
internal anti-coup forces and the international community can

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use to discredit Aziz's planned elections. However, the real
practical effect of such technical legal arguments would be
small; no one expects Aziz to suddenly discover a new-found
respect for international law and step aside. End comment.


7. (C) Comment - continued: In a March 25 meeting with the
FNDD's diplomatic head, Mohamed Ould Maouloud, Charge was
told the FNDD finds Daddah's argument useful in causing
embarrassment and complication for the regime, but overall
sees this as just a minor diversion from their overall
strategy. Since the FNDD rejects the military's program of
anticipated elections under anyone but Abdallahi, the issue
of whether former military can run in those elections or not
is mute. Charge noted that our initial reading is that the
argument that Mauritania is bound by treaty to prohibit coup
leaders from running in elections is, at best, arguable.
Charge suggested it better to focus on the points that
Mauritania had taken the lead in Africa to take a hard line
against coups and that both houses of parliament had ratified
a decision to preclude the military from running. Charge
said we would seek a legal assessment of whether Mauritania
had a treaty obligation or not and that we would share the
assessment with the FNDD if it strengthened their case
(otherwise we would keep mum).


8. (SBU) ACTION REQUEST: Post requests guidance on whether
Daddah's legal argument is sound. Post would be particularly
grateful for legal guidance as to whether or not Mauritania,
as a signatory to the African Charter for Democracy,
Elections, and Governance, is legally bound to respect the
charter, given that it has not officially come into effect.
HANKINS