US embassy cable - 05ABIDJAN487

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, Elections 
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. 
HOOKS