Zimbabwe’s diamonds saga- Mines Minister Obert Mpofu’s letter to KP chair

Mines Minister Obert Mpofu says Zimbabwe is now going to sell its diamonds produced after the Kimberley Process Certification Scheme Plenary in Jerusalem this month without any supervision because its mines have been declared KP compliant. It will, however, continue to work with the KP Monitor to Zimbabwe, Abbey Chikane, to certify all diamonds produced before the plenary. He said this in a letter to outgoing chairman Boaz Hirsch of Israel. Hirsch had sent out a notice saying Zimbabwe was not allowed to sell any diamonds from Marange because it had not been cleared by the Kimberley Process. Mpofu said Hirsch’s notice was unlawful and said Zimbabwe could take legal action against him and Israel. This view is supported by the African Diamond Producers Association. Below is Mpofu’s letter to the KP chair.

 19 November 2010

Boaz Hirsch

Kimberley Process Chairman

5 Bank Israel Street

Jerusalem

Israel 91036

Dear Sir,

1.I refer to your letter of 17 November 2010.

2.In your letter, you state the following:

• that you have been informed that Mr Abbey Chikane, the KP Monitor visited Zimbabwe and was presented with a large amount of rough diamonds for examination and certification;
• that you are disappointed by the news of Chikane’s visit;
• that Mr Chikane did not have the authority or approval of either you or that (of) WGM and consequently, his visit was not compliant with the JWP;
• that you have been carrying out ongoing consultations to achieve consensus;
• that you intend to convene a meeting of the WGM next week to continue dialogue;
• that you call upon Zimbabwe to exercise restraint and patience in relation to diamond exports;
• that Zimbabwe must give a chance to a negotiated agreement.

3.Chairman, simultaneous with the dispatch of your letter of 17 November 2010, you purportedly issued an unlawful, mischievous, scandalous and unilateral ban in trade in the Marange diamonds. In your notice (“the Notice”), whose full text I quote below for ease of reference, you constitute yourself “the Plenary of the KP” and unlawfully usurpe (sic) the powers of the Plenary. Your notice states that:

“KP Chair Notice Consultations on Kimberley Process Arrangements Application Applicable to Marange diamonds in compliance with KPCS requirements

As is known to all Kimberley Process (KP) participants, and as is stated in the Draft communiqué circulated to all participants on November 12th, 2010, the Plenary did not come to an agreement regarding KPCS arrangement for diamonds from the Marange area (Zimbabwe).

Consultations are ongoing and I am confident that we will find a consensual way forward which recognises the progress made by Zimbabwe in terms of compliance with KP requirements, whilst offering sufficient reassurance that there would continue to be progress in all areas under the Joint Work Plan so that we can eventually bring the whole of Marange- and indeed Zimbabwe as a participant- into full KP compliance.

Meanwhile, it is of utmost importance that all participants remain vigilant and ensure that terms of the Joint Work Plan and Saint Petersburg agreement are respected these consultations are ongoing.

As a consequence, no trade of Marange diamonds can currently take place under the joint Work Plan until an agreement can be found. Participants are therefore reminded of the need for vigilance and ask participant to notify the WGM (Working Group on Monitoring) chair in the event of receipt of an irregular shipment of Marange diamonds, until new arrangements are agreed that will allow continued implementation of the Joint Work Plan, including the supervised export mechanism. I very much count on your support and will keep you informed of developments.

This notice replaces my previous notice of 6 May 2010.”

4.In respect of the matters recorded above, we state the following:-

• the Joint Work Plan established in terms of the Administrative Decision in Swakopmund was intended to achieve only one objective: “compliance with the KPCS minimum standards”, this is clear from the unambiguous language of the Administrative Decision;
• the Joint Work Plan did not impose an embargo on diamond exports from Zimbabwe, and in particular, from Marange. It was, in fact, agreed that exports of rough diamonds from Marange would be effected in accordance with the Supervised Export Mechanism with the jointly-appointed and independently mandated KP Monitor confirming compliance with KPCS minimum requirements. No other conditions were imposed in relation to the export of rough diamonds mined in Zimbabwe.
• You will recall our letter of 20 September 2010, a copy of which is attached, wherein we castigated the politicization of the Kimberley Process and the abuse of the Joint Work Plan. You will also recall our letter of 19 October wherein we advised that we were proceeding to Invite the Monitor to Zimbabwe to certify the stockpile and current production before the Plenary as it was clear that the WGM was allowing abuse from the “illegal Sanctions States” and that more importantly, the report of the Review Mission had been unduly delayed through no fault on our part and, consequently Zimbabwe could not bear prejudice on account of delays occasioned by the Kimberley Process itself;
• It is important that I repeat what I stated in my letter of 20 September 2010, that the KP Monitor does not require the approval of the WGM to perform his functions under the Supervised Export Mechanism, the terms of reference of the Monitor stating the following: “the KP Monitor will perform its tasks under the aegis and supervision of the Working Group on Monitoring”. This should not and can never be interpreted to mean that the KP Monitor requires approval of the WGM under the Supervised Export Mechanism;
• More importantly, the Joint Work Plan being an integral part of an Administrative only subsists from one Plenary to the next. You are aware that no Administrative Decision was made on Zimbabwe at the last Plenary and that, by effluxion of time, the last Joint Work Plan has expired. Your reference to the Joint Work Plan must be with the understanding that it is no longer of any force and effect.

5.You will be aware, Chairman, from the Jerusalem Agreement, which you supported in the Open Plenary against overwhelming support for it from the vast majority of KP members without any disensus or statement in opposition as regards exports, that the following is provided:

“Exports: Plenary recognised that the Review Mission and the KP Monitor have confirmed that Mbada and Canadile are KP compliant. Unsupervised exports of current production are permitted with immediate effect from Mbada and Canadile. Zimbabwe is to continue with its quarterly reporting to the WGM on the exports undertaken by Mbada and Canadile and on the remaining issues identified under the JWP.”

And

“Stockpile.

a. Mbada and Canadile. Unsupervised exports are to take place in regularised intervals until intercessional 2011.”

6.You will also recall, Chairman, from your direct involvement in the negotiations between Zimbabwe and the United States of America that these provisions of the Jerusalem Agreement were agreed upon by the United States of America and yourself, the only outstanding issue being the provision relating to violence and its effect on future exports.

7.It is clear, therefore, in relation to exports that Zimbabwe does not need the Monitor’s stamp. It was deemed appropriate that the stockpiles and the production pre-Plenary which ought to have been certified by the Monitor, be certified by the Monitor for the purposes of closing that chapter and addressing the expectations of the buyers that had been awarded those goods on tenders awarded before the Plenary.

8.You will also recall, Chairman, that during negotiations, the proponents of the Supervised Exports had, in fact, settled for, and agreed to, the position that the Monitor would return to Zimbabwe solely on the invitation of the Government of Zimbabwe without the involvement of the WGM and the KP.

9.It is clear from the Notice that you have issued, imposing a ban on the Marange goods that the aforementioned Notice is ultra vires, unauthorised and unilateral. We say this because the issue of Zimbabwe was discussed at the Plenary and not the WGM level. The Plenary is, therefore, seized with this matter. The WGM does not, therefore, have jurisdiction in this matter.  In this regard, your indication that you intend to convene a meeting of the WGM is unacceptable as we would only accept a sitting of the Plenary.

10.You will (k)now that the WGM only sat once to discuss the issue of Zimbabwe, one 1 November 2010 and 16:00 hrs and that thereafter it never convened and was relegated to a corridor institution as further deliberations were reduced to direct engagement between the United States of America and Zimbabwe, at the instance of the United States of America. Indeed, the Jerusalem Agreement is an agreement between Zimbabwe and the United States of America, save for the issue of violence and its affect (sic) on future exports, which the two countries are close to resolving.

11.We therefore, categorically state that in issuing your Notice purporting to ban the trade in Marange diamonds, you have usurped the powers of the Plenary and you have invited legal consequences upon yourself and, indeed, Zimbabwe reserves its right to institute legal action against yourself and the State of Israel as KP Chair. You are not empowered to make the decision that you have purported to make, which in any event, is void and of no force and effect and constitutes a blatant violation of the protection afforded to Zimbabwe as a member of the World Trade Organisation. This is so having regard to the fact that the Marange diamonds are not blood diamonds, a fact which (h)as been accepted by every member of the KP without exception. The KPCS-WTO waiver relates to blood diamonds: you cannot restrict the trade of compliant goods without contravening the WTO rules.

12.I must also state that we are not available to attend the meetings of the WGM for the reasons aforementioned.  Going forward, you must be reminded that you requested three days to conclude consultations with those participants that you intended to consult. At the expiration of the three days, you did not revert to Zimbabwe. As KP chair, you breached your undertaking and we feel that you have not dealt with us honourably and with integrity. You have, instead yielded to political schemes disingenuously devised by NGOs and the participants opposed to our export of diamonds. The ban is, therefore, invalid for the aforementioned reasons.

13.The terms of your Notice will, in the circumstances, not be accepted. For  the reasons detailed, we require that you formally retract the notice with immediate effect and issue a public apology to the government and people of Zimbabwe. It is both shocking and reprehensible that you, as a citizen of a country that is continuously and unfairly castigated around the world can behave as you have. Each passing day that you fail to withdraw the Notice causes Zimbabwe and its investors to sustain massive damage for which you and any other person (directly or indirectly involved or who is party to your unlawful conduct) will be held accountable.

14.For the avoidance of doubt, we shall be continuing with unsupervised exports of all post-Plenary production and the export of all the pre-plenary production certified by the Monitor. We shall continue to resist the politicisation of the KP by participants and NGOs which are continuing with their unlawful machinations to irreparably prejudice the people of Zimbabwe.

Yours faithfully,                                                                                                                                                                                                                                                                                            Hon. Obert Moses Mpofu, MP                                                                                                                                                                                                                                                                Minister of Mines and Mining Development

See also:

African Diamond Producers Association statement in full

KP Chair Boaz Hirsch’s statement in Full

Chikane’s side of the story

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