United States sanctions review. . . Devil is in the detail

Tawanda Musarurwa

ON March 4, 2024, United States President Joe Biden signed Executive Order 14353, which somewhat shifted the US’ sanctions regime on Zimbabwe.

But what exactly has changed?

The devil is in the detail.

In a letter to Congress (as per requirement of the International Emergency Economic Powers Act), President Biden wrote: “Although I continue to be concerned with the situation in Zimbabwe . . . I have determined that the declaration of a national emergency in Executive Order 13288 is no longer needed.”

The US no longer considers the “situation” in Zimbabwe a “national emergency”.

About Executive Order 13288

Executive Order 13288 was signed in 2003 by then-President George W. Bush in response to the Zimbabwe Government’s implementation of the Fast-Track Land Reform Programme in the early 2000s.

On November 22, 2005, President George W. Bush signed Executive Order 13391, which blocked the property of additional persons said to be “undermining democratic processes or institutions in Zimbabwe”.

And on July 25, 2008, President George W. Bush signed Executive Order 13469, which added more “persons” to the list of sanctioned individuals and entities.

But why executive orders?

According to the American Bar Association, an “executive order” is a signed, written and published directive from the President of the US that manages operations of the federal government.

The association adds: “Executive orders are not legislation; they require no approval from Congress, and Congress cannot simply overturn them. Congress may pass legislation that might make it difficult, or even impossible, to carry out the order, such as removing funding. Only a sitting US president may overturn an existing executive order by issuing another executive order to that effect.” To the extent that executive orders do not require approval from Congress, they give US presidents the power to act unilaterally, and are, therefore, a key element in the implementation of foreign policy decisions when dealing with “unusual and extraordinary” threats.

The real sanctions — ZDERA

President Biden’s Executive Order 14353 has terminated Executive Order 13288, but what does that mean for the sanctions regime on Zimbabwe? It is important to understand that beyond Executive Order 13288 (and the attendant Executive Orders 13391 and 13469) — which outlined travel and economic sanctions on “targeted individuals and entities” — the backbone of the US sanctions regime on Zimbabwe is the Zimbabwe Democracy and Economic Recovery Act (ZDERA) of 2001.

ZDERA, which was amended in August 2018, is still in existence. Section 4(c) of ZDERA, titled “Multilateral Financial Restrictions”, reads: “Until the President of the United States makes the certification described in subsection 4(d), the Secretary of the Treasury Executive to each of the international financial institutions must oppose or vote against: (i) an extension by the respective institutions of any loan, credit or guarantee to the Government of Zimbabwe; (ii) Any cancellation or reduction of indebtedness owed by the Government of Zimbabwe to the United States or any international financial institution.”

The effect of ZDERA is to cut off Zimbabwe from the global financial system. The principal US organ that has been ensuring that transactions originating from Zimbabwe are compliant with the extraterritorial legislation has been the Office of Foreign Assets Control of the US Department of the Treasury, which administers and enforces economic and trade sanctions based on US foreign policy.