CAPITAL RADIO CASE CONFOUNDS COURTS

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 005675

SIPDIS

DEPT FOR AF/PD (COX, ROBERTSON, HOWARD, SANDERS)

NSC FOR SENIOR AFRICAN DIRECTOR GAYLE SMITH

PASS USAID FOR A/AID-RMCCALL, AFR/SA-NNEWMAN, AFR/SD-
DWELLER, AFR/SA-CREINTSMA, AA/AFR-VNEWTON, AND BHR/OTI-
MSCOTT

E.O. 12958: DECL: 10/06/10
TAGS: PHUM PGOV ECPS ZI
SUBJECT: CAPITAL RADIO CASE CONFOUNDS COURTS
CONFIDENTIAL

PAGE 02 HARARE 05675 01 OF 02 061121Z

REF: HARARE 5651

CLASSIFIED BY AMBASSADOR TOM MCDONALD FOR REASONS 1.5
B/D.

SUMMARY
--------------


1. (C) THE CAPITAL RADIO CASE HAS GENERATED A FLURRY OF
CONFLICTING COURT RULINGS AND ORDERS, PRECIPITATED BY
THE SUPREME COURT'S SEPTEMBER 22 RULING THAT DECLARED
UNCONSTITUTIONAL THE GOVERNMENT'S BROADCASTING MONOPOLY.
AFTER CAPITAL RADIO'S OPERATION WAS SHUT DOWN, THE
INFORMATION AND HOME AFFAIRS MINISTERS HELD A PRESS
CONFERENCE ON OCTOBER 5 IN WHICH THEY BLAMED THE BRITISH
HIGH COMMISSION FOR INTERFERENCE IN THIS MATTER AND SAID
"THESE DAYS OF RUNNING TO THE COURTS WILL BE OVER SOON,
VERY SOON." THE GOVERNMENT'S ACTIONS IN THIS CASE
CONFIRM THAT IT WILL DO ALL IT CAN, LIKELY INCLUDING
IGNORING COURT RULINGS, TO MAINTAIN ITS CONTROL OVER THE
AIRWAVES, THE PREDOMINANT SOURCE OF NEWS IN RURAL AREAS,
ZANU-PF'S TRADITIONAL BASE OF SUPPORT. END SUMMARY.


2. (C) THE CAPITAL RADIO CASE HAS QUICKLY GENERATED A
FLURRY OF CONFLICTING COURT RULINGS, ORDERS, SUMMONS,
COMPLAINTS, INJUNCTIONS, WARRANTS AND CONTEMPT CHARGES.
EVEN IF THERE ARE NO MORE NEW CHARGES, IT WILL TAKE
MONTHS TO SORT OUT THE LEGAL TANGLE SURROUNDING CAPITAL
RADIO AND BROADCASTING IN ZIMBABWE.

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3. (SBU) HERE IS A LIST OF THE LEGAL ACTIONS THAT HAVE
ACCRUED IN THE LAST DAY AND A HALF:

-- A SEARCH WARRANT GRANTED TO POLICE ON OCTOBER 4 BY A
HARARE MAGISTRATE GIVING THE FORCE PERMISSION TO SEARCH
FOR AND SEIZE BROADCASTING EQUIPMENT BEING OPERATED BY
CAPITAL RADIO. NOTE: MINISTER OF INFORMATION JONATHAN
MOYO CLAIMS THIS WARRANT EXISTS, BUT ITS TIMING, BASIS
AND COVERAGE ARE VAGUE. END NOTE.

-- A RESTRAINING ORDER AGAINST THE POLICE, TO PREVENT
THEIR SEIZURE OF BROADCASTING EQUIPMENT BEING OPERATED
BY CAPITAL RADIO. THIS ORDER WAS ISSUED BY HIGH COURT
JUDGE ISHMAEL CHATIKOBO AT ABOUT 1700 ON OCTOBER 4.

-- A SUMMONS ISSUED BY HIGH COURT JUDGE ISHMAEL
CHATIKOBO ON OCTOBER 5 TO POLICE COMMISSIONER AUGUSTINE
CHIHURI AND ASSISTANT COMMISSIONER LIBERMAN NDLOVU. THE
POLICE OFFICIALS ARE BEING SUMMONED TO SHOW CAUSE WHY
THEY SHOULD NOT BE HELD IN CONTEMPT OF COURT FOR THEIR
OCTOBER 4 REFUSAL TO ABIDE BY THE COURT ORDER BARRING
THEM FROM SEARCHING CAPITAL RADIO'S PREMISES.

-- A FORMAL COMPLAINT LODGED BY INFORMATION MINISTER
JONATHAN MOYO AGAINST THE HIGH COURT FOR THE OCTOBER 4
ISSUANCE OF THE ORDER BARRING POLICE FROM SEARCHING
CAPITAL RADIO'S PREMISES.

-- AN OCTOBER 5 COURT RULING FROM HIGH COURT JUSTICE
ELIZABETH GWAUNZA THAT THE SECTIONS OF THE RADIO
COMMUNICATIONS ACT CITED BY POLICE AS LEGAL
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JUSTIFICATION FOR THEIR RAID ON CAPITAL RADIO HAVE NO
APPLICATION TO BROADCASTING AND THAT, THEREFORE, CAPITAL
RADIO HAS NOT BROKEN ANY LAW.

-- ANOTHER OCTOBER 5 RULING FROM JUSTICE GWAUNZA THAT
THE POLICE SHOULD IMMEDIATELY RETURN ALL OF THE SEIZED
EQUIPMENT TO CAPITAL RADIO.

-- AN OCTOBER 5 RULING FROM JUSTICE GWAUNZA THAT,
CONTRARY TO THE BROADCASTING REGULATORY FRAMEWORK
ANNOUNCED BY THE GOVERNMENT ON OCTOBER 4, THE POSTS AND
TELECOMMUNICATIONS CORPORATION (PTC),NOT MINISTER MOYO,
HAS SOLE AUTHORITY TO ALLOCATE BROADCAST FREQUENCIES.

-- AND, FINALLY, AN OCTOBER 5 ORDER BY JUSTICE GWAUNZA
THAT THE PTC INSPECT CAPITAL RADIO'S EQUIPMENT AND
BROADCAST SITE, AND ISSUE THE STATION A FREQUENCY WITHIN
10 DAYS.


4. (C) ALL OF THIS WAS PRECIPITATED BY THE SEPTEMBER 22
SUPREME COURT RULING THAT DECLARED ZIMBABWE'S
BROADCASTING LAW UNCONSTITUTIONAL.


5. (C) IN SIDESHOW ACTIVITY, MINISTER MOYO AND HOME
AFFAIRS MINISTER JOHN NKOMO HELD A PRESS CONFERENCE ON

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CONFIDENTIAL PTQ7372

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ACTION IRM-00

INFO LOG-00 NP-00 AF-00 AID-00 AMAD-00 CIAE-00 CIP-00
DODE-00 SRPP-00 DS-00 EB-00 FCC-01 VC-00 H-01
TEDE-00 INR-00 IO-00 L-00 VCE-00 AC-01 NSAE-00
OIC-02 OMB-01 OPIC-01 PA-00 PM-00 PRS-00 ACE-00
P-00 SP-00 SSO-00 STR-00 TRSE-00 USIE-00 PMB-00
DSCC-00 PRM-01 DRL-02 G-00 NFAT-00 SAS-00 SWCI-00
/010W
-------------- 8E9C41 061122Z /38
O 061121Z OCT 00
FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 7306
INFO NSC WASHDC IMMEDIATE
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY

C O N F I D E N T I A L SECTION 02 OF 02 HARARE 005675

SIPDIS

DEPT FOR AF/PD (COX, ROBERTSON, HOWARD, SANDERS)

NSC FOR SENIOR AFRICAN DIRECTOR GAYLE SMITH

PASS USAID FOR A/AID-RMCCALL, AFR/SA-NNEWMAN, AFR/SD-
DWELLER, AFR/SA-CREINTSMA, AA/AFR-VNEWTON, AND BHR/OTI-
MSCOTT

E.O. 12958: DECL: 10/06/10
TAGS: PHUM PGOV ECPS ZI
SUBJECT: CAPITAL RADIO CASE CONFOUNDS COURTS
CONFIDENTIAL

PAGE 02 HARARE 05675 02 OF 02 061122Z

OCTOBER 5 TO DISCUSS THE CAPITAL RADIO CASE. DURING THE
CONFERENCE THEY LAMBASTED THE BRITISH HIGH COMMISSION IN
HARARE FOR "INTERFERENCE," CITING THE HIGH COMMISSION'S
INQUIRIES TO POLICE ABOUT THE ACTIONS BEING TAKEN
AGAINST GERRY JACKSON, A BRITISH CITIZEN CO-OWNER OF
CAPITAL RADIO. MOYO AND NKOMO ALSO SAID THAT THEY WOULD
BE INVESTIGATING THE CROWNE PLAZA (HOLIDAY INN) HOTEL'S
COMPLICITY IN THE CAPITAL RADIO'S OPERATION (THE
MAKESHIFT STUDIO AND ANTENNA WERE LOCATED AT THIS HOTEL)
AND ANY LAWS THE STATION MAY HAVE VIOLATED BY TAPPING
INTO THE HOTEL'S CLOSED-CIRCUIT MUSIC SYSTEM. MOYO AND
NKOMO ALSO MUTTERED DARKLY ABOUT THE ROLE OF THE COURTS.
MOYO SAID THAT IT WAS "...RIDICULOUS THAT POLICE SHOULD
HAVE TO RUN TO THE COURTS FOR PERMISSION TO PROTECT
NATIONAL SECURITY." NKOMO ADDED, "...THESE DAYS OF
RUNNING TO THE COURTS WILL BE OVER SOON, VERY SOON."

COMMENT
--------------


6. (C) CAPITAL RADIO HAS BEEN VERY CAREFUL TO ENSURE
THAT IT OPERATES CONSISTENT WITH ZIMBABWEAN LAW, AND
BEGAN TO BROADCAST ONLY AFTER A SEPTEMBER 22 SUPREME
COURT RULING THAT THE GOVERNMENT'S MONOPOLY ON THE
AIRWAVES WAS UNCONSTITUTIONAL. HOWEVER, INFORMATION
MINISTER MOYO INSISTED THAT THE SUPREME COURT RULING DID
NOT OBVIATE THE NEED FOR A LICENSE AND ALLOCATION OF A
FREQUENCY, WHICH ONLY THE GOVERNMENT COULD ISSUE, AND
ENACTED NEW REGULATIONS AFTER CAPITAL RADIO BEGAN ITS
BROADCASTS. THE POLICE CLOSURE OF CAPITAL RADIO
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CONFIRMS THAT THE GOVERNMENT WILL DO ALL IT CAN TO
MAINTAIN ITS CONTROL OVER THE AIRWAVES, THE RURAL
POPULATION'S PREDOMINANT SOURCE OF NEWS AND INFORMATION.
THE GOZ IS TOTALLY PARANOID THAT IF AN INDEPENDENT RADIO
STATION IS ABLE TO BROADCAST TO RURAL AREAS, THE MDC
WILL GET A STRONG FOOTHOLD IN AREAS THAT TRADITIONALLY
SUPPORT ZANU-PF. WE EXPECT THE LEGAL WRANGLING TO
CONTINUE, BUT THE OCTOBER 5 STATEMENTS BY MINISTERS MOYO
AND NKOMO ARE A CLEAR SIGNAL THAT THE GOZ INTENDS TO
IGNORE SUBSEQUENT COURT RULINGS THAT ARE INIMICAL TO ITS
INTERESTS IN THIS CASE. END COMMENT.

MCDONALD

CONFIDENTIAL

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