ZIMBABWE PRESIDENT DILUTES INDEPENDENCE OF HIGH

C O N F I D E N T I A L HARARE 007285

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH

LONDON FOR CHARLES GURNEY

PARIS FOR BISA WILLIAMS

NAIROBI FOR TERRY PFLAUMER

PASS USTR FOR ROSA WHITAKER

E.O. 12958: DECL: 12/29/10
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TAGS: PHUM PGOV ZI
SUBJECT: ZIMBABWE PRESIDENT DILUTES INDEPENDENCE OF HIGH
COURT WITH NEW APPOINTMENTS


CLASSIFIED BY CHARGE D'AFFAIRES EARL M. IRVING FOR
REASONS: 1.5 (B) AND (D).


1. (U) ON DECEMBER 21, PRESIDENT MUGABE EXPANDED THE
ZIMBABWE HIGH COURT BY SWEARING IN FOUR NEW JUSTICES.
THREE OF THE NEW JUSTICES HAVE CLEAR TIES TO THE RULING
ZANU-PF. RITA MAKARAU IS A FORMER NON-CONSTITUENCY MP
APPOINTED BY MUGABE AND SERVED IN THE LAST PARLIAMENT.
SHE WAS ALSO APPOINTED TO SERVE ON THE GOVERNMENT'S
CONSTITUTIONAL COMMISSION, WHICH LAST YEAR HIJACKED THE
BROAD-BASED NATIONAL CONSTITUTIONAL ASSEMBLY'S EFFORT TO
WRITE A NEW CONSTITUTION. CHARLES HUNGWE WAS THE FIRST
CHAIRMAN OF THE ZIMBABWE NATIONAL LIBERATION WAR
VETERANS' ASSOCIATION FROM 1992 TO 1995, AND WAS A
SENIOR MAGISTRATE BEFORE HIS HIGH COURT APPOINTMENT. HE
IS CURRENTLY A MEMBER OF THE ELECTORAL SUPERVISORY
COMMISSION, AND IS EXPECTED TO RESIGN FROM THAT POST TO
TAKE UP HIS NEW POSITION. BEN HLATSHWAYO, ALSO A MEMBER
OF THE NOW-DEFUNCT CONSTITUTIONAL COMMISSION, HAS BEEN A
STAUNCH CRITIC OF THE NCA, AND HE IS CURRENTLY AN
EDITORIAL ADVISOR TO THE PRO-ZANU-PF "ZIMBABWE MIRROR."
ANNE-MARIE GOWORA COMES FROM A PRIVATE LAW FIRM, AND
ONCE WORKED FOR THE ATTORNEY-GENERAL'S OFFICE. IT IS
UNCLEAR WHERE HER POLITICAL LEANINGS LIE. THE
APPOINTMENTS EXPAND THE HARARE HIGH COURT FROM 15 TO 19
JUSTICES. THE SIZE OF THE BULAWAYO HIGH COURT REMAINS
UNCHANGED AT FOUR JUSTICES.
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2. (C) BRIAN RAFTOPOULOS, A RESEARCH FELLOW AT THE
UNIVERSITY OF ZIMBABWE, TOLD THE EMBASSY THAT MUGABE'S
APPOINTEES ARE INDEED CLOSE TO THE RULING PARTY, BUT NOT
SO CLOSE THAT THEY CAN BE CALLED ZANU-PF PUPPETS.
MUGABE WANTS CREDIBLE AND COMPETENT PEOPLE ON THE COURT,
RAFTOPOULOS OFFERED, TO AT LEAST PRESERVE SOME
APPEARANCE OF JUDICIAL INDEPENDENCE. HIGH COURT
JUSTICESHIPS ARE NOT "STRAIGHTFORWARD PATRONAGE
POSITIONS," THE RESEARCH FELLOW CONTINUED, BECAUSE
JUSTICES EXERCISE A CONSIDERABLE AMOUNT OF AUTONOMY IN
THEIR RULINGS. THE JUDICIAL SERVICE COMMISSION, HEADED
BY THE STAUNCHLY INDEPENDENT SUPREME COURT CHIEF JUSTICE
ANTHONY GUBBAY, HAD TO APPROVE THE NOMINEES, WHICH ALSO
LENDS SOME CREDIBILITY TO THE APPOINTMENTS. (COMMENT:
RECENTLY APPOINTED TO THE JUDICIAL SERVICE COMMISSION
WERE TWO VERY PRO-ZANU-PF MEMBERS GODFREY CHIDIYASIKU--
THE HIGH COURT JUDGE PRESIDENT--AND CANAAN DUBE. IN
ANOTHER ATTEMPT AT VITIATING THE GATEKEEPER POINT OF THE
JUDICIARY'S INDEPENDENCE, THE COMMISSION CONTRACT OF BOB
STUMBLES--OUR EMBASSY LAWYER, AND WIDELY RESPECTED IN
THE LEGAL FIELD--WAS NOT RENEWED BY MUGABE. END
COMMENT.) NONETHELESS, THE APPOINTMENTS REFLECT
MUGABE'S ONGOING, LONG-TERM PLAN TO TURN THE JUDICIARY
INTO AN ARM OF GOVERNMENT MORE PLIABLE TO ZANU-PF'S
WISHES, RAFTOPOULOS BELIEVES.


3. (C) COMMENT: MUGABE'S EXPANSION OF THE HIGH COURT
WITH JUSTICES HAVING STRONG TIES TO THE RULING PARTY
UNDERMINES THE INDEPENDENCE OF THE JUDICIAL SYSTEM, IN
OUR VIEW. RAFTOPOULOS IS CORRECT IN THAT THE NEW
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JUSTICES HAVE STRONG LEGAL CREDENTIALS, AND MUGABE'S
ATTENTION TO THEIR CREDIBILITY SHOWS THAT THE PRESIDENT
STILL CARES ABOUT MAINTAINING A FACADE OF LEGALITY FOR
HIS PARTY'S ACTIONS. HOWEVER, THE JUDGE PRESIDENT OF
THE HIGH COURT IS AN AFFIRMED ZANU-PF LOYALIST, AND,
WITH A LARGER BENCH MORE AMENABLE TO HIS PARTY'S CAUSES,
HE WILL HAVE MORE OPTIONS IN ASSIGNING CASES WHEN THEY
COME BEFORE THE HIGH COURT. THE COURT HAS BEEN
ESPECIALLY ACTIVE IN ADJUDICATING CLAIMS OF COMMERCIAL
FARMERS DENIED DUE PROCESS IN THE SEIZURE OF THEIR LAND.
MUCH OF THIS ACTIVISM, IN THE GOVERNMENT'S
INTERPRETATION, COULD BE STOPPED COLD WHEN THE COURT
RESUMES ITS SESSION NEXT MONTH. END COMMENT.

IRVING

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