SUPREME COURT RULES ON CFU LAND CASE, DECISION

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 007286 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH TREASURY FOR OASIA/EBARBER, BHOFFMAN LONDON FOR CGURNEY PARIS FOR BISA WILLIAMS NAIROBI FOR PFLAUMER PASS USAID FOR AFR/SD - DWELLER, AFR/SA - CPALMA, NNEWMAN, AA/AFR USTR FOR ROSA WHITAKER CONFIDENTIAL PAGE 02 HARARE 07286 01 OF 02 291134Z E.O. 12958: DECL 12/29/10 TAGS: PHUM PGOV EAGR EAID ZI SUBJECT: SUPREME COURT RULES ON CFU LAND CASE, DECISION PROVIDES WIGGLE ROOM TO PRESIDENT MUGABE CLASSIFIED BY CHARGE D' AFFAIRES EARL M. IRVING FOR REASONS 1.5 (B/D). REFS: A. HARARE 6802, B. HARARE 6547, C. HARARE 6330, D. HARARE 5469, E. HARARE 5337 ¶1. (C) SUMMARY: ON DECEMBER 21 THE SUPREME COURT ISSUED ITS RULING ON ALL ASPECTS OF THE BROAD LAWSUIT FILED BY THE COMMERCIAL FARMERS UNION (CFU) AGAINST PRESIDENT MUGABE AND FIVE MEMBERS OF THE GOVERNMENT OF ZIMBABWE (GOZ) (REFTEL E). THE SUPREME COURT RULED THAT TWO OF THE DECLARATIONS (CHARGES) MADE BY THE CFU REGARDING ACTIONS PRESIDENT MUGABE HAD TAKEN UNDER THE PRESIDENTIAL POWERS (TEMPORARY MEASURES) ACT HAD BEEN MADE IRRELEVANT BY PARLIAMENT'S AMENDMENT OF THE LAND ACQUISITION ACT. THE COURT RULED IN FAVOR OF THE CFU ON EIGHT OTHER DECLARATIONS. THE COURT SPECIFICALLY DECLARED AT THE CONCLUSION OF ITS RULING THAT: THE RULE OF LAW HAS BEEN PERSISTENTLY VIOLATED IN THE COMMERCIAL FARMING AREAS SINCE FEBRUARY; THAT THE COMMERCIAL FARMERS AND THEIR FARMWORKERS HAVE BEEN DENIED PROTECTION OF THE LAW, SUFFERED DISCRIMINATION ON THE GROUNDS OF THEIR POLITICAL OPINIONS AND PLACES OF ORIGIN, AND HAD THEIR RIGHTS OF ASSEMBLY AND ASSOCIATION INFRINGED, ALL IN VIOLATION OF THE CONSTITUTION; THAT A CONFIDENTIAL PAGE 03 HARARE 07286 01 OF 02 291134Z PROGRAM OF LAND REFORM AS DEFINED IN THE CONSTITUTION DOES NOT CURRENTLY EXIST; AND THAT THE AMENDMENT TO THE LAND ACQUISITION ACT MAKING GOZ NOTICES OF INTENT TO ACQUIRE LAND VALID INDEFINITELY WAS LEGALLY INVALID BECAUSE IT CONFLICTED WITH THE CONSTITUTION'S REQUIREMENT FOR REASONABLE NOTICE. THE SUPREME COURT RULING ALSO PROVIDES SOMETHING FOR MUGABE, IN THAT IT MENTIONS THE LEGITIMATE NEED FOR LAND REFORM IN ZIMBABWE AND GIVES THE GOZ UNTIL JULY 1, 2001 TO DEVELOP A PLAN THAT WILL MEET THE CRITERIA OF THE CONSTITUTION. AS OF DECEMBER 29, THERE HAD BEEN NO OFFICIAL COMMENT FROM PRESIDENT MUGABE OR OTHER GOZ OFFICIALS REGARDING THE COURT'S RULING. END SUMMARY. -------------- THE COURT SIDES WITH CFU -------------- ¶2. (C) ON RELEASE OF THE COURT'S DECISION ECONOFF SPOKE WITH THE PRESIDENT OF THE CFU, MR. TIM HENWOOD, AND LEARNED THAT THE CFU WAS PLEASED WITH THE RULING, AND RECOGNIZED THAT THE COURT, WHILE RULING ACROSS THE BOARD IN FAVOR OF THE CFU'S DECLARATIONS, HAD DONE SO IN A MANNER THAT LEFT OPEN THE DOOR FOR FACE-SAVING CHANGES IN "FAST-TRACK" BY PRESIDENT MUGABE. HENWOOD LATER ISSUED A STATEMENT HAILING THE COURT'S RULING, BUT ALSO DECLARING HIS "FERVENT HOPE THAT ALL STAKEHOLDERS WILL GRASP THIS JUDGEMENT AS A TIMELY NATION-BUILDING OPPORTUNITY TOWARDS SUSTAINABLE LAND REFORM AND A RETURN TO LAW AND ORDER." CONFIDENTIAL PAGE 04 HARARE 07286 01 OF 02 291134Z -------------- NO LAND REFORM PLAN AND NO RULE OF LAW -------------- ¶3. (C) THE COURT MADE IT PERFECTLY CLEAR IN ITS RULING THAT THERE IS NO LAND REFORM PLAN OR PROGRAM AS DEFINED IN THE CONSTITUTION AND REQUIRED BY THE LAW. AS THE COURT STATES, "THE FAST TRACK PLAN IS SIMPLY AN 'INTENTION'." THE COURT ALSO CLEARLY STATED THAT THE RULE OF LAW HAS BEEN CONSISTENTLY IGNORED BY THE GOZ SINCE FEBRUARY ON THE COMMERCIAL FARMS, BOTH IN TERMS OF PROTECTING THE FARMERS AND THEIR FARM WORKERS, AND IN TERMS OF THE ACTIONS TAKEN BY THE GOZ AFTER IT BEGAN "FAST-TRACK" IN JUNE. REGARDING THE FARM INVASIONS THAT MUGABE CLAIMS HAVE BEEN THE INDEPENDENT ACTIONS OF FRUSTRATED LANDLESS BLACK ZIMBABWEANS, THE COURT STATES "THEY HAVE BEEN SUPPORTED, ENCOURAGED, TRANSPORTED AND FINANCED BY PARTY OFFICIALS, PUBLIC SERVANTS, THE CIO AND THE ARMY." THE COURT ADDED THAT "COMMON LAW CRIMES HAVE BEEN, AND ARE BEING, COMMITTED WITH IMPUNITY. LAWS MADE BY PARLIAMENT HAVE BEEN FLOUTED BY THE GOVERNMENT. THE ACTIVITIES OF THE PAST NINE MONTHS MUST BE CONDEMNED." THE COURT ADDED THAT THE GOZ ADMITTED TO THE ABSENCE OF THE RULE OF LAW AS PART OF THE SUPREME CONFIDENTIAL CONFIDENTIAL PTQ0469 PAGE 01 HARARE 07286 02 OF 02 291135Z ACTION AF-00 INFO LOG-00 NP-00 AGRE-00 AID-00 AMAD-00 CIAE-00 COME-00 DODE-00 SRPP-00 DS-00 EB-00 EUR-00 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 STR-00 USIE-00 BBG-00 R-00 PMB-00 DSCC-00 PRM-02 DRL-02 G-00 NFAT-00 SAS-00 /010W -------------- B0C1E7 291135Z /38 R 291134Z DEC 00 FM AMEMBASSY HARARE TO SECSTATE WASHDC 7918 INFO NSC WASHDC DEPT OF TREASURY WASHDC SOUTHERN AFRICAN DEVELOPMENT COMMUNITY AMEMBASSY NAIROBI C O N F I D E N T I A L SECTION 02 OF 02 HARARE 007286 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH TREASURY FOR OASIA/EBARBER, BHOFFMAN LONDON FOR CGURNEY PARIS FOR BISA WILLIAMS NAIROBI FOR PFLAUMER PASS USAID FOR AFR/SD - DWELLER, AFR/SA - CPALMA, NNEWMAN, AA/AFR USTR FOR ROSA WHITAKER CONFIDENTIAL PAGE 02 HARARE 07286 02 OF 02 291135Z E.O. 12958: DECL 12/29/10 TAGS: PHUM PGOV EAGR EAID ZI SUBJECT: SUPREME COURT RULES ON CFU LAND CASE, DECISION PROVIDES WIGGLE ROOM TO PRESIDENT MUGABE COURT CONSENT ORDER OF NOVEMBER 7 (REFTEL C). -------------- THE RULING GIVES WIGGLE ROOM TO MUGABE -------------- ¶4. (C) THE COURT'S RULING INCLUDES A "HISTORICAL" SECTION THAT DETAILS PAST CAUSES OF THE LAND IMBALANCE BETWEEN WHITE AND BLACK ZIMBABWEANS, AND ESPOUSES THE LEGITIMATE NEED TO REDRESS THE IMBALANCE. IN THE CONTEXT OF ALL THE "WICKED THINGS (THAT) HAVE BEEN DONE, AND CONTINUE TO BE DONE" BY THE GOZ IN THE NAME OF LAND REFORM SINCE FEBRUARY, THE COURT STATES "THAT DOES NOT MEAN THAT WE CAN IGNORE THE IMPERATIVE OF LAND REFORM. WE CANNOT PUNISH WHAT IS WRONG BY STOPPING WHAT IS RIGHT." IN TERMS OF ONE OF THE MOST INTRACTABLE ISSUES, THAT OF WHAT TO DO WITH THE "THOUSANDS OF PEOPLE (THAT) HAVE BEEN PERMITTED AND ENCOURAGED TO INVADE PROPERTIES UNLAWFULLY," THE COURT BACKS AWAY FROM THE NOVEMBER CONSENT ORDER WHICH REQUIRED THEIR IMMEDIATE REMOVAL, BY STATING "EITHER THEIR PRESENCE MUST BE LEGALIZED, OR THEY MUST BE REMOVED." PERHAPS THE MOST IMPORTANT DECISION GIVING PRESIDENT MUGABE SPACE FOR COMPROMISE IS THAT THE COURT ISSUED AN INTERDICT (INJUNCTION) PROHIBITING THE GOZ "FROM TAKING ANY FURTHER STEPS IN CONFIDENTIAL PAGE 03 HARARE 07286 02 OF 02 291135Z THE ACQUISITION OF LAND FOR RESETTLEMENT," BUT POSTPONED ITS EFFECT UNTIL JULY 1, 2001 IN ORDER TO ENABLE THE GOZ TO "PRODUCE A WORKABLE PROGRAMME OF LAND REFORM" AND "SATISFY THIS COURT THAT THE RULE OF LAW HAS BEEN RESTORED IN THE COMMERCIAL FARMING AREAS OF ZIMBABWE." ¶5. (C) COMMENT: IT IS CLEAR THAT THE SUPREME COURT FACED A TOUGH BALANCING ACT IN HEARING AND DECIDING ON THE CFU'S BROAD LAWSUIT AGAINST PRESIDENT MUGABE AND THE GOZ. ON THE ONE HAND THE JUSTICES ABHOR THE BREAKDOWN OF LAW AND ORDER ON THE COMMERCIAL FARMS, INCLUDING THE LOSS OF LIFE, THAT MUGABE HAS PROMULGATED SINCE FEBRUARY. ON THE OTHER HAND, THEY RECOGNIZE THE LEGITIMATE NEED FOR LAND REFORM AND THE PASSIONS AND DIVISIONS THAT THIS ISSUE ELICITS AMONG MANY ZIMBABWEANS. BY CLEARLY RULING IN FAVOR OF THE CFU ON SPECIFIC LEGAL ISSUES, WHILE ALSO GIVING MUGABE AND THE GOZ UNTIL JULY OF 2001 TO CLEAN UP THE MESS THEY HAVE CREATED, THE COURT HAS, IN OUR OPINION, SKILLFULLY PROVIDED THE SPACE AND TIME THAT COULD ALLOW MUGABE TO FIND A FACE-SAVING WAY TO DECLARE THAT HE HAS FULFILLED HIS PROMISE OF LAND REFORM, WHILE AT THE SAME TIME FINDING A WAY TO RETURN TO THE PRINCIPLES AGREED TO AT THE 1998 DONORS CONFERENCE AND TO THE RULE OF LAW ON THE COMMERCIAL FARMS. MUGABE HAS NOT RESPONDED DIRECTLY TO THE RULING, ALTHOUGH IN ANTICIPATION OF ITS OUTCOME THE GOZ HAS BEEN WORKING ON A PROGRAM THAT, IT CLAIMS, FOLLOWS THE LAW. THE PLAN IS NOT YET IN THE PUBLIC DOMAIN AND, AT THIS WRITING, NOT BEING IMPLEMENTED IN ANY SYSTEMATIC WAY ON THE GROUND. END COMMENT. CONFIDENTIAL PAGE 04 HARARE 07286 02 OF 02 291135Z IRVING CONFIDENTIAL >