ZIMBABWE: CHIDYAUSIKU SWORN IN AS ACTING CHIEF

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 001018 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER LONDON FOR GURNEY PARIS FOR WILLIAMS NAIROBI FOR PFLAUMER E.O. 12958: DECL. 03/14/11 TAGS: PGOV PHUM PINR ZI SUBJECT: ZIMBABWE: CHIDYAUSIKU SWORN IN AS ACTING CHIEF JUSTICE CONFIDENTIAL PAGE 02 HARARE 01018 01 OF 02 141608Z REF: A) HARARE 918 B) HARARE 861 C) HARARE 644 CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING. REASONS: 1.5 (B) AND (D). ACTING CHIEF JUSTICE SWORN IN -------------- ¶1. (U) IN A LONG-EXPECTED MOVE, PRESIDENT MUGABE SWORE IN HIGH COURT JUDGE PRESIDENT GODFREY CHIDYAUSIKU AS ACTING CHIEF JUSTICE OF THE ZIMBABWEAN SUPREME COURT ON MARCH 13. CHIDYAUSIKU WILL SERVE IN AN ACTING CAPACITY AT LEAST UNTIL THE FORMAL RETIREMENT OF CHIEF JUSTICE ANTHONY GUBBAY, CURRENTLY ON LEAVE UNTIL JUNE 30. THE CEREMONY AT STATE HOUSE WAS ATTENDED BY GUBBAY'S FOUR COLLEAGUES ON THE BENCH -- BUT NOT GUBBAY HIMSELF -- JUDGES FROM THE HIGH COURT, JUSTICE MINISTER PATRICK CHINAMASA, OTHER CABINET MINISTERS, AND ATTORNEY-GENERAL ANDREW CHIGOVERA. THE EVENT RECEIVED PROMINENT COVERAGE IN THE GOVERNMENT- CONTROLLED PRINT AND BROADCAST MEDIA. COMMENT -------------- ¶2. (C) THE GOVERNMENT'S INTENTION TO REPLACE GUBBAY WITH THE PRO-ZANU-PF CHIDYAUSIKU HAS LONG BEEN AN OPEN SECRET, AND THE CHIEF JUSTICE'S MARCH 2 AGREEMENT WITH THE GOZ CONCERNING HIS EARLY RETIREMENT (REF A) MADE THIS POSSIBLE. TWO PRIMARY QUESTIONS NOW REMAIN UNANSWERED: WILL CHIDYAUSIKU, DURING HIS THREE-AND-A-HALF MONTHS AS ACTING CHIEF JUSTICE, BE ABLE TO HELP DISLODGE HIS FOUR NEW CONFIDENTIAL PAGE 03 HARARE 01018 01 OF 02 141608Z COLLEAGUES, AND WILL HE REPLACE GUBBAY PERMANENTLY WHEN THE CHIEF JUSTICE FORMALLY RETIRES ON JUNE 30? ¶3. (C) THE FIRST QUESTION IS OPEN TO INTERPRETATION, AS NEITHER THE CONSTITUTION NOR HISTORICAL PRECEDENT ADDRESSES THE POWERS EXERCISED BY AN ACTING CHIEF JUSTICE WHILE THE CHIEF JUSTICE IS COMPETENT AND REMAINS IN THE COUNTRY. GUBBAY'S VIEW, AS ELABORATED ON MARCH 10 TO VISITING AF A/PDAS MARK BELLAMY, WAS THAT ONLY GUBBAY -- UNTIL HIS RETIREMENT -- HAS THE AUTHORITY TO RECOMMEND TO THE PRESIDENT CONVOCATION OF A TRIBUNAL TO INVESTIGATE THE EXPULSION OF JUDGES FROM THE BENCH. STERNFORD MOYO, PRESIDENT OF THE LAW SOCIETY OF ZIMBABWE, AGREED WITH GUBBAY, TELLING US ON MARCH 14 THAT, DURING THIS INTERIM PERIOD, CHIDYAUSIKU'S RECOMMENDING ESTABLISHMENT OF A TRIBUNAL ON HIS OWN -- WITHOUT CONSULTING GUBBAY -- WOULD BE UNCONSTITUTIONAL. PRESIDENT MUGABE AND HIS ADVISORS LIKELY WILL TAKE THE OPPOSITE VIEW, AS THEY ARE ANXIOUS TO REPLACE THE COURT'S INDEPENDENT-MINDED JURISTS WITH JUDGES MORE WILLING TO GIVE THE GOVERNMENT A PASS ON THE RULE OF LAW. ¶4. (C) GUBBAY SURMISED TO BELLAMY THAT, SINCE THE TRIBUNAL ROUTE IS SO FRAUGHT WITH CONSTITUTIONAL PITFALLS AND SINCE CHIDYAUSIKU CANNOT ALONE CARRY ZANU-PF'S WATER, MUGABE LIKELY WOULD TAKE THE EASIER -- AND LEGAL -- PATH OF SIMPLY PACKING THE COURT WITH ADDITIONAL, POLITICALLY SYMPATHETIC JUDGES. WE HAVE HEARD THAT JUSTICE MINISTER PATRICK CHINAMASA HAS QUIETLY APPROACHED SEVERAL BLACK LAWYERS ABOUT ACCEPTING JUDICIAL APPOINTMENTS, ALTHOUGH IT IS UNCLEAR FOR WHICH COURT HE WAS RECRUITING. GUBBAY TOLD CONFIDENTIAL PAGE 04 HARARE 01018 01 OF 02 141608Z BELLAMY HE FULLY EXPECTS CHIDYAUSIKU TO BE NAMED AS HIS PERMANENT REPLACEMENT BEGINNING JULY 1. STERNFORD MOYO, HOWEVER, SEPARATELY TOLD THE ACTING AF P/DAS THAT HE AND OTHER MEMBERS OF THE JUDICIAL SERVICES COMMISSION -- CHARGED BY THE CONSTITUTION WITH ADVISING THE PRESIDENT ON JUDICIAL NOMINEES -- WERE WORKING TO TRY TO BLOCK CHIDYAUSIKU'S ASCENSION TO THE APEX OF ZIMBABWE'S JUDICIARY. ¶5. (C) WE SUSPECT THE GOZ IS EAGER TO INSTALL A PLIANT SUPREME COURT AS SOON AS POSSIBLE, AS THE COURT MIGHT SOON CONSIDER SEVERAL CONSTITUTIONAL CASES THAT COULD HAVE A DIRECT IMPACT ON THE RULING PARTY'S POLITICAL PROGRAM. THE HIGH COURT, FOR INSTANCE, IS CURRENTLY HEARING CHALLENGES TO THE RESULTS IN 37 CONSTITUENCIES IN LAST JUNE'S PARLIAMENTARY ELECTIONS. A DECISION BY THE HIGH COURT TO INVALIDATE THE RESULTS IN ANY OF THOSE CONSTITUENCIES -- AND TO CALL FOR NEW ELECTIONS TO FILL THE SEATS -- WOULD WITHOUT DOUBT BE APPEALED TO THE SUPREME COURT. IN ADDITION, THE MDC PLANS TO CHALLENGE THE CONSTITUTIONALITY OF THE REPRESSIVE COLONIAL-ERA LAW AND ORDER MAINTENANCE ACT (LOMA),WHICH THE GOZ HAS USED TO CRACK DOWN ON LEADING OPPOSITION FIGURES, INCLUDING MDC PRESIDENT MORGAN TSVANGIRAI AND HIS VICE-PRESIDENT GIBSON SIBANDA. CHIEF SIPDIS JUSTICE GUBBAY TOLD ACTING AF P/DAS BELLAMY THAT THE COURT CONFIDENTIAL CONFIDENTIAL PTQ9427 PAGE 01 HARARE 01018 02 OF 02 141608Z ACTION AF-00 INFO LOG-00 NP-00 AID-00 AMAD-00 ACQ-00 CIAE-00 DINT-00 DODE-00 DOTE-00 SRPP-00 DS-00 EB-00 EUR-00 FAAE-00 FBIE-00 VC-00 H-01 TEDE-00 INR-00 IO-00 L-00 VCE-00 AC-01 DCP-01 NSAE-00 OIC-02 OMB-01 OPIC-01 PA-00 PM-00 PRS-00 ACE-00 P-00 SP-00 STR-00 TRSE-00 USIE-00 PMB-00 DSCC-00 PRM-01 DRL-02 G-00 NFAT-00 SAS-00 SWCI-00 /010W -------------- D19B5B 141608Z /38 P 141605Z MAR 01 FM AMEMBASSY HARARE TO SECSTATE WASHDC PRIORITY 8425 INFO NSC WASHDC PRIORITY SOUTHERN AFRICAN DEVELOPMENT COMMUNITY AMEMBASSY NAIROBI C O N F I D E N T I A L SECTION 02 OF 02 HARARE 001018 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER LONDON FOR GURNEY PARIS FOR WILLIAMS NAIROBI FOR PFLAUMER E.O. 12958: DECL. 03/14/11 TAGS: PGOV PHUM PINR ZI SUBJECT: ZIMBABWE: CHIDYAUSIKU SWORN IN AS ACTING CHIEF JUSTICE CONFIDENTIAL PAGE 02 HARARE 01018 02 OF 02 141608Z WAS UNLIKELY TO ISSUE ANY MORE RULINGS ON THE GOVERNMENT'S FAST TRACK RESETTLEMENT PROGRAM, AS HE AND HIS COLLEAGUES HAD MADE THEIR POSITION ON THE ILLEGALITY OF THAT EXERCISE ABSOLUTELY CLEAR. ¶6. (U) BIOGRAPHIC INFORMATION ON CHIDYAUSIKU WILL FOLLOW SEPTEL. IRVING CONFIDENTIAL >