ZIMBABWE LEGAL COMMUNITY IS EXTREMELY CONCERNED

C O N F I D E N T I A L SECTION 01 OF 03 HARARE 001026 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JFRAZER LONDON FOR CGURNEY PARIS FOR BWILLIAMS NAIROBI FOR PFLAUMER PASS USAID FOR AFR/SD - DWELLER, AFR/SA - CPALMA, NNEWMAN, AA/AFR - VDICKSON-HORTON E.O. 12958: DECL: 03/15/11 TAGS: PHUM PGOV KJUS PINR ZI SUBJECT: ZIMBABWE LEGAL COMMUNITY IS EXTREMELY CONCERNED CONFIDENTIAL PAGE 02 HARARE 01026 01 OF 03 151129Z THAT MUGABE IS SUBVERTING JUDICIAL INDEPENDENCE CLASSIFIED BY CHARGE D' AFFAIRES EARL M. IRVING FOR REASONS 1.5 (B/D). -------------- SUMMARY -------------- ¶1. (C) ON MARCH 9, ACTING PRINCIPAL DEPUTY ASSISTANT SECRETARY (PDAS) MARK BELLAMY, CHARGE EARL IRVING, AND SIPDIS ECONOFF (NOTETAKER) MET WITH STERNFORD MOYO, PRESIDENT OF THE LAW SOCIETY OF ZIMBABWE AND A MEMBER OF THE JUDICIAL SERVICES COMMISSION, AND BEATRICE MTETWA, THE ZIMBABWEAN LAWYER WHO IS COORDINATING THE OPPOSITION MOVEMENT FOR DEMOCRATIC CHANGE'S (MDC) LEGAL CHALLENGES TO LAST JUNE'S PARLIAMENTARY ELECTIONS, TO DISCUSS THE STATE OF THE JUDICIARY IN ZIMBABWE. BELLAMY EXPRESSED THE USG'S CONCERN THAT THE GOVERNMENT OF ZIMBABWE (GOZ) IS SELECTIVELY APPLYING THE RULE OF LAW, AND IS THREATENING THE INDEPENDENCE OF THE JUDICIARY. HE ADDED THAT BECAUSE OF THE POLITICAL AND ECONOMIC CRISES AFFECTING ZIMBABWE, AND THE GOZ'S REACTIONS TO THESE CRISES, THE USG WAS RE-EVALUATING ITS POLICIES TOWARDS THE GOZ. MOYO AND MTETWA AGREED THAT THE SITUATION IN ZIMBABWE IS DETERIORATING, AND THAT PRESIDENT MUGABE IS ACTIVELY UNDERMINING THE INDEPENDENCE OF THE JUDICIARY. MOYO PINPOINTED THE THREAT TO THE JUDICIARY'S INDEPENDENCE TO HAVE BEGUN IN EARNEST IN FEBRUARY 2000 AFTER A MAJORITY OF ZIMBABWEAN VOTERS REJECTED THE DRAFT CONSTITUTION SUPPORTED BY MUGABE. WITH THE FINAL CONFIDENTIAL PAGE 03 HARARE 01026 01 OF 03 151129Z AGREEMENT ON THE RESIGNATION OF THE CHIEF JUSTICE OF THE SUPREME COURT ON MARCH 2, MOYO FEARS THAT THE CONTINUED INDEPENDENCE OF THE JUDICIARY IS EXTREMELY PRECARIOUS. THE LAW SOCIETY PRESIDENT INDICATED THAT THE MAJORITY OF THE MEMBERS OF THE ZIMBABWE LEGAL PROFESSION OPPOSE THESE DEVELOPMENTS. MOYO IS ALSO COORDINATING EFFORTS TO DETERMINE IF THERE IS A WAY TO BLOCK MUGABE'S APPOINTMENT OF GODFREY CHIDYAUSIKU, THE JUDGE PRESIDENT OF THE HIGH COURT, AS THE NEXT CHIEF JUSTICE OF THE SUPREME COURT. IN A SEPARATE MEETING WITH BELLAMY ON MARCH 10, CHIEF JUSTICE ANTHONY GUBBAY SAID THAT HE NOW BELIEVES MUGABE IS DETERMINED TO ELIMINATE THE INDEPENDENCE OF THE JUDICIARY, AND THAT HE WILL NOT GIVE UP POWER, EVEN IF HE LOSES THE NEXT PRESIDENTIAL ELECTION. END SUMMARY. -------------- BELLAMY EXPRESSES USG CONCERNS -------------- ¶2. (C) BELLAMY OPENED THE MEETING BY EXPRESSING THE HEIGHTENED USG CONCERN WITH DEVELOPMENTS THAT APPEAR TO THREATEN ZIMBABWE'S DEMOCRATIC INSTITUTIONS. BELLAMY SPECIFICALLY MENTIONED THE BOMBING OF "THE DAILY NEWS" PRINTING PRESS, THE FORCED RESIGNATION OF THE CHIEF JUSTICE OF THE SUPREME COURT, ANTHONY GUBBAY, AND THE EXPULSION OF TWO FOREIGN JOURNALISTS, AS PARTICULARLY ALARMING DEVELOPMENTS. HE STATED THAT WASHINGTON WORRIED THAT THE POLITICAL SITUATION IN ZIMBABWE WAS DETERIORATING RAPIDLY, AND SPECIFICALLY MENTIONED THE USG CONCERN THAT THE INDEPENDENCE OF THE JUDICIARY CONFIDENTIAL PAGE 04 HARARE 01026 01 OF 03 151129Z APPEARS THREATENED. HE ASKED MOYO AND MTETWA WHAT THEY FELT WOULD BE PROPER RESPONSES BY THE USG TO THIS SITUATION. -------------- A LONG TRADITION OF JUDICIAL INDEPENDENCE -------------- ¶3. (C) MOYO LAID OUT THE HISTORY OF THE JUDICIAL BRANCH IN ZIMBABWE GOING BACK TO THE COLONIAL PERIOD. HE STATED THAT EXCEPT FOR SPECIFIC CASES DURING THE COLONIAL, UNILATERAL DECLARATION OF INDEPENDENCE, AND POST-INDEPENDENCE PERIODS, THE JUDICIARY HAS ALWAYS MAINTAINED ITS INDEPENDENCE FROM THE EXECUTIVE AND LEGISLATIVE BRANCHES OF THE GOZ. AT THE TIME OF ZIMBABWE'S INDEPENDENCE IN 1980, THE JUDICIARY DECIDED THAT JUDGES COULD SERVE THE NEW GOVERNMENT REGARDLESS OF WHO WAS IN POWER. FOLLOWING THE 1980 ELECTIONS, THERE WAS A DISAGREEMENT BETWEEN THE NEW MUGABE GOVERNMENT AND THE JUDICIARY OVER WHOM WOULD BECOME THE CHIEF JUSTICE. THE JUDICIARY WANTED TO FOLLOW THE RULE THAT THE SENIOR APPELLATE JUDGE WOULD BECOME CHIEF JUSTICE. THE THEN PRIME MINISTER MUGABE, ON THE OTHER HAND, WANTED TO MAKE A POLITICAL APPOINTEE CHIEF JUSTICE. IN THE END, A COMPROMISE WAS REACHED WITH THE APPOINTMENT OF A JUSTICE CONFIDENTIAL CONFIDENTIAL PTQ2112 PAGE 01 HARARE 01026 02 OF 03 151130Z 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 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 BBG-00 R-00 PMB-00 DSCC-00 PRM-01 DRL-02 G-00 NFAT-00 SAS-00 SWCI-00 /009W -------------- D20CE5 151130Z /38 R 151126Z MAR 01 FM AMEMBASSY HARARE TO SECSTATE WASHDC 8434 INFO NSC WASHDC SOUTHERN AFRICAN DEVELOPMENT COMMUNITY AMEMBASSY NAIROBI C O N F I D E N T I A L SECTION 02 OF 03 HARARE 001026 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JFRAZER LONDON FOR CGURNEY PARIS FOR BWILLIAMS NAIROBI FOR PFLAUMER PASS USAID FOR AFR/SD - DWELLER, AFR/SA - CPALMA, NNEWMAN, AA/AFR - VDICKSON-HORTON E.O. 12958: DECL: 03/15/11 TAGS: PHUM PGOV KJUS PINR ZI SUBJECT: ZIMBABWE LEGAL COMMUNITY IS EXTREMELY CONCERNED CONFIDENTIAL PAGE 02 HARARE 01026 02 OF 03 151130Z THAT MUGABE IS SUBVERTING JUDICIAL INDEPENDENCE WHO HAD RESIGNED FROM THE RHODESIAN SUPREME COURT IN 1968, FOLLOWING DISAGREEMENTS WITH THE UDI GOVERNMENT OVER LEGAL RULINGS, AND HAD RETURNED TO THE UNITED KINGDOM. MOYO CONCLUDED THAT UP UNTIL A YEAR AGO, WITH A FEW NOTABLE EXCEPTIONS RELATED TO COURT DECISIONS DURING THE 1983-87 REPRESSION OF THE NDEBELE IN SOUTHERN ZIMBABWE, THE GOZ HAD LARGELY RESPECTED THE JUDICIARY'S INDEPENDENCE AND HAD ENFORCED COURT RULINGS. -------------- THE ASSAULT ON THE JUDICIARY BEGINS -------------- ¶4. (C) ACCORDING TO MOYO, THE GOZ ASSAULT ON THE JUDICIARY BEGAN IN EARNEST FOLLOWING THE VOTER REJECTION OF THE DRAFT CONSTITUTION IN FEBRUARY 2000. MOYO BELIEVES THAT MUGABE AND THE GOZ PANICKED FOLLOWING THIS VOTE, AND BEGAN TO SEE ENEMIES IN EVERY CORNER OF THE COUNTRY. WHEN THE GOZ-SPONSORED FARM INVASIONS BY "WAR VETS" AND SQUATTERS BEGAN IN EARNEST FOLLOWING THE "NO" VOTE ON THE CONSTITUTION, COURT RULINGS AGAINST THESE INVASIONS PUT THE JUDICIARY ON A COLLISION COURSE WITH MUGABE AND THE EXECUTIVE BRANCH OF THE GOZ. SINCE LAST FEBRUARY THERE HAVE BEEN A NUMBER OF SUPREME COURT AND HIGH COURT RULINGS THAT HAVE ORDERED THE GOZ TO EVICT THE "WAR VETS" AND SQUATTERS FROM OCCUPIED FARMS, AS WELL AS TO FOLLOW EXISTING LAW IN UNDERTAKING LAND REFORM AND RESETTLEMENT. MOYO ADDED THAT OVER THE PAST YEAR THE GOZ HAS (IN CONJUNCTION WITH THE COMMERCIAL CONFIDENTIAL PAGE 03 HARARE 01026 02 OF 03 151130Z FARMERS UNION) AGREED TO TWO SUPREME CONSENT ORDERS (ONE IN MARCH 2000, THE OTHER IN NOVEMBER 2000) THAT STATED THAT THE GOZ WAS NOT FOLLOWING ITS OWN LAWS IN PURSUING THE "FAST-TRACK" RESETTLEMENT PROGRAM, AND THAT IT SHOULD BEGIN TO DO SO BY REMOVING THE OCCUPIERS. FOLLOWING THE NOVEMBER CONSENT ORDER, "WAR VETS" BEGAN TO THREATEN THE SUPREME COURT JUDGES, AND THE GOZ BEGAN A FULL-COURT PROPAGANDA CAMPAIGN THAT CLAIMED THE JUDICIARY WANTED TO BRING BACK "WHITE SETTLER" RULE AND AGAIN MAKE ZIMBABWE A COLONY OF BRITAIN. THIS CAMPAIGN RESULTED IN CHIEF JUSTICE GUBBAY REQUESTING A MEETING WITH ACTING PRESIDENT SIMON MUZENDA (MUGABE WAS OUT OF THE COUNTRY). AT THIS MEETING, GUBBAY REQUESTED THAT THE GOZ OFFER ADDITIONAL PROTECTION TO THE JUSTICES, AND IF THEY WOULD NOT, GUBBAY STATED THAT HE MIGHT HAVE TO RESIGN. MOYO OPINED THAT THE GOZ SEIZED ON THIS STATEMENT, AND FORCED GUBBAY TO TENDER HIS RESIGNATION TWO DAYS LATER. -------------- APPOINTING A RUBBER STAMP CHIEF JUSTICE -------------- ¶5. (C) AFTER CONSIDERABLE WRANGLING, A FINAL AGREEMENT WAS REACHED ON MARCH 2 BETWEEN THE GOZ AND GUBBAY, WHEREBY THE LATTER WOULD GO ON LEAVE FROM THE BEGINNING OF MARCH UNTIL THE END OF JUNE. PRESIDENT MUGABE WOULD, AS A RESULT, BE FREE TO APPOINT AN ACTING CHIEF JUSTICE, BUT COULD NOT APPOINT A NEW CHIEF JUSTICE UNTIL JULY 1. MUGABE QUICKLY NOMINATED THE JUDGE PRESIDENT OF THE HIGH COURT, GODFREY CHIDYAUSIKU, AS THE ACTING CHIEF JUSTICE CONFIDENTIAL PAGE 04 HARARE 01026 02 OF 03 151130Z ON MARCH 9, AND HE WAS SWORN IN ON MARCH 13. CHIDYAUSIKU HAD LONG BEEN RUMORED TO BE MUGABE'S CHOICE FOR CHIEF JUSTICE DUE TO HIS LONG HISTORY AS A LOYAL SUPPORTER OF ZANU-PF. (NOTE: CHIDYAUSIKU HEADED THE CONSTITUTIONAL COMMISSION THAT PREPARED THE DRAFT CONSTITUTION THAT WAS REJECTED IN THE FEBRUARY 2000 REFERENDUM. ZIMBABWEAN CIVIL SOCIETY GROUPS HAD PUBLICLY PROCLAIMED THAT THE CONSTITUTIONAL REFORM PROCESS HAD BEEN HIJACKED BY THE GOZ AND THE FINAL VERSION DID NOT REPRESENT THE VIEWS OF ZIMBABWEAN SOCIETY. END NOTE.) MOYO ADMITTED THAT MUGABE HAD THE CONSTITUTIONAL AUTHORITY TO APPOINT WHOMEVER HE CHOSE AS ACTING CHIEF JUSTICE. HOWEVER, HE STATED THAT THE ISSUE IS NOT CLEAR FOR THE APPOINTMENT OF A CHIEF JUSTICE. ACCORDING TO MOYO, THE JUDICIAL SERVICES COMMISSION (JSC),OF WHICH HE IS A MEMBER, HAS A KEY ROLE IN ADVISING THE PRESIDENT ON THE APPOINTMENT OF A CHIEF JUSTICE. HE MADE CLEAR THAT MEMBERS OF THE JSC WOULD LIKE TO FIND A WAY TO BLOCK CHIDYAUSIKU'S APPOINTMENT AS CHIEF JUSTICE. MOYO IS CONCERNED THAT IF CHIDYAUSIKU IS APPOINTED CHIEF JUSTICE HE WILL BE IN A POSITION TO HELP MUGABE REMOVE OTHER SUPREME COURT AND HIGH COURT JUSTICES, AND REPLACE THEM WITH JUDGES WHO WILL BE COMPLIANT WITH MUGABE AND ZANU-PF. THIS WOULD, ACCORDING TO MOYO, MARK THE END OF ANY HOPE FOR A TRULY CONFIDENTIAL CONFIDENTIAL PTQ2113 PAGE 01 HARARE 01026 03 OF 03 151130Z 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 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 BBG-00 R-00 PMB-00 DSCC-00 PRM-01 DRL-02 G-00 NFAT-00 SAS-00 SWCI-00 /009W -------------- D20CEF 151130Z /38 R 151126Z MAR 01 FM AMEMBASSY HARARE TO SECSTATE WASHDC 8435 INFO NSC WASHDC SOUTHERN AFRICAN DEVELOPMENT COMMUNITY AMEMBASSY NAIROBI C O N F I D E N T I A L SECTION 03 OF 03 HARARE 001026 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JFRAZER LONDON FOR CGURNEY PARIS FOR BWILLIAMS NAIROBI FOR PFLAUMER PASS USAID FOR AFR/SD - DWELLER, AFR/SA - CPALMA, NNEWMAN, AA/AFR - VDICKSON-HORTON E.O. 12958: DECL: 03/15/11 TAGS: PHUM PGOV KJUS PINR ZI SUBJECT: ZIMBABWE LEGAL COMMUNITY IS EXTREMELY CONCERNED CONFIDENTIAL PAGE 02 HARARE 01026 03 OF 03 151130Z THAT MUGABE IS SUBVERTING JUDICIAL INDEPENDENCE DEMOCRATIC TRANSITION IN ZIMBABWE. MOYO STATED THAT CIVIL SOCIETY GROUPS ONLY HAVE THE INDEPENDENT JUDICIARY TO TURN TO IN TRYING TO RESTRAIN THE AUTHORITARIAN PRACTICES OF MUGABE AND ZANU-PF. ¶6. (C) FOR THIS REASON, MOYO REQUESTED OUR ASSISTANCE IN RESEARCHING HOW THE CHIEF JUSTICE OF THE U.S. SUPREME COURT, AND THOSE IN COMMONWEALTH COUNTRIES, ARE APPOINTED, TO INCLUDE GROUNDS UPON WHICH APPOINTMENTS ARE DENIED (E.G. EXTREME POLITICAL VIEWS, CRIMINAL CONDUCT, IMMORAL BEHAVIOR, ETC.) -------------- CHIEF JUSTICE GUBBAY PESSIMISTIC -------------- ¶7. (C) BELLAMY AND CHARGE CALLED ON CHIEF JUSTICE GUBBAY AT HIS HOME MARCH 10. THE SOFT-SPOKEN JUDGE RECOUNTED HOW WAR VETERANS HAD INVADED THE SUPREME COURT AFTER ITS DECISIONS ON THE "FAST-TRACK" PROGRAM AND THE FARM INVASIONS. GUBBAY POINTED OUT THAT ALTHOUGH THE DECISIONS HAD BEEN LABELED "RACIST" BY THE GOZ, THEY HAD ACTUALLY BEEN MADE BY NON-WHITE JUDGES. GUBBAY ADDED THAT WHITE JUDGES ARE A MINORITY OF THE MEMBERS OF BOTH THE HIGH AND SUPREME COURTS, BUT THE GOZ DOES NOT LIKE TO ACKNOWLEDGE THIS. GUBBAY CONFIRMED THAT VICE PRESIDENT MUZENDA HAD REFUSED TO GUARANTEE THE SAFETY OF JUSTICES FROM THE "WAR VETS". MINISTER OF JUSTICE PATRICK CHINAMASA TOLD GUBBAY THAT IT WAS "NORMAL" FOR CONFIDENTIAL PAGE 03 HARARE 01026 03 OF 03 151130Z "WAR VETS" TO REACT BADLY TO THE COURT'S DECISIONS, AND THAT THE JUSTICES SHOULD HAVE EXPECTED THIS. GUBBAY SAID HE HAD DESPAIRED AT HIS INABILITY TO REASON WITH MUZENDA AND CHINAMASA. GUBBAY INDICATED THAT THE ZIMBABWE LEGAL COMMUNITY DID NOT RATE HIGHLY JUDGE PRESIDENT CHIDYAUSIKU IN TERMS OF EITHER EXPERTISE OR IMPARTIALITY. HE ADDED THAT THE REMAINING FOUR SUPREME COURT JUSTICES - ALL OF WHOM GUBBAY PRAISED FOR THEIR PROFESSIONALISM AND ETHICS - WOULD ACT AS A BRAKE ON THE NEW CHIEF JUSTICE FOR AT LEAST A WHILE. GUBBAY REVEALED THAT THERE IS NO GOOD LEGAL WAY FOR PRESIDENT MUGABE TO OUST THE REMAINING JUSTICES AND THAT HE WOULD MOST LIKELY INSTEAD ATTEMPT TO PACK THE COURT WITH ZANU-PF LOYALISTS. (NOTE: THE ZIMBABWE CONSTITUTION DOES NOT SET A LIMIT ON THE NUMBER OF SUPREME COURT JUSTICES. END NOTE.) THE CHIEF JUSTICE IS CONVINCED THAT MUGABE WILL NOT RELINQUISH POWER EVEN IF HE LOSES THE NEXT PRESIDENTIAL ELECTION. HE ADDED THAT HE IS DEEPLY SADDENED THAT ZIMBABWE'S HIGHEST COURTS, WHICH HAD FOR TWENTY YEARS OPERATED AS A STRONG CONSTITUTIONAL CHECK AGAINST ABUSES OF EXECUTIVE POWER, APPEARED TO BE NEARING AN END AS AN INDEPENDENT BRANCH OF GOVERNMENT. -------------- COMMENT: -------------- ¶8. (C) WE SHARE GUBBAY'S AND MOYO'S CONCERN FOR THE CONTINUED INDEPENDENCE OF THE ZIMBABWE JUDICIARY. THERE IS A CONCERTED EFFORT BY MUGABE AND HIS SYCOPHANTS IN THE EXECUTIVE AND LEGISLATIVE BRANCHES OF THE GOZ TO CONFIDENTIAL PAGE 04 HARARE 01026 03 OF 03 151130Z POLITICIZE BOTH THE HIGH AND SUPREME COURTS. THIS CAMPAIGN IS REFLECTED IN THE ZANU-PF-CONTROLLED PARLIAMENT VOTING IN FAVOR OF A MOTION OF NO CONFIDENCE IN THE JUDICIARY ON FEBRUARY 28. THE GOZ AGREED IN ITS MARCH 2 SETTLEMENT WITH GUBBAY TO REFRAIN FROM ATTACKING JUSTICES THROUGH GOZ-CONTROLLED MEDIA (WE DOUBT THAT THE GOZ WILL HONOR THIS AGREEMENT.) FROM OUR PERSPECTIVE, THE USG CAN PROVIDE THE GREATEST ASSISTANCE TO THE SUPPORTERS OF JUDICIAL INDEPENDENCE IN ZIMBABWE BY CONTINUING TO PUBLICLY STATE, IN UNEQUIVOCAL TERMS, OUR POSITION ON THE IMPORTANCE OF JUDICIAL INDEPENDENCE FOR THE FUTURE OF DEMOCRACY IN ZIMBABWE, AND THAT EFFORTS AT DESTROYING THE INDEPENDENCE OF THE JUDICIARY WILL HAVE REPERCUSSIONS IN BILATERAL RELATIONS. WE EXPLAINED TO MOYO THAT THE APPOINTMENT PROCESS FOR A CHIEF JUSTICE OF THE US SUPREME COURT IS NOT DIRECTLY APPLICABLE TO THAT OF A CHIEF JUSTICE OF THE ZIMBABWE SUPREME COURT. WE ENCOURAGED HIM TO CONTACT THE HIGH COMMISSIONS OF OTHER COMMONWEALTH COUNTRIES IN HARARE TO PURSUE THIS LINE OF INQUIRY. END COMMENT. ¶9. (U) ACTING PDAS BELLAMY CLEARED THIS MESSAGE. IRVING CONFIDENTIAL >