MDC LOSES FIRST ELECTORAL CHALLENGE

C O N F I D E N T I A L HARARE 001123 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER LONDON FOR GURNEY PARIS FOR BISA WILLIAMS NAIROBI FOR PFLAUMER E.O. 12958: DECL. 03/21/11 TAGS: PHUM PGOV KDEM PINS ZI SUBJECT: MDC LOSES FIRST ELECTORAL CHALLENGE CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING. REASONS: 1.5 CONFIDENTIAL PAGE 02 HARARE 01123 261445Z (B) AND (D). ¶1. (U) ON MARCH 23, HIGH COURT JUDGE VERNANDA ZIYAMBI DISMISSED A PETITION BY THE OPPOSITION MOVEMENT FOR DEMOCRATIC CHANGE (MDC) SEEKING NULLIFICATION OF ZANU-PF'S PARLIAMENTARY VICTORY LAST JUNE IN THE ZVISHAVANE CONSTITUENCY. ZIYAMBI'S JUDGMENT WAS THE FIRST TO BE HANDED DOWN BY THE HIGH COURT SINCE IT BEGAN HEARING LAST MONTH LEGAL CHALLENGES TO THE RESULTS IN 37 CONSTITUENCIES. IN ISSUING HER JUDGMENT ORALLY (THE WRITTEN VERSION IS LIKELY TO FOLLOW SOMETIME THIS WEEK),ZIYAMBI ACKNOWLEDGED THAT POLITICALLY-MOTIVATED VIOLENCE AND INTIMIDATION HAD OCCURRED IN ZVISHAVANE PRIOR TO THE ELECTION, AND ASSERTED THAT BOTH SIDES HAD BEEN RESPONSIBLE. HOWEVER, SHE RULED AGAINST THE PLAINTIFFS FOR THREE REASONS: THEY HAD FAILED TO LINK THE ZANU-PF CANDIDATE -- PEARSON MBALEKWA -- TO THE VIOLENCE; THE VIOLENCE AND INTIMIDATION WERE SPORADIC AND NOT "OF A GENERAL NATURE"; AND THE WITNESSES WERE UNRELIABLE. MDC'S REACTION -------------- ¶2. (C) IN A MARCH 26 CONVERSATION WITH POLITICAL SECTION CHIEF, MDC MP -- AND SHADOW MINISTER OF JUSTICE -- DAVID COLTART CRITICIZED THE HIGH COURT DECISION. ACCORDING TO COLTART, THE PRIMARY FACTOR IN ZIYAMBI'S DECISION HAD BEEN THAT THE ZANU-PF CANDIDATE COULD NOT BE DIRECTLY LINKED TO THE VIOLENCE AND INTIMIDATION PRECEDING THE ELECTION IN ZVINAVASHE. THAT FINDING, COLTART INSISTED, REVEALED A MISINTERPRETATION OF THE ELECTORAL ACT, WHICH REQUIRED CONFIDENTIAL PAGE 03 HARARE 01123 261445Z PROOF OF SUCH A LINKAGE ONLY IF THE PLAINTIFF WAS SEEKING THE BANNING OF THE INDIVIDUAL FROM ELECTORAL POLITICS. IN THIS PARTICULAR CASE, HOWEVER, THE MDC HAD SOUGHT ONLY TO HAVE THE ELECTION RESULT OVERTURNED. COLTART ALSO SCOFFED AT ZIYAMBI'S CONTENTION THAT INCIDENTS OF VIOLENCE HAD BEEN SPORADIC, NOT GENERAL, EMPHASIZING THAT THE ATMOSPHERE IN ZVISHAVANE WAS "SO BAD THAT IT SUBVERTED THE ENTIRE ELECTORAL PROCESS." COLTART SAID THE MDC WOULD APPEAL TO THE SUPREME COURT. THE MDC MP EXPRESSED A BROADER CONCERN THAT NONE OF THE THREE JUDGES HEARING THE ELECTORAL CHALLENGES -- ZIYAMBI, PADDINGTON GARWE, AND JAMES DEVITTIE -- APPEARED INCLINED TO ACCEPT THE OVERWHELMING EVIDENCE PRESENTED IN THE SEVEN CASES HEARD SO FAR. IN ONE INSTANCE, JUDGE DEVITTIE HAD REFUSED EVEN TO CONSIDER DETAILED ASSESSMENTS OF THE ELECTION BY EU AND COMMONWEALTH OBSERVERS, COMPLAINING IN OPEN COURT THAT HE DID NOT HAVE THE TIME TO READ SUCH LENGTHY DOCUMENTS. COMMENT -------------- ¶3. (C) THE MDC IS CLEARLY DISAPPOINTED WITH JUDGE ZIYAMBI'S DECISION, BUT, FRANKLY, WE WERE NOT SURPRISED AT THE RULING. WITNESSES CAN MAKE OR BREAK A CASE, AND THE WITNESSES IN THE ZVISHAVANE SUIT WERE NOT PARTICULARLY CREDIBLE, WERE CLEARLY COACHED ON HOW TO RESPOND TO CERTAIN QUESTIONS, AND WERE OFTEN SURLY AND DISRESPECTFUL TOWARD THE JUDGE. DAVID COLTART'S COMPLAINT NOTWITHSTANDING, REASONABLE PEOPLE CAN DISAGREE IN THEIR INTERPRETATIONS OF THE FUZZILY-WRITTEN ELECTORAL ACT. ALTHOUGH ZIYAMBI IS GENERALLY VIEWED AS SYMPATHETIC TO ZANU-PF, HER CONFIDENTIAL PAGE 04 HARARE 01123 261445Z INTERPRETATION IN THIS CASE APPEARS TO OUR LAYMAN'S EYES AT LEAST TO BE LEGALLY DEFENSIBLE. THE ZVISHAVANE JUDGMENT SUGGESTS THAT ZIYAMBI'S PREDOMINANT CONSIDERATIONS IN THE REMAINING CASES WILL BE WHETHER THE ZANU-PF CANDIDATE CAN BE LINKED TO INCIDENTS OF FRAUD, VIOLENCE, OR INTIMIDATION AND WHETHER SUCH ABUSES AFFECTED SIGNIFICANT PORTIONS OF THE POPULATION. JUDGING FROM THEIR QUESTIONS IN THE CASES BEFORE THEM, JUDGES GARWE AND DEVITTIE ARE LIKELY TO TAKE THE SAME APPROACH. ADDITIONAL JUDGMENTS COULD BE FORTHCOMING SOON, AS SIX OTHER CASES HAVE NOW BEEN COMPLETED. IRVING CONFIDENTIAL >