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
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(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
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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
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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

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