CRIMINAL CASE AGAINST MDC PRESIDENT TSVANGIRAI REFERRED

C O N F I D E N T I A L HARARE 001536 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER LONDON FOR GURNEY PARIS FOR BISA WILLIAMS NAIROBI FOR PFLAUMER E.O. 12958: DECL. 05/07/11 TAGS: PGOV KDEM PINS ZI SUBJECT: CRIMINAL CASE AGAINST MDC PRESIDENT TSVANGIRAI REFERRED TO SUPREME COURT REF: HARARE 767 CONFIDENTIAL PAGE 02 HARARE 01536 071552Z CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING. REASONS: 1.5 (B) AND (D). ¶1. (U) MOVEMENT FOR DEMOCRATIC CHANGE (MDC) PRESIDENT MORGAN TSVANGIRAI APPEARED BEFORE HIGH COURT JUDGE MOSES CHINHENGO ON SIPDIS MAY 7 TO FACE CHARGES -- UNDER THE COLONIAL-ERA LAW AND ORDER MAINTENANCE ACT -- OF TERRORISM AND SABOTAGE AND OF INCITING PUBLIC VIOLENCE. AS REPORTED REFTEL, THE CHARGES REFER TO TSVANGIRAI'S STATEMENT AT A POLITICAL RALLY LAST SEPTEMBER 30 SIPDIS THAT PRESIDENT MUGABE WOULD BE REMOVED VIOLENTLY IF HE DID NOT CHOOSE TO GO PEACEFULLY. THE STANDING ROOM ONLY CROWD INCLUDED SENIOR MDC OFFICIALS, FOREIGN AND LOCAL JOURNALISTS, EMBASSY'S POLITICAL SECTION CHIEF AND HIS FSN ASSISTANT, AND A RANGE OF OTHER INTERESTED OBSERVERS. DURING MOST OF THE HOUR-LONG HEARING, A GROUP OF APPROXIMATELY 100 MOSTLY YOUNG MEN STOOD ON THE STREET OUTSIDE CHANTING PRO-MDC SLOGANS, UNDER THE WATCHFUL EYE OF A LARGE CONTINGENT OF RIOT POLICE. ¶2. (U) THE HEARING DID NOT DEAL WITH THE SUBSTANCE OF THE CHARGES. RATHER, JUDGE CHINHENGO FOCUSED EXCLUSIVELY ON THE REQUEST BY TSVANGIRAI'S LEAD ATTORNEY, CHRIS ANDERSEN, THAT THE CASE BE REFERRED TO THE SUPREME COURT FOR A DETERMINATION OF WHETHER THE LAW AND ORDER MAINTENANCE ACT (LOMA) IS CONSISTENT WITH ZIMBABWE'S CONSTITUTION. ANDERSEN CONTENDED THAT THE LOMA ARTICLES UNDER WHICH TSVANGIRAI IS CHARGED -- 51 AND 58 -- VIOLATE THE CONSTITUTION BY IGNORING THE GUARANTEE OF FREEDOM OF EXPRESSION, BY PLACING THE ONUS ON THE DEFENDANT TO PROVE HIS INNOCENCE, AND BY DISREGARDING THE CONSTITUTIONAL PROTECTION AGAINST EXCESSIVE PUNISHMENT, AS THE MAXIMUM PENALTY FOR CONVICTION IN THIS CASE IS LIFE IMPRISONMENT. PROSECUTOR CONFIDENTIAL PAGE 03 HARARE 01536 071552Z NATHANIEL SIBANDA CONTENDED THAT THE CASE SHOULD PROCEED TO TRIAL IMMEDIATELY, GIVEN THE VERY SERIOUS CHARGES AND THE NEED FOR GOVERNMENT TO MAKE CLEAR THAT, IN HIS WORDS, CALLING FOR THE VIOLENT OVERTHROW OF A LAWFULLY-ELECTED LEADER IS NOT PERMISSIBLE IN A DEMOCRATIC SOCIETY. ¶3. (U) AFTER DELIBERATING FOR THREE HOURS, JUDGE CHINHENGO ANNOUNCED HIS INTENTION TO REFER THE CASE TO THE SUPREME COURT, WHICH SHOULD, HE SAID, WEIGH IN BECAUSE THE CASE IS A MATTER OF SIGNIFICANT PUBLIC INTEREST. IN ADDITION, CHINHENGO DECLARED, THE NATION'S HIGHEST COURT SHOULD RULE ONCE AND FOR ALL ON THE CONSTITUTIONALITY OF LOMA, A MUCH-CRITICIZED LAW -- DRAFTED, IRONICALLY, BY THE IAN SMITH REGIME -- WHICH GAVE THE COLONIAL GOVERNMENT SWEEPING POWERS IN ITS EFFORT TO SUPPRESS BLACK NATIONALISTS. COMMENT -------------- ¶4. (C) CHINHENGO'S RULING MUST BE CONSIDERED A SMALL BUT IMPORTANT VICTORY FOR TSVANGIRAI, AS THE JUDGE ESSENTIALLY AGREED WITH HIS LEGAL TEAM'S CONTENTION THAT THE BASIS FOR THE CHARGES AGAINST HIM MIGHT BE SUPERSEDED BY THE CONSTITUTION. THIS IS A CRUCIAL TEST CASE, BOTH BECAUSE THE GOVERNMENT REGULARLY USES THE LAW AND ORDER MAINTENANCE ACT TO INTIMIDATE THE POLITICAL OPPOSITION AND BECAUSE MANY OBSERVERS INTERPRET THE CONSTITUTION AS PROHIBITING CONVICTED FELONS FROM RUNNING FOR THE PRESIDENCY, ALTHOUGH THE DOCUMENT IS VAGUE ON THIS POINT. IT IS IMPOSSIBLE TO PREDICT WHAT THE SUPREME COURT WILL DO. IT COULD DECIDE TO REFER THE CASE BACK TO THE HIGH COURT FOR TRIAL. ALTHOUGH THE CHARGES IN THIS CASE ARE CLEARLY POLITICALLY MOTIVATED -- CONFIDENTIAL PAGE 04 HARARE 01536 071552Z TSVANGIRAI WAS NOT ATTEMPTING TO INCITE VIOLENCE OR ENGAGING IN SIPDIS TERRORISM OR SABOTAGE -- THE COURT MIGHT BE RELUCTANT TO STRIKE DOWN BOTH ARTICLES IN FULL, FOR FEAR THAT DOING SO MIGHT REMOVE AN IMPORTANT LEGAL MECHANISM FOR USE AGAINST GENUINE PERPETRATORS OF THESE CRIMES. ON THE OTHER HAND, AN EXAMINATION OF THE INTENTIONS OF THE ORIGINAL DRAFTERS OF THE LOMA MIGHT MAKE THE JUSTICES INCLINED TO OVERTURN THE RELEVANT ARTICLES. THE NATION'S ATTENTION WILL NOW TURN TO THE SUPREME COURT, WHICH WE ANTICIPATE WILL NOT HEAR THE CASE FOR AT LEAST SEVERAL MONTHS. IRVING CONFIDENTIAL >