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

>