ZIMBABWE SUPREME COURT DEFERS DECISION IN

C O N F I D E N T I A L HARARE 002173 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER LONDON FOR CHARLES GURNEY PARIS FOR BISA WILLIAMS NAIROBI FOR TERRY PFLAUMER E.O. 12958: DECL: 07/13/11 TAGS: PGOV PHUM PINS PINR ZI SUBJECT: ZIMBABWE SUPREME COURT DEFERS DECISION IN TSVANGIRAI INCITEMENT CASE SIPDIS CONFIDENTIAL PAGE 02 HARARE 02173 131041Z REFS: A) HARARE 1536, B) HARARE 767 CLASSIFIED BY CHARGE D'AFFAIRES MARK WOERNER FOR REASONS: 1.5 (B) AND (D). ¶1. (U) THE ZIMBABWE SUPREME COURT DEFERRED INDEFINITELY A DECISION IN OPPOSITION MDC PRESIDENT MORGAN TSVANGIRAI'S CHALLENGE OF SECTIONS OF THE LAW AND ORDER SIPDIS MAINTENANCE ACT (LOMA) AFTER HEARING ARGUMENTS FROM TSVANGIRAI'S AND THE GOVERNMENT'S ATTORNEYS ON JULY 12. SIPDIS THE GOVERNMENT OF ZIMBABWE HAS CHARGED TSVANGIRAI WITH INCITEMENT AND TERRORISM FOR PUBLIC REMARKS IN SEPTEMBER 2000 IN WHICH THE MDC LEADER SAID ZIMBABWEANS WOULD REMOVE PRESIDENT MUGABE BY FORCE IF HE DID NOT "GO PEACEFULLY." AFTER HEARING BOTH SIDES, JUSTICE WILSON SANDURA NOTED THAT THE LOMA WAS PASSED BY THE RHODESIAN REGIME IN AN ATTEMPT TO SUPPRESS DEMOCRACY, ACCORDING TO THE INDEPENDENT "DAILY NEWS." CHRIS ANDERSEN, THE ATTORNEY REPRESENTING TSVANGIRAI, REPORTEDLY STATED THAT IF THE SUPREME COURT RULES THE LOMA SECTIONS CONSTITUTIONAL AND TSVANGIRAI'S CASE GOES TO TRIAL IN THE HIGH COURT, HE WOULD SUBPOENA ATTORNEY-GENERAL ANDREW CHIGOVERA ON HIS SELECTIVE APPLICATION OF THE LAW. ¶2. (C) COMMENT: TSVANGIRAI'S CASE IS THE FIRST MAJOR CONSTITUTIONAL CASE TO COME BEFORE THE SUPREME COURT SINCE CHIEF JUSTICE ANTHONY GUBBAY STEPPED ASIDE IN MARCH. ACTING CHIEF JUSTICE GODFREY CHIDYAUSIKU HAS NOT YET BEEN FORMALLY APPOINTED CHIEF JUSTICE, AND THIS COULD BE A FACTOR IN THE COURT'S DECISION TO DEFER CONFIDENTIAL PAGE 03 HARARE 02173 131041Z JUDGMENT. IT IS UNCLEAR WHETHER CHIDYAUSIKU, AS ACTING CHIEF JUSTICE AND A KNOWN ZANU-PF STOOGE, HAS THE CLOUT TO CONVINCE THE OTHER JUSTICES THAT THE LOMA SECTIONS ARE CONSTITUTIONAL. RECENT CONVERSATIONS WITH THE OTHER JUSTICES TELL US THE REST OF THE BENCH FAVORS STRIKING DOWN THE LOMA SECTIONS IN QUESTION. IT MAY BE CHIDYAUSIKU'S INTENTION TO DELAY A JUDGMENT AS LONG AS POSSIBLE TO KEEP THE CLOUD OF UNCERTAINTY HANGING OVER THE MDC LEADER AND TO GIVE HIMSELF MORE TIME TO FIGURE OUT HOW TO PRODUCE AN OUTCOME FAVORABLE TO THE RULING PARTY. END COMMENT. WOERNER CONFIDENTIAL >