CHIEF JUSTICE GUBBAY PUBLICLY REPRIMANDS HIGH

C O N F I D E N T I A L HARARE 000354

SIPDIS

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E.O. 12958: DECL 01/18/11
TAGS: PGOV PHUM PINS ZI
SUBJECT: CHIEF JUSTICE GUBBAY PUBLICLY REPRIMANDS HIGH
COURT JUDGE PRESIDENT CHIDYAUSIKU


CLASSIFIED BY CHARGE D' AFFAIRES EARL M. IRVING FOR
REASONS 1.5 (B/D).

REFS: A. HARARE 00246, B. HARARE 00106


1. (U) ON JANUARY 17, THE CHIEF JUSTICE OF THE SUPREME
COURT, ANTHONY GUBBAY, PUBLICLY REPRIMANDED THE JUDGE
PRESIDENT OF THE HIGH COURT, GODFREY CHIDYAUSIKU, FOR
ATTACKING GUBBAY HIMSELF, THE SUPREME COURT, AND OTHER
JUDGES OF THE HIGH COURT FOR RULING AGAINST THE
GOVERNMENT OF ZIMBABWE (GOZ) ON THE ISSUE OF LAND.
CHIDYAUSIKU ASSAILED THE SUPREME COURT CHIEF JUSTICE
WHILE SPEAKING AT THE OPENING OF THE JUDICIAL YEAR IN
THE BULAWAYO HIGH COURT ON JANUARY 8 (REF A). GUBBAY
REJECTED CHIDYAUSIKU'S CONTENTION THAT THE COURTS HAVE
NO BUSINESS RULING ON THE GOZ'S "FAST-TRACK"
RESETTLEMENT PLAN BECAUSE IT IS A POLITICAL, NOT A
LEGAL, ISSUE. "SUCH AN ATTITUDE," GUBBAY SAID,
"CONFLICTS WITH THE RULE OF LAW AND HIS OATH OF OFFICE."
GUBBAY ALSO DISMISSED A CONCERN EXPRESSED BY CHIDYAUSIKU
THAT THE SUPREME COURT HAD OVERTURNED ONE OF HIS
DECISIONS, POINTING OUT SIMPLY THAT EVEN A LAYMAN
UNDERSTANDS THAT THE SUPREME COURT HAS THE AUTHORITY TO
REVERSE THE RULINGS OF HIGH COURT JUDGES.


2. (U) GUBBAY'S STATEMENT FINISHED WITH THE DECLARATION
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THAT "AFTER ANXIOUS CONSIDERATION, I AM OF THE VIEW THAT
THE JUDGE PRESIDENT'S CONDUCT DOES NOT YET
WARRANT...ADVICE TO HIS EXCELLENCY THE PRESIDENT, THAT
HIS REMOVAL OUGHT TO BE INVESTIGATED. NONETHELESS IT IS
DESERVING OF A SEVERE REPRIMAND." GUBBAY ADDED FURTHER
THAT "IN THE TENSE SITUATION PREVAILING IN ZIMBABWE AT
PRESENT, THE JUDGE PRESIDENT SHOULD AVOID MAKING
INFLAMMATORY STATEMENTS." HE CONCLUDED WITH THE COMMENT
THAT THE SUPREME COURT BENCH FULLY SUPPORTED THE
ISSUANCE OF HIS STATEMENT.


3. (C) COMMENT: THIS WAS AN UNUSUAL PUBLIC EXCHANGE OF
RHETORICAL VOLLEYS BETWEEN TWO SENIOR MEMBERS OF THE
BENCH. GUBBAY'S COMMENTS REFLECT ANGER WITH
CHIDYAUSIKU'S OUTRAGEOUS ATTACK ON THE LEGITIMATE ROLE
OF THE COURTS, AND ARE, MORE GENERALLY, A RESPONSE TO
THE INCREASING EXECUTIVE BRANCH CRITICISM OF THE
JUDICIARY AND ITS INDEPENDENCE. CHIDYAUSIKU HAS MADE IT
CLEAR THAT HE IS WILLING TO CARRY ZANU-PF'S WATER AND A
NUMBER OF LEGAL OBSERVERS HAVE TOLD US MUGABE WANTS TO
REPLACE GUBBAY WITH CHIDYAUSIKU WHEN THE FORMER RETIRES
IN APRIL 2002. ONE PROMINENT JUDGE TOLD US
CHIDYAUSIKU'S SPEECH WAS INTENDED AS A TRAP TO FORCE
GUBBAY TO CALL FOR AN INVESTIGATION OF THE HIGH COURT
JUDGE PRESIDENT. ACCORDING TO OUR CONTACT, SUCH A CALL
COULD HAVE GIVEN PRESIDENT MUGABE A CONSTITUTIONAL
PROVISION TO USE TO REPLACE GUBBAY NOW WITH CHIDYAUSIKU,
IN THE NAME OF JUDICIAL HARMONY. GUBBAY AVOIDED THE
TRAP BY REPRIMANDING CHIDYAUSIKU INSTEAD OF CALLING FOR
AN INVESTIGATION. END COMMENT.

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IRVING

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