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IdentifierCreatedClassificationOrigin
01HARARE392 2001-01-19 13:31:00 CONFIDENTIAL Embassy Harare
Cable title:  

SUPREME COURT HEARS MDC CHALLENGE OF MUGABE

Tags:   PGOV PHUM PINS ZI 
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191331Z Jan 01


                           CONFIDENTIAL     PTQ6955

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                  ------------------B89C8D  191332Z /38    
FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 8042
INFO NSC WASHDC IMMEDIATE
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
AMEMBASSY NAIROBI
					  C O N F I D E N T I A L SECTION 01 OF 02 HARARE 000392 

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH
LONDON FOR GURNEY
PARIS FOR WILLIAMS
NAIROBI FOR PFLAUMER

E.O. 12958: DECL. 01/19/11
TAGS: PGOV PHUM PINS ZI
SUBJECT: SUPREME COURT HEARS MDC CHALLENGE OF MUGABE
ELECTORAL DECREE


CONFIDENTIAL

PAGE 02 HARARE 00392 01 OF 02 191332Z
REF: A) 00 HARARE 6955

CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING. REASONS: 1.5
(B) AND (D).

SUMMARY
-------



1. (C) ON JANUARY 19, ZIMBABWE'S SUPREME COURT HEARD
ARGUMENTS IN THE CASE BROUGHT BY THE OPPOSITION MOVEMENT
FOR DEMOCRATIC CHANGE (MDC) AGAINST PRESIDENT MUGABE'S
RECENTLY-ISSUED DECREE PROHIBITING THE NULLIFICATION OF THE
ELECTION OF ANY MEMBER OF PARLIAMENT. THE MDC ATTORNEY
ARGUED PERSUASIVELY THAT THE DECREE SHOULD BE STRUCK DOWN
BECAUSE IT PURPORTS TO LEGITIMIZE ELECTIONS WHICH WERE NOT
FREE AND FAIR, IN VIOLATION OF THE ELECTORAL ACT, AND
BECAUSE IT SEEKS TO BLOCK JUDICIAL ACCESS TO AGGRIEVED
PARTIES WHOSE CIVIL RIGHTS MAY HAVE BEEN VIOLATED, IN
CONTRAVENTION OF THE CONSTITUTION. THE PRESIDING JUSTICES
GREETED WITH SKEPTICISM THE GOVERNMENT'S ARGUMENTS THAT THE
CASE BELONGED IN THE HIGH COURT, NOT THE SUPREME COURT, AND
THAT PARLIAMENT'S LEGAL COMMITTEE SHOULD BE GIVEN TIME TO
EXAMINE THE PRESIDENTIAL DECREE. AFTER THE PRESENTATION OF
ORAL ARGUMENTS, CHIEF JUSTICE GUBBAY MADE NO COMMITMENT
ABOUT WHEN THE COURT'S DECISION WILL BE HANDED DOWN, BUT,
GIVEN THE SIGNIFICANCE OF THE CASE, WE EXPECT A RULING
WITHIN A MATTER OF DAYS. END SUMMARY.

JANUARY 19 HEARING


--------------------------



CONFIDENTIAL

PAGE 03 HARARE 00392 01 OF 02 191332Z


2. (U) THE SUPREME COURT ON JANUARY 19 HEARD THE MDC'S
CHALLENGE OF PRESIDENT MUGABE'S RECENT DECREE AMENDING THE
ELECTORAL ACT. AS REPORTED IN REFTEL, MUGABE'S DECREE,
ISSUED ON DECEMBER 8, PROHIBITED THE NULLIFICATION OF THE
ELECTION OF ANY MEMBER OF PARLIAMENT, EFFECTIVELY DERAILING
THE MDC'S LEGAL CHALLENGES TO THE RESULTS IN 38
CONSTITUENCIES IN LAST JUNE'S PARLIAMENTARY ELECTIONS.
POLOFF WAS IN THE PACKED COURTROOM, WHICH ALSO INCLUDED
EDDISON ZVOBGO, A LONG-TIME ZANU-PF STALWART WHO WAS EXPELLED
FROM THE PARTY POLITBURO IN DECEMBER, AND JOURNALISTS FROM
THE NEW YORK TIMES AND BBC.

MDC'S ARGUMENTS


--------------------------





3. (U) THE MDC'S LEAD ATTORNEY, CHRIS ANDERSEN, URGED THAT
THE PRESIDENT'S DECREE BE STRUCK DOWN IMMEDIATELY, BECAUSE
IT VIOLATED BOTH THE ELECTORAL ACT AND ZIMBABWE'S
CONSTITUTION. THE ELECTORAL ACT, ANDERSEN EXPLAINED,
REQUIRES THAT ANY ELECTION MUST BE FREELY AND FAIRLY
CONDUCTED. HE POINTED OUT, HOWEVER, THAT THE ELECTION HAD
NOT BEEN CONSISTENT WITH THAT STANDARD, BUT INSTEAD HAD
BEEN FRAUGHT WITH SERIOUS IRREGULARITIES, INCLUDING MURDER,
BEATINGS, AND BALLOT-BOX RIGGING. ANDERSEN QUOTED FROM THE
FINAL REPORT OF THE COMMONWEALTH OBSERVER TEAM, WHICH
CHARACTERIZED THE ELECTION AS MARRED BY A SYSTEMATIC
GOVERNMENT-ORGANIZED CAMPAIGN OF VIOLENCE AND INTIMIDATION.
A FURTHER CONSIDERATION FOR THE COURT, ANDERSEN CONTINUED,
IS THAT THE PRESIDENT HAD A DIRECT PERSONAL INTEREST IN THE
RESULTS OF THE JUNE ELECTION. ALLOWING THE PRESIDENT'S
DECREE TO STAND, THEREFORE, WOULD BE TANTAMOUNT TO
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PAGE 04 HARARE 00392 01 OF 02 191332Z
PERMITTING ONE WITH A PERSONAL INTEREST IN A PARTICULAR
OUTCOME TO REFEREE A SOCCER MATCH.



4. (U) ZIMBABWE'S CONSTITUTION, ANDERSEN CONTINUED,
ENSHRINES IN THE JUDICIARY THE POWER TO ARBITRATE
COMPLAINTS FROM CITIZENS ALLEGING CIVIL RIGHTS VIOLATIONS.
SINCE THE ELECTORAL DECREE SEEKS TO BLOCK ACCESS TO THE
COURTS FOR THE VICTIMS OF THE VIOLENCE ASSOCIATED WITH THE
PARLIAMENTARY ELECTION, IT CLEARLY IS UNCONSTITUTIONAL,
ANDERSEN ALLEGED. ANDERSEN MAINTAINED THAT, EVEN IF THE
JUSTICES WERE TO DISAGREE THAT THE DECREE WAS
UNCONSTITUTIONAL OR VIOLATED THE ELECTORAL ACT, HE HOPED
THEY WOULD AGREE THAT, IN ISSUING IT, THE PRESIDENT
SUBVERTED BOTH THE CONCEPT AND PRACTICE OF DEMOCRACY AS IT
IS UNDERSTOOD IN THE MODERN WORLD.

THE GOVERNMENT'S ARGUMENTS


--------------------------





5. (U) THE GOVERNMENT RETAINED AS ITS LEAD ATTORNEY A
SOUTH AFRICAN -- MR. CASSIM (AS HEARD) -- INSTEAD OF
FOLLOWING THE NORMAL PRACTICE OF USING ONE OF ITS OWN
LAWYERS IN THE ATTORNEY-GENERAL'S OFFICE, A DECISION WHICH
ELICITED SOME CRITICISM IN THE INDEPENDENT PRESS. CASSIM
MADE TWO ESSENTIAL ARGUMENTS. FIRST, THAT THE ELECTORAL

CONFIDENTIAL

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ACTION AF-00

INFO LOG-00 NP-00 AID-00 AMAD-00 ACQ-00 CIAE-00 DINT-00
DODE-00 SRPP-00 DS-00 EB-00 EUR-00 FBIE-00 VC-00
H-01 TEDE-00 INR-00 IO-00 LAB-01 L-00 VCE-00
AC-01 NSAE-00 OIC-02 OMB-01 OPIC-01 PA-00 PM-00
PRS-00 ACE-00 P-00 SP-00 SSO-00 STR-00 TRSE-00
USIE-00 PMB-00 DSCC-00 PRM-02 DRL-02 G-00 NFAT-00
SAS-00 SWCI-00 /011W


--------------------------

B89C97 191332Z /38
O 191331Z JAN 01
FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 8043
INFO NSC WASHDC IMMEDIATE
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
AMEMBASSY NAIROBI

C O N F I D E N T I A L SECTION 02 OF 02 HARARE 000392

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH
LONDON FOR GURNEY
PARIS FOR WILLIAMS
NAIROBI FOR PFLAUMER

E.O. 12958: DECL. 01/19/11
TAGS: PGOV PHUM PINS ZI
SUBJECT: SUPREME COURT HEARS MDC CHALLENGE OF MUGABE
ELECTORAL DECREE

CONFIDENTIAL

PAGE 02 HARARE 00392 02 OF 02 191332Z
ACT GIVES THE PRESIDENT THE AUTHORITY TO ISSUE REGULATIONS
RELATING TO ELECTIONS. THE IMPROPER USE OF THAT AUTHORITY,
HE ARGUED, WAS A LEGITIMATE SUBJECT OF DEBATE, BUT ONE THAT
SHOULD BE HEARD IN THE HIGH COURT, NOT THE SUPREME COURT,
AS IT DID NOT INVOLVE CONSTITUTIONAL QUESTIONS. TWO OF THE
FIVE JUSTICES STRONGLY OBJECTED TO CASSIM'S CONTENTION THAT
THE SUPREME COURT DID NOT HAVE JURISDICTION IN THIS CASE.
CASSIM'S SECOND POINT WAS TO URGE THE COURT, IF IT DECIDED
THAT THE CASE DID POSE LEGITIMATE CONSTITUTIONAL ISSUES, TO
REFRAIN FROM HEARING IT UNTIL PARLIAMENT'S LEGAL COMMITTEE
HAD FINISHED EXAMINING THE LEGALITY OF MUGABE'S DECREE.
SEVERAL JUSTICES DISAGREED WITH THE ARGUMENT THAT THE COURT
SHOULD WAIT FOR PARLIAMENT TO CONSIDER THE ISSUE, STRESSING
THAT THESE WERE TWO INDEPENDENT PROCESSES THAT COULD HAPPEN
SIMULTANEOUSLY.

COMMENT


--------------------------





6. (C) THE STAKES ARE EXTREMELY HIGH IN THIS CASE,
EVIDENCED BY THE PRESENCE OUTSIDE THE COURT OF THREE
GOVERNMENT MINISTERS -- JONATHAN MOYO OF INFORMATION AND
PUBLICITY, JOSEPH MADE OF LANDS, AGRICULTURE, AND
RESETTLEMENT, AND IGNATIUS CHOMBO OF LOCAL GOVERNMENT,
PUBLIC WORKS, AND NATIONAL HOUSING -- ATTEMPTING TO SPIN
MEMBERS OF THE PRESS. MANY OBSERVERS SAID THEY FELT SORRY
FOR CASSIM, AS HE HAD A VERY TALL, PERHAPS IMPOSSIBLE, TASK
IN DEFENDING THE GOVERNMENT'S POSITION. CHIEF JUSTICE
GUBBAY MADE NO COMMITMENT ABOUT WHEN A RULING MIGHT BE
HANDED DOWN, BUT WE EXPECT IT WILL BE IN A MATTER OF DAYS,
GIVEN THE IMPORTANCE OF THE CASE. JUDGING FROM THE STRONG
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PAGE 03 HARARE 00392 02 OF 02 191332Z
SKEPTICISM WITH WHICH THE JUSTICES GREETED CASSIM'S
ARGUMENTS (SEVERAL EVEN ROLLED THEIR EYES AS HE MADE HIS
POINTS), WE ANTICIPATE THE COURT WILL OVERTURN THE DECREE.
SUCH A RULING WOULD PERMIT THE MDC'S CHALLENGES TO THE
RESULTS IN 38 CONSTITUENCIES TO MOVE FORWARD IN THE HIGH
COURT, AND THE MDC WOULD HAVE TO WIN ONLY 20 OF THOSE SEATS
TO SECURE A MAJORITY IN PARLIAMENT. A SUPREME COURT RULING
IN FAVOR OF THE MDC, HOWEVER, WOULD BE ONLY HALF THE
BATTLE, AS THE JUDGE PRESIDENT OF THE HIGH COURT, GODFREY
CHIDAYAUSIKU, IS CLOSELY ALLIED WITH ZANU-PF AND WILL DO
ALL HE CAN TO DELAY ACTION ON THE ELECTORAL CHALLENGES.

IRVING

CONFIDENTIAL

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