ZIMBABWEAN SUPREME COURT CHIEF JUSTICE HOLDS FIRM

C O N F I D E N T I A L SECTION 01 OF 03 HARARE 000538

SIPDIS

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

E.O. 12958: DECL. 01/26/11
TAGS: PGOV PHUM PINS PINR ZI
SUBJECT: ZIMBABWEAN SUPREME COURT CHIEF JUSTICE HOLDS FIRM
IN FACE OF INTIMIDATION


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

REF: HARARE 507

SUMMARY
--------------


1. (C) THE CHIEF JUSTICE OF ZIMBABWE'S SUPREME COURT,
ANTHONY GUBBAY, TOLD CHARGE ON JANUARY 26 THAT ZANU-PF
WANTS TO FIND A WAY TO FORCE HIM AND HIS FOUR COLLEAGUES
OFF THE COURT. IN A MEETING SEVERAL DAYS EARLIER, VICE
PRESIDENT MUZENDA REPORTEDLY ACCUSED GUBBAY, WHO IS WHITE,
OF BEING A RACIST BECAUSE HE HAS RULED AGAINST THE
GOVERNMENT IN KEY CASES. THE VICE PRESIDENT ALSO DISMISSED
THE CHIEF JUSTICE'S REQUEST FOR PROTECTION AGAINST
INCREASING HARASSMENT BY SO-CALLED WAR VETERANS. GUBBAY
WAS GRATEFUL FOR THE PRACTICAL AND MORAL SUPPORT HE HAS
RECEIVED FROM THE DIPLOMATIC COMMUNITY, BUT EXPRESSED
CONCERN THAT ANY PUBLIC STATEMENTS OF SUPPORT MIGHT BE
COUNTERPRODUCTIVE. THE DEPARTMENT MAY WISH TO CONSIDER
APPROPRIATE WAYS IN WHICH WE MIGHT SIGNAL INTERNATIONAL
CONFIDENCE IN THE INDEPENDENCE OF THE JUDICIARY, FOR NOW
THE LAST CHECK ON PRESIDENT MUGABE'S EXERCISE OF
UNTRAMMELED POWER. END SUMMARY.


2. (C) CHARGE, ACCOMPANIED BY POLOFF, CALLED ON ZIMBABWEAN
CHIEF JUSTICE ANTHONY GUBBAY ON JANUARY 26. CHARGE
EXPRESSED U.S. CONCERN ABOUT THE EXECUTIVE BRANCH'S
INCREASING CRITICISM OF THE JUDICIARY, AND INTIMIDATION AND
HARASSMENT OF ITS JUSTICES BY SO-CALLED WAR VETERANS, AND
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ASKED HOW GUBBAY WAS HOLDING UP. GUBBAY SAID THE SUPREME
COURT HAS ALWAYS RECEIVED SIGNIFICANT SUPPORT FROM THE
UNITED STATES AND ITS EMBASSY IN HARARE, AND HE WAS
GRATEFUL. HE ACKNOWLEDGED THAT IT WAS INCREASINGLY
DIFFICULT FOR THE COURT'S JUSTICES TO DO THEIR WORK UNDER
CURRENT CIRCUMSTANCES.

MEETING WITH VICE PRESIDENT MUZENDA
--------------


3. (C) GUBBAY SAID HE HAD BEEN TERRIBLY UPSET AFTER HIS
MEETING ON JANUARY 22 WITH VICE PRESIDENT MUZENDA. (NOTE:
GUBBAY HAD SOUGHT THE MEETING TO REQUEST PROTECTION AGAINST
INCREASING INTIMIDATION BY WAR VETERANS. IN NOVEMBER, A
GROUP OF ANGRY VETERANS INVADED THE SUPREME COURT TO
PROTEST THE COURT'S RULING AGAINST THE GOVERNMENT'S FAST
TRACK RESETTLEMENT PROGRAM. IN DECEMBER, WAR VETERANS
ISSUED A STATEMENT SAYING SUPREME COURT JUSTICES WOULD BE
ATTACKED IN THEIR HOMES IF THEY DID NOT RESIGN WITHIN TWO
WEEKS. END NOTE.) MUZENDA REPORTEDLY REFUSED TO TAKE
STEPS TO IMPROVE THE SECURITY OF THE COURT AND ITS
JUSTICES, SAYING IT WAS THE WAR VETERANS WHO FELT
THREATENED BY THE COURT. GUBBAY WAS SURPRISED AT MUZENDA'S
DEEP ANTAGONISM AGAINST HIM. THE VICE-PRESIDENT ACCUSED
GUBBAY, WHO IS WHITE, OF BEING RACIST, BLAMED HIM FOR ALL
THE SIGNIFICANT CASES THE GOVERNMENT HAS LOST, AND SAID
GUBBAY'S RETIREMENT WAS UNDER DISCUSSION BY THE CABINET.

DETERMINED TO REMAIN FIRM
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4. (C) GUBBAY SAID HE AND HIS COLLEAGUES ON THE COUNTRY'S
HIGHEST BENCH WORK WELL TOGETHER. NONE OF THEM RENDER
JUDGMENTS BASED ON POLITICAL CONSIDERATIONS, HE INSISTED,
BUT RULE AS THEY THINK IS FAIR AND JUST. HE IS CONVINCED
THAT THE EXECUTIVE BRANCH WANTS HIM AND THE COURT'S FOUR
OTHER JUSTICES OUT, AND THAT MINISTER OF INFORMATION AND
PUBLICITY JONATHAN MOYO AND JUSTICE MINISTER PATRICK
CHINAMASA ARE LEADING THE CHARGE. (NOTE: CHINAMASA
RECENTLY TOLD JOURNALISTS THE JUSTICES SHOULD BE REPLACED
BECAUSE THEY WERE COLONIALIST HOLDOVERS FROM THE IAN SMITH
REGIME. END NOTE.) GUBBAY AND HIS FELLOW, JUSTICES,
HOWEVER, ARE "DETERMINED TO REMAIN FIRM AND BATTLE ON."
GUBBAY NOTED THAT HE REACHES HIS MANDATORY RETIREMENT AGE
OF 70 IN APRIL 2002. HE MIGHT TAKE FOUR MONTHS OF
ACCUMULATED LEAVE PRIOR TO THAT DATE, HOWEVER, MEANING A DE
FACTO DEPARTURE FROM THE COURT AT THE END OF THIS YEAR.
GUBBAY NOTED, WITHOUT ELABORATING, THAT TWO OTHER JUSTICES
MIGHT ALSO CHOOSE TO STEP DOWN BY THE END OF 2001.

REMOVING A JUDGE NOT EASY
--------------


5. (C) GUBBAY EXPLAINED THAT IT IS EXTREMELY DIFFICULT TO
REMOVE A JUDGE PRIOR TO THE MANDATORY RETIREMENT AGE OF 70.
HE CITED THE ABSENCE OF A JUDICIAL CODE OF CONDUCT AS THE

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DINT-00 DODE-00 DOTE-00 SRPP-00 DS-00 EB-00 EUR-00
FAAE-00 FBIE-00 VC-00 H-01 TEDE-00 INR-00 IO-00
L-00 VCE-00 AC-01 DCP-01 NSAE-00 OIC-02 OMB-01
OPIC-01 PA-00 PM-00 PRS-00 ACE-00 P-00 SP-00
IRM-00 SSO-00 STR-00 TRSE-00 USIE-00 PMB-00 DSCC-00
PRM-01 DRL-02 G-00 NFAT-00 SAS-00 SWCI-00 /010W
-------------- BBF1A1 261215Z /38
O 261212Z JAN 01
FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 8105
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 03 HARARE 000538

SIPDIS

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

E.O. 12958: DECL. 01/26/11
TAGS: PGOV PHUM PINS PINR ZI
SUBJECT: ZIMBABWEAN SUPREME COURT CHIEF JUSTICE HOLDS FIRM
IN FACE OF INTIMIDATION

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PAGE 02 HARARE 00538 02 OF 03 261215Z
PRINCIPAL GUARANTEE OF THE JUDGES' TENURE. IN FACT, IN
ZIMBABWE'S HISTORY, ONLY ONE MEMBER OF THE BENCH HAS BEEN
EXPELLED FOR MISCONDUCT. IF ANY JUDGE BELOW THE CHIEF
JUSTICE IS ACCUSED OF MALFEASANCE, THE PRESIDENT CANNOT
TAKE ANY ACTION UNLESS THE CHIEF JUSTICE REQUESTS THAT HE
APPOINT A SPECIAL INVESTIGATIVE TRIBUNAL. IF THE CHIEF
JUSTICE HIMSELF IS ACCUSED OF MISCONDUCT, THE PRESIDENT CAN
TAKE THE INITIATIVE IN APPOINTING THE TRIBUNAL, WHICH
NORMALLY COMPRISES A SENIOR JUDGE FROM A NEIGHBORING
COUNTRY AND TWO JURISTS RECOMMENDED BY THE NATIONAL LAW
SOCIETY OF ZIMBABWE. BOTH THE TRIBUNAL AND THE JUDICIAL
SERVICES COMMISSION, ON WHICH GUBBAY SITS, MUST RECOMMEND A
JUDGE'S REMOVAL IN ORDER FOR THE PRESIDENT TO TAKE SUCH A
STEP.


6. (C) GIVEN THE DIFFICULTY OF THIS AVENUE, GUBBAY
SURMISED THAT PRESIDENT MUGABE MIGHT TRY TO FORCE THROUGH
PARLIAMENT A RECENTLY-INTRODUCED BILL CALLING FOR THE CHIEF
JUSTICE'S IMPEACHMENT, BUT HE WAS DISMISSIVE OF SUCH AN
EFFORT, STATING THAT THE LEGISLATIVE BODY HAS NO
JURISDICTION OVER THE SUPREME COURT. GUBBAY SAID HE WAS
PROUD OF HIS RECORD AS CHIEF JUSTICE, AND THAT THE
GOVERNMENT WOULD HAVE TO MANUFACTURE EVIDENCE IF IT
INTENDED TO TRY TO ACCUSE HIM OF MISCONDUCT.

SECURITY HIS MAIN CONCERN
--------------


7. (C) GUBBAY SAID HIS MAIN WORRY FOR NOW IS PROTECTING
THE SECURITY OF THE COURT AND ITS JUSTICES. ASKED WHETHER
THE GOZ PROVIDES A BODYGUARD FOR HIM, HE SAID NO, AND HE
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WAS NOT INTERESTED IN ONE, AS SUCH PROTECTION CERTAINLY
WOULD BE PROVIDED BY AN AGENT OF THE CENTRAL INTELLIGENCE
ORGANIZATION (CIO). INDIVIDUAL POLICE OFFICERS ARE POSTED
AT EACH OF THE JUSTICES' HOUSES, BUT THEY ARE YOUNG AND
WOULD BE UNABLE TO PREVENT AN INVASION BY GROUPS SEEKING TO
DO HARM. GUBBAY NOTED THAT THE SEVERAL DEMONSTRATIONS
HELD BY SO-CALLED WAR VETERANS IN FRONT OF THE COURT WERE
EXTREMELY WELL-ORGANIZED, CONSISTED OF A SIGNIFICANT NUMBER
OF ILLITERATE WOMEN BUSED IN FROM THE HIGH-DENSITY SUBURBS,
WITH LITTLE IDEA WHY THEY WERE THERE, HOLDING UP
PROFESSIONALLY-PRINTED PLACARDS.

WHY NOT JUST IGNORE JUDICIAL RULINGS
--------------


8. (C) CHARGE ASKED WHY THE GOVERNMENT FELT IT NECESSARY
TO GO BEYOND MERELY IGNORING THE SUPREME COURT'S RULINGS --
ON THE FAST TRACK RESETTLEMENT EXERCISE, FOR EXAMPLE -- TO
QUESTIONING THE MOTIVES OF ITS JUSTICES AND SUBJECTING THEM
TO AN APPARENTLY ORCHESTRATED CAMPAIGN OF INTIMIDATION.
THE GOVERNMENT, GUBBAY REPLIED, WOULD MUCH PREFER TO HAVE
THE JUDICIARY ENDORSE THE GOVERNMENT'S FAST TRACK PROGRAM
AS CONSISTENT WITH ZIMBABWEAN LAW AND THE CONSTITUTION,
WHICH IT IS NOT. JUDICIAL RULINGS THAT THE GOVERNMENT'S
ACTIONS ARE UNLAWFUL OR UNCONSTITUTIONAL GIVES IT A
TERRIBLE IMAGE IN THE EYES OF THE INTERNATIONAL COMMUNITY.
NO SENSIBLE PERSON OPPOSES LAND REFORM, GUBBAY INSISTED,
BUT WHO, HE ASKED, IS RESPONSIBLE FOR THE DELAY? THE
GOVERNMENT HAS HAD 20 YEARS TO IMPLEMENT A FAIR PROCESS,
BUT HAS FAILED TO DO SO.

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ZANU-PF WILL REFUSE TO GO EVEN IF IT LOSES IN 2002
-------------- --------------


9. (C) GUBBAY CONFIRMED THAT THE UPCOMING PRESIDENTIAL
ELECTION MUST BE HELD BETWEEN JANUARY 1 AND MARCH 31, 2002.
ASKED WHETHER THE PRESIDENT COULD RESIGN AND LEGALLY CALL A
SNAP ELECTION LATER THIS YEAR, THE CHIEF JUSTICE WAS
UNSURE, WITHOUT ADDITIONAL STUDY, WHETHER THE CONSTITUTION
WOULD PERMIT SUCH A MOVE. GUBBAY (STRICTLY PROTECT)
OFFERED HIS PERSONAL VIEW THAT, EVEN IF ZANU-PF LOSES THE
PRESIDENTIAL ELECTION, THE PARTY WILL NOT AGREE TO HAND
OVER POWER.

U.S. ASSISTANCE
--------------


10. (C) CHARGE PRAISED GUBBAY'S COURAGE DURING THESE
TRYING TIMES, AND ASKED HOW THE UNITED STATES MIGHT BE OF
ASSISTANCE. GUBBAY WAS GRATEFUL FOR THE OFFER, BUT ASKED
THAT THE U.S. NOT ISSUE ANY PUBLIC STATEMENTS OF SUPPORT,
AS THIS WOULD ONLY OPEN US UP TO CRITICISM THAT WE WERE
TAKING SIDES. HE EXPRESSED GENUINE APPRECIATION FOR THE
OUTSTANDING SUPPORT THE JUDICIARY HAS RECEIVED FROM THE
DIPLOMATIC COMMUNITY HERE, AND NOTED THAT HE HAS RECEIVED
LETTERS OF ENCOURAGEMENT FROM AROUND THE WORLD.

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INFO LOG-00 NP-00 AID-00 AMAD-00 ACQ-00 CIAE-00 INL-00
DINT-00 DODE-00 DOTE-00 SRPP-00 DS-00 EB-00 EUR-00
FAAE-00 FBIE-00 VC-00 H-01 TEDE-00 INR-00 IO-00
L-00 VCE-00 AC-01 DCP-01 NSAE-00 OIC-02 OMB-01
OPIC-01 PA-00 PM-00 PRS-00 ACE-00 P-00 SP-00
IRM-00 SSO-00 STR-00 TRSE-00 USIE-00 PMB-00 DSCC-00
PRM-01 DRL-02 G-00 NFAT-00 SAS-00 SWCI-00 /010W
-------------- BBF1AD 261215Z /38
O 261212Z JAN 01
FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 8106
INFO NSC WASHDC IMMEDIATE
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
AMEMBASSY NAIROBI

C O N F I D E N T I A L SECTION 03 OF 03 HARARE 000538

SIPDIS

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

E.O. 12958: DECL. 01/26/11
TAGS: PGOV PHUM PINS PINR ZI
SUBJECT: ZIMBABWEAN SUPREME COURT CHIEF JUSTICE HOLDS FIRM
IN FACE OF INTIMIDATION

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PAGE 02 HARARE 00538 03 OF 03 261215Z

COMMENT
--------------


11. (C) GUBBAY WAS APPOINTED CHIEF JUSTICE BY PRESIDENT
MUGABE IN 1990. HE IS A THOUGHTFUL, WELL-RESPECTED JURIST,
WHO, AS ONE OBSERVER RECENTLY COMMENTED, DOES NOT HAVE A
POLITICAL BONE IN HIS BODY. THE GOVERNMENT'S ORCHESTRATED
EFFORTS TO INTIMIDATE AND SMEAR GUBBAY AND OTHER JUSTICES
CLEARLY TROUBLE HIM, BUT WE ARE IMPRESSED BY HIS
DETERMINATION NOT TO GIVE IN TO SUCH HARASSMENT. VICE-
PRESIDENT MUZENDA'S RIDICULOUS COMMENT THAT WAR VETERANS
FEEL THREATENED BY THE COURT'S RULINGS AND HIS REFUSAL TO
AUTHORIZE INCREASED SECURITY FOR GUBBAY AND HIS COLLEAGUES
SUGGEST THAT WE ARE LIKELY TO SEE CONTINUING ATTACKS ON THE
JUDICIARY. GIVEN THE DIFFICULTY OF REMOVING SITTING
JUDGES, MUGABE'S GOAL APPEARS TO BE TO TRY TO HOUND GUBBAY
AND OTHER INDEPENDENT-MINDED JUDGES INTO RESIGNING SO THAT
HE CAN REPLACE THEM WITH THOSE WHO ARE WILLING TO DO HIS
BIDDING.


12. (C) THE DEPARTMENT MAY WISH TO CONSIDER CONVEYING
INTERNATIONAL CONFIDENCE IN THE SUPREME COURT'S
INDEPENDENCE, IN A WAY THAT BOTH BOLSTERS THE BESIEGED
JUSTICES AND SENDS A MESSAGE TO ZANU-PF THAT ITS ATTACKS ON
THE JUDICIARY HAVE NOT GONE UNNOTICED. GIVEN GUBBAY'S
CONCERN THAT A PUBLIC STATEMENT ALONG THESE LINES MIGHT BE
COUNTERPRODUCTIVE, PERHAPS A LETTER OF SUPPORT FROM U.S.
CHIEF JUSTICE REHNQUIST TO GUBBAY MIGHT BE AN EFFECTIVE
APPROACH.

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IRVING

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