ANOTHER SUPREME COURT JUSTICE IS SHOWN THE DOOR

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 000694

SIPDIS

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

PASS USAID FOR AFR/SA C. PALMA

PASS USTR FOR ROSA WHITAKER

E.O. 12958: DECL. 02/09/11
CONFIDENTIAL

PAGE 02 HARARE 00694 01 OF 02 091143Z
TAGS: PGOV PHUM PINS PINR ZI
SUBJECT: ANOTHER SUPREME COURT JUSTICE IS SHOWN THE DOOR

REF: HARARE 644

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

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


1. (C) AFTER FORCING SUPREME COURT CHIEF JUSTICE ANTHONY
GUBBAY INTO EARLY RETIREMENT ON FEBRUARY 2 (REFTEL),THE
GOVERNMENT HAS NOW TURNED ITS ATTENTION TO GUBBAY'S FOUR
COLLEAGUES ON ZIMBABWE'S HIGHEST BENCH. ON FEBRUARY 9,
JUSTICE MINISTER PATRICK CHINAMASA ASKED FOR THE
RESIGNATION OF JUSTICE NICHOLAS MCNALLY AND WAS EXPECTED TO
MAKE THE SAME DEMAND LATER IN THE DAY OF JUSTICE AHMED
IBRAHIM. MCNALLY, WHO REACHES THE MANDATORY RETIREMENT AGE
OF 70 IN DECEMBER OF THIS YEAR, IS INCLINED TO SUBMIT HIS
RESIGNATION, CONVINCED THAT THE ONLY ALTERNATIVE IS FURTHER
INTIMIDATION AND LIKELY PHYSICAL HARM BY THE GOVERNMENT'S
SO-CALLED WAR VETERANS AND SUSPENSION OF HIS PENSION. END
SUMMARY.

GO, OR ELSE
--------------


2. (C) ZIMBABWEAN SUPREME COURT JUSTICE NICHOLAS MCNALLY
(PROTECT) TOLD POLITICAL SECTION CHIEF ON FEBRUARY 9 THAT
JUSTICE MINISTER PATRICK CHINAMASA HAD ASKED HIM EARLIER
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THAT DAY TO SUBMIT HIS RESIGNATION, EVEN THOUGH HE DOES NOT
REACH THE MANDATORY RETIREMENT AGE OF 70 UNTIL DECEMBER OF
THIS YEAR. ASKED WHAT WOULD HAPPEN IF HE REFUSED,
CHINAMASA SAID THE PRESIDENT DID NOT WANT MCNALLY TO GET
HURT, BUT, IF HE DECLINED TO COMPLY WITH THE GOVERNMENT'S
REQUEST, "THERE WILL BE AN UGLY CONFRONTATION."


3. (C) THE JUSTICE TOLD POLCHIEF HE IS INCLINED TO GIVE IN
TO CHINAMASA'S ULTIMATUM. ALTHOUGH MCNALLY WOULD FEEL
TERRIBLE ABOUT "DESERTING" ZIMBABWEANS WHO RELY ON THE
JUDICIARY TO BE AN EFFECTIVE CHECK ON THE EXECUTIVE,
PARTICULARLY DURING THESE DIFFICULT TIMES, HE FELT AS
THOUGH HE HAS LITTLE CHOICE. THE JUSTICE IS CONVINCED
THAT, IF HE WERE TO CHOOSE TO STAY ON, THE SO-CALLED WAR
VETERANS WOULD BE DIRECTED TO INTENSIFY THEIR INTIMIDATION
OF HIM AND LIKELY WOULD SEEK TO DO PHYSICAL HARM TO HIM OR
HIS FAMILY. IN ADDITION, MCNALLY SAID HE WILL BE DEPENDENT
UPON HIS PENSION ONCE HE RETIRES, AND FEARS THAT THE
GOVERNMENT MIGHT SIMPLY SUSPEND PAYMENT OF IT. BESIDES,
THE GOVERNMENT HAS MADE CLEAR ITS DETERMINATION TO
CONTINUE TO IGNORE JUDICIAL RULINGS AND HAS NOW STOPPED
BOTHERING EVEN TO APPEAR IN COURT TO ANSWER CLAIMS FROM
FARMERS AND MEMBERS OF THE OPPOSITION. A FURTHER
CONSIDERATION IS THAT MCNALLY COULD NOT COUNTENANCE WORKING
FOR GODFREY CHIDYAUSIKU, THE LIKELY CANDIDATE TO REPLACE
ANTHONY GUBBAY AS CHIEF JUSTICE. THE NORMALLY RESERVED
MCNALLY CALLED THE PRO-ZANU-PF CHIDYAUSIKU A "SLIMY
BASTARD." CHINAMASA REPORTEDLY IS EYEING THE CHIEF JUSTICE
POSITION HIMSELF, BUT MCNALLY THOUGHT CHIDYAUSIKU WAS THE
ODDS-ON FAVORITE.

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4. (C) MCNALLY SAID CHINAMASA WOULD BE MEETING LATER IN
THE DAY WITH HIS COLLEAGUE, JUSTICE AHMED IBRAHIM, AND
WOULD DEMAND HIS IMMEDIATE RESIGNATION AS WELL. IBRAHIM IS
ONLY 63, BUT MCNALLY THOUGHT HE WOULD BE INCLINED TO COMPLY
WITH CHINAMASA'S DEMAND. WHAT REMAINS UNCLEAR, MCNALLY
OFFERED, IS WHETHER THE GOVERNMENT WOULD DEMAND THE
DEPARTURE OF THE COURT'S TWO BLACK JUSTICES, AND WHETHER OR
NOT THEY WOULD AGREE TO GO IF PRESSED.

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


5. (C) AFTER FORCING CHIEF JUSTICE GUBBAY INTO EARLY
RETIREMENT ON FEBRUARY 2 (REFTEL),THE GOVERNMENT IS NOW
INTIMIDATING HIS COLLEAGUES INTO STEPPING DOWN AS WELL.
THE DEPARTURE OF ALL THREE JUDGES (TWO WHITE AND ONE OF
ASIAN HERITAGE) WOULD KNOCK OUT 60 PERCENT OF THE SUPREME
COURT IN A SEVEN-DAY PERIOD. MCNALLY, WHO OPPOSED THE IAN
SMITH REGIME AND HAS SERVED ON THE SUPREME COURT SINCE
1984, CLEARLY RESENTED THE GOVERNMENT'S PRESSURE, BUT
ENSURING HIS PERSONAL SAFETY AND THAT OF HIS FAMILY, ALONG
WITH THE NEED TO PRESERVE HIS FINANCIAL SECURITY IN
RETIREMENT, PROVIDE COMPELLING REASONS TO GO. THESE
DEPARTURES, HOWEVER, DRIVE THE STAKE FURTHER INTO THE HEART
OF THE RULE OF LAW HERE, AND REMOVES THE ONLY GENUINE CHECK

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O 091144Z FEB 01
FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 8201
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 000694

SIPDIS

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

PASS USAID FOR AFR/SA C. PALMA

PASS USTR FOR ROSA WHITAKER

E.O. 12958: DECL. 02/09/11
CONFIDENTIAL

PAGE 02 HARARE 00694 02 OF 02 091143Z
TAGS: PGOV PHUM PINS PINR ZI
SUBJECT: ANOTHER SUPREME COURT JUSTICE IS SHOWN THE DOOR

ON A PRESIDENT DETERMINED TO RETAIN POWER AT ALL AND ANY
COSTS. END COMMENT.

IRVING

CONFIDENTIAL

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