REMAINING ZIMBABWE SUPREME COURT JUSTICES STAND

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 000766 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER LONDON FOR GURNEY PARIS FOR WILLIAMS NAIROBI FOR PFLAUMER E.O. 12958: DECL. 02/16/11 TAGS: PGOV PHUM KDEM PINS PINR ZI SUBJECT: REMAINING ZIMBABWE SUPREME COURT JUSTICES STAND FIRM FOR NOW CONFIDENTIAL PAGE 02 HARARE 00766 01 OF 02 161136Z REFS: A) HARARE 694, B) HARARE 644 CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING. REASONS: 1.5 (B) AND (D). ¶1. (C) AFTER JUSTICE MINISTER PATRICK CHINAMASA STRONG- ARMED CHIEF JUSTICE ANTHONY GUBBAY INTO RESIGNING (REF B), THE REMAINING FOUR SUPREME COURT JUSTICES ARE STANDING FIRM FOR NOW. JUSTICE NICHOLAS MCNALLY TOLD POLITICAL CHIEF ON FEBRUARY 13 THAT AFTER CHINAMASA PRESSURED HIM TO RESIGN ON FEBRUARY 9 (REF A),HE LATER CALLED CHINAMASA AND TOLD HIM THAT HE HAD DECIDED TO "DECLINE HIS KIND OFFER." AT FIRST, MCNALLY WAS INCLINED TO GIVE IN, BUT THEN HE JUST COULD NOT BRING HIMSELF TO DO IT, HE TOLD US. MCNALLY NOW PLANS TO STAY ON UNTIL THE END OF THE YEAR WHEN HE REACHES THE MANDATORY RETIREMENT AGE. ACCORDING TO PROMINENT ATTORNEY BEATRICE MTETWA, MCNALLY WAS EMBOLDENED TO STAY ON AFTER RECEIVING A FLOOD OF SUPPORTIVE CALLS FROM AROUND THE WORLD, INCLUDING FROM THE VATICAN. MCNALLY SENT A DEFIANT LETTER TO THE GOVERNMENT-OWNED "THE HERALD," WHICH WAS PUBLISHED IN THE FEBRUARY 15 EDITION, STATING THAT THE SUPREME COURT DOES NOT FAVOR ANY PARTICULAR GROUP AND GIVES ALL ZIMBABWEANS, INCLUDING LANDLESS PEASANTS, A FAIR HEARING. ¶2. (C) JUSTICE AHMED IBRAHIM, WHO WAS ALSO APPROACHED BY CHINAMASA FEBRUARY 9 AND ASKED TO RESIGN (REF A),IS WAVERING, BUT HAS NOT DECIDED WHETHER OR NOT HE WILL QUIT. IBRAHIM REPORTEDLY TOLD CHINAMASA THAT HE WOULD HAVE TO CONSULT WITH HIS FAMILY BEFORE HE MAKES A DECISION. THE FEBRUARY 15-21 "FINANCIAL GAZETTE" REPORTED THAT IBRAHIM'S CONFIDENTIAL PAGE 03 HARARE 00766 01 OF 02 161136Z FAMILY HAS URGED HIM TO STEP DOWN, BUT THAT HE IS UNDER PRESSURE FROM OTHER JUDGES TO STAY ON. ¶3. (C) IN A CONVERSATION WITH THE CHARGE FEBRUARY 15, JUSTICE WILSON SANDURA SAID THAT HE WOULD NOT RESIGN UNDER PRESSURE, EVEN THOUGH HE AND HIS BLACK COLLEAGUE, JUSTICE SIMBARASHE MUCHECHETERE, HAVE NOT YET BEEN APPROACHED BY CHINAMASA. SANDURA SAID THAT BOTH MUCHECHETERE AND IBRAHIM WILL STAY. SANDURA SUSPECTS THAT THE PRESSURE WILL COME, HOWEVER, BECAUSE HIGH COURT JUDGE PRESIDENT GODFREY CHIDYAUSIKU -- GUBBAY'S LIKELY REPLACEMENT AS CHIEF JUSTICE -- DOES NOT WANT TO TAKE OVER THE TOP SPOT ON THE BENCH IF THE OTHER JUSTICES REMAIN. IN FACT, SANDURA TOLD THE CHARGE THAT CHIDYAUSIKU HAS IDENTIFIED AT LEAST FOUR CURRENTLY-SERVING HIGH COURT JUDGES HE WILL INSIST ACCOMPANY HIM TO THE SUPREME COURT, ESSENTIALLY PACKING THE COURT WITH JUDGES SYMPATHETIC TO THE RULING ZANU-PF. (COMMENT: IT IS OUR UNDERSTANDING THAT ZIMBABWEAN LAW REQUIRES A MINIMUM OF FIVE SUPREME COURT JUSTICES BUT DOES NOT ESTABLISH A MAXIMUM NUMBER, MEANING THAT PRESIDENT MUGABE COULD APPOINT AS MANY JUSTICES AS HE CONSIDERS NECESSARY. PACKING THE COURT IS THE EASIEST WAY FOR THE PRESIDENT TO DILUTE THE INFLUENCE OF THE SITTING JUSTICES. IT IS VERY DIFFICULT TO REMOVE A MEMBER OF ZIMBABWE'S HIGHEST COURT, EVEN FOR CAUSE. ZIMBABWE HAS NO JUDICIAL CODE OF CONDUCT TO SERVE AS A STANDARD AND THE PROCESS ITSELF IS STACKED AGAINST THE EXECUTIVE BY THE CONSTITUTION. END COMMENT.) ¶4. (C) STERNFORD MOYO, PRESIDENT OF THE LAW SOCIETY OF ZIMBABWE, TOLD US ON FEBRUARY 16 THAT HE HAS SPOKEN CONFIDENTIAL PAGE 04 HARARE 00766 01 OF 02 161136Z INDIVIDUALLY WITH EACH OF THE JUDGES, AND HAS URGED THEM TO STAND FIRM. IN THE MEANTIME, HE HAS SUCCESSFULLY MARSHALED PUBLIC STATEMENTS OF SUPPORT FOR THE JUSTICES FROM THE LAW SOCIETIES OF ZAMBIA AND SOUTH AFRICA. MOYO NOTED THAT THE INTERNATIONAL BAR ASSOCIATION INTENDED, WITHIN A WEEK, TO SEND A DELEGATION TO ZIMBABWE TO PRESS THE GOVERNMENT TO STAND DOWN FROM ITS ATTACKS AGAINST THE JUDICIARY. MOYO WAS CONFIDENT THAT JUSTICES SANDURA AND MUCHECHETERE WOULD REFUSE TO RESIGN, BUT THOUGHT THAT IBRAHIM COULD GO EITHER WAY. ¶5. (C) COMMENT: ZIMBABWE'S SUPREME COURT JUSTICES ARE AT A CRITICAL CROSSROADS. THREE OF THE FIVE -- SANDURA, MUCHECHETERE, AND IBRAHIM -- ARE SEVERAL YEARS FROM RETIREMENT AGE, AND THAT CAN SEEM LIKE A LONG TIME UNDER THE CURRENT TENSE CIRCUMSTANCES. PRIVATE, INTERNATIONAL CALLS OF SUPPORT, AS WELL AS THE SYMPATHETIC PUBLIC STATEMENTS FROM THEIR LEGAL COLLEAGUES IN THE REGION -- HAVE UNDOUBTEDLY BOLSTERED THE RESOLVE OF THE REMAINING JUSTICES. THE LEGAL COMMUNITY HAS URGED THE JUSTICES TO HANG ON LONG ENOUGH TO ALLOW TIME FOR THE SHOCK OF CHINAMASA'S DEMANDS TO WEAR OFF, AND TO ALLOW SUPPORT FROM DOMESTIC AND INTERNATIONAL GROUPS TO COALESCE. THAT STRATEGY SEEMS TO BE WORKING FOR NOW. HOWEVER, IF THE INCUMBENT JUSTICES DO DECIDE TO STAY PUT, WE SUSPECT THAT CONFIDENTIAL CONFIDENTIAL PTQ3111 PAGE 01 HARARE 00766 02 OF 02 161136Z ACTION AF-00 INFO LOG-00 NP-00 AID-00 AMAD-00 ACQ-00 CIAE-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 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-01 DRL-02 G-00 NFAT-00 SAS-00 /009W -------------- C69785 161136Z /38 O 161137Z FEB 01 FM AMEMBASSY HARARE TO SECSTATE WASHDC IMMEDIATE 8244 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 000766 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER LONDON FOR GURNEY PARIS FOR WILLIAMS NAIROBI FOR PFLAUMER E.O. 12958: DECL. 02/16/11 TAGS: PGOV PHUM KDEM PINS PINR ZI SUBJECT: REMAINING ZIMBABWE SUPREME COURT JUSTICES STAND FIRM FOR NOW CONFIDENTIAL PAGE 02 HARARE 00766 02 OF 02 161136Z PRESIDENT MUGABE WILL MOVE TO APPOINT ADDITIONAL, PRO-ZANU- PF JURISTS. END COMMENT. IRVING CONFIDENTIAL >