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

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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
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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
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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

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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

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PAGE 02 HARARE 00766 02 OF 02 161136Z
PRESIDENT MUGABE WILL MOVE TO APPOINT ADDITIONAL, PRO-ZANU-
PF JURISTS. END COMMENT.

IRVING

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