SUPREME COURT CHIEF JUSTICE FIGHTS BACK

C O N F I D E N T I A L HARARE 000861

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER

LONDON FOR CHARLES GURNEY

PARIS FOR BISA WILLIAMS

NAIROBI FOR TERRY PFLAUMER

PASS USAID FOR AFR/SA - C. PALMA

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PASS USTR FOR ROSA WHITAKER

E.O. 12958: DECL: 02/28/11
TAGS: PGOV PHUM KDEM PINS PINR ZI
SUBJECT: SUPREME COURT CHIEF JUSTICE FIGHTS BACK

REF: (A)HARARE 766, (B)HARARE 694, (C) HARARE 644

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


1. (SBU) IN A DRAMATIC, ELEVENTH HOUR TWIST TO THE SAGA
OF THE ZIMBABWEAN JUDICIARY, CHIEF JUSTICE ANTHONY
GUBBAY MADE PUBLIC HIS INTENTION TO STAY ON THE JOB. IT
WAS EARLIER UNDERSTOOD THAT THE CHIEF JUSTICE WOULD WRAP
UP HIS AFFAIRS AT THE BENCH ON FEBRUARY 28, AT WHICH
TIME HE WOULD TAKE FOUR MONTHS' LEAVE AND OFFICIALLY
RETIRE AT THE END OF JUNE. ON FEBRUARY 27 RUMBLINGS
THAT THE CHIEF JUSTICE MIGHT NOT GO QUIETLY PROMPTED
MINISTER OF JUSTICE, LEGAL, AND PARLIAMENTARY AFFAIRS
PATRICK CHINAMASA TO ANNOUNCE THAT THE GOVERNMENT WOULD
GIVE THE CHIEF JUSTICE FOUR MONTHS' PAY, MAKING HIS
RETIREMENT EFFECTIVE AT MIDNIGHT ON FEBRUARY 28 AND
ORDERED HIM TO VACATE HIS OFFICIAL RESIDENCE BY MARCH 9.
CHINAMASA ESSENTIALLY TRICKED GUBBAY INTO "RESIGNING"
AHEAD OF HIS MANDATORY RETIREMENT DATE IN APRIL 2002
(REF C). THE CHIEF JUSTICE NEVER PUBLICLY ACKNOWLEDGED
HIS AGREEMENT TO DO SO.


2. (C) SPEAKING TO CHARGE ON FEBRUARY 28, THE CHIEF
JUSTICE SOUNDED TIRED AND DEPRESSED. HE HAD PRACTICAL
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MATTERS TO ATTEND TO, SINCE SHORTLY HE WILL LOSE HIS
OFFICIAL RESIDENCE, OFFICIAL VEHICLE AND A SUBSTANTIAL
PORTION OF HIS INCOME. HE REPORTED THAT HE WAS
CONSULTING A TEAM OF LAWYERS WITH RESPECT TO THE CASE HE
WOULD MOUNT TO CHALLENGE THE GOVERNMENT'S
UNCONSTITUTIONAL ACTION IN REMOVING HIM FROM OFFICE. HE
THOUGHT THE PRESIDENT WOULD SWEAR IN A SUBSTANTIVE CHIEF
JUSTICE ON MARCH 1. WHILE HE THOUGHT HE HAD A GOOD CASE
AGAINST THE GOVERNMENT, GUBBAY WAS, NEVERTHELESS,
REALISTIC: "THEY'LL NEVER REINSTATE ME AS CHIEF JUSTICE
OR CANCEL THE APPOINTMENT OF THE ACTING CHIEF JUSTICE."


3. (C) COMMENT: IN AN EARLIER CONVERSATION WITH CHARGE,
GUBBAY MADE CLEAR HIS VIEW THAT THE GOVERNMENT COULD NOT
APPOINT AN ACTING CHIEF JUSTICE TO REPLACE HIM WHILE HE
WAS ON LEAVE, AND THAT IS THE CRUX OF HIS ARGUMENT IN
FIGHTING BACK. GUBBAY NOW APPEARS DETERMINED TO STAY
UNTIL APRIL 2002, WHETHER OR NOT, IN DOING SO, HE
PROVOKES A CONSTITUTIONAL CRISIS. FOR ITS PART, THE
GOVERNMENT SEEMS DETERMINED TO IGNORE THE CONSTITUTIONAL
REQUIREMENTS FOR REMOVING A CHIEF JUSTICE AND PLANS TO
SEND GUBBAY PACKING ON MARCH 1, AN ACTION WHICH HAS NO
BASIS IN LAW. A NUMBER OF INTERLOCUTORS HAVE TOLD US
RECENTLY THAT THE GOVERNMENT'S INTENTION IS TO REPLACE
GUBBAY WITH PRO-ZANU-PF JUDGE PRESIDENT OF THE HIGH
COURT GODFREY CHIDYAUSIKU. CHIDYAUSIKU WILL THEN
RECOMMEND, AS THE CONSTITUTION REQUIRES, THAT A TRIBUNAL
BE FORMED TO INVESTIGATE THE "MISCONDUCT" OF THE
REMAINING FOUR SUPREME COURT JUSTICES. THE GOVERNMENT'S
ULTIMATE OBJECTIVE IS OSTENSIBLY THE REPLACEMENT OF
GUBBAY'S FOUR COLLEAGUES WITH JURISTS WILLING TO LOOK
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THE OTHER WAY AS PRESIDENT MUGABE AND HIS CRONIES RUN
ROUGHSHOD OVER THE SPIRIT IF NOT THE LETTER OF THE LAW.
END COMMENT.

IRVING

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