1. (U) A LOOMING SHOWDOWN BETWEEN ZIMBABWE'S EMBATTLED
CHIEF JUSTICE ANTHONY GUBBAY AND THE GOVERNMENT OF
ZIMBABWE (GOZ) WAS AVERTED MARCH 2 WHEN GUBBAY AGREED TO
THE APPOINTMENT OF AN ACTING CHIEF JUSTICE, AND THE GOZ
AGREED TO RETAIN GUBBAY'S JUDICIAL PRIVILEGES AND
REFRAIN FROM DEMANDING THE RESIGNATION OF MORE JUSTICES.
GUBBAY DEFIED GOVERNMENT ATTEMPTS TO REMOVE HIM EARLY
WHEN HE SHOWED UP FOR WORK ON MARCH 1. JUSTICE MINISTER
PATRICK CHINAMASA HAD SAID GUBBAY'S TERM WOULD END ON
MIDNIGHT FEBRUARY 28 AND THAT HE WOULD HAVE TO MOVE OUT
OF HIS OFFICES AND OFFICIAL RESIDENCE BY MARCH 9 (REF
A). GUBBAY HAD TOLD CHINAMASA THAT GOVERNMENT'S
INTENTION TO APPOINT AN ACTING CHIEF JUSTICE WAS ON
DUBIOUS LEGAL GROUNDS AND IN CONTRAVENTION OF GUBBAY'S
ORIGINAL TERMS OF DEPARTURE AS AGREED ON FEBRUARY 2 (REF
B).



2. (C) ACCORDING TO MORDECAI MAHLANGU, GUBBAY'S
ATTORNEY, THE CHIEF JUSTICE "GOT MORE THAN EXPECTED"
FROM THE NEW AGREEMENT AND IS REASONABLY HAPPY WITH THE
TERMS OF HIS DEPARTURE. GUBBAY WILL REMAIN AS CHIEF
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JUSTICE THROUGH JUNE 30 (AS ORIGINALLY AGREED), AND WILL
GO ON LEAVE FROM NOW UNTIL HE RETIRES. GUBBAY WILL
RETAIN HIS OFFICIAL VEHICLE AND OFFICES UNTIL JUNE 30,
AND HIS OFFICIAL RESIDENCE UNTIL DECEMBER 31, MAHLANGU
TOLD US. GUBBAY WILL ALSO BE PAID HIS NORMAL SALARY
DURING HIS LEAVE, AND WILL RECEIVE HIS NORMAL PENSION
AFTER RETIREMENT. THESE WERE PARAMOUNT CONCERNS OF
GUBBAY, ACCORDING TO HIS ATTORNEY, BECAUSE SOME JUSTICES
PERCEIVED AS ANTI-GOVERNMENT WERE DRIVEN INTO POVERTY
AFTER THEIR RETIREMENT.



3. (C) THERE ARE TWO IMPORTANT POINTS OF THE AGREEMENT
THAT WERE NOT PART OF THE ORIGINAL TERMS OF DEPARTURE,
ACCORDING TO MAHLANGU. THEY ARE: 1) THE GOZ HAS AGREED
NOT TO ACT UNLAWFULLY TOWARD THE REMAINING JUSTICES,
I.E. NOT TO FORCE THEIR EARLY RETIREMENT THROUGH ILLEGAL
MEANS (COMMENT: PRESUMABLY THIS MEANS THE GOZ COULD
STILL APPOINT TRIBUNALS TO INVESTIGATE THE JUSTICES, AND
IT PROBABLY WILL. END COMMENT.), AND 2) GUBBAY WILL BE
PERMITTED TO ACT ON BEHALF OF OR DEFEND THE REMAINING
JUDGES WHILE HE REMAINS IN OFFICE. ACCORDING TO THE
CONSTITUTION, ONLY THE CHIEF JUSTICE CAN RECOMMEND TO
THE PRESIDENT THAT A TRIBUNAL BE SET UP TO INVESTIGATE
THE REMOVAL OF A JUDGE. (COMMENT: THE CONSTITUTION
MAKES NO PROVISION FOR AN ACTING CHIEF JUSTICE'S POWERS
IN RECOMMENDING A TRIBUNAL, NOR IS IT CLEARLY DEFINED IN
GUBBAY'S AGREEMENT. THIS IS LIKELY TO BE A MAJOR POINT
OF CONTENTION IN THE FUTURE. END COMMENT.) GUBBAY WILL
ALSO REMAIN A MEMBER OF THE JUDICIAL SERVICE COMMISSION,
WHICH OVERSEES THE JUDICIARY AND APPROVES APPOINTMENTS,
AND HE COULD INTERVENE ON BEHALF OF OTHER JUDGES THROUGH
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THIS BODY. IF THE GOZ BREACHES ANY OF THESE PROVISIONS,
THE WHOLE AGREEMENT WILL BECOME NULL AND VOID, THE
ATTORNEY SAID.



4. (C) AS PART OF THE AGREEMENT, GUBBAY RELENTED ON THE
GOZ'S DEMAND TO APPOINT AN ACTING CHIEF JUSTICE WHILE HE
IS ON LEAVE, GUBBAY'S ATTORNEY TOLD US. MAHLANGU SAID
MUGABE ALMOST CERTAINLY WILL APPOINT THE ZANU-PF-
FRIENDLY GODFREY CHIDYAUSIKU AS ACTING CHIEF JUSTICE IN
THE VERY NEAR FUTURE. GUBBAY EVENTUALLY AGREED TO THE
APPOINTMENT OF AN ACTING CHIEF JUSTICE BECAUSE, AS THE
LAW STIPULATES, ALL CONSTITUTIONAL DECISIONS MUST BE
MADE UNANIMOUSLY BY THE FIVE-JUSTICE BENCH, AND
CHIDYAUSIKU CANNOT MAKE IMPORTANT RULINGS WITHOUT THE
CONSENT OF THE REMAINING FOUR INDEPENDENT JUSTICES.
FURTHERMORE, ALL APPEAL DECISIONS MUST BE MADE BY A
MINIMUM OF THREE JUSTICES, ACCORDING TO THE
CONSTITUTION. (COMMENT: ASSUMING AN ACTING CHIEF
JUSTICE IS PLACE, GUBBAY WILL NO LONGER HEAR JUDICIAL
CASES OR WEIGH IN ON RULINGS. END COMMENT.)



5. (C) AS AN ADDED ELEMENT OF DRAMA, SELF-STYLED FARM
OCCUPATIONS LEADER JOSEPH CHINOTIMBA PAID GUBBAY A VISIT
ON MARCH 1 AT THE LATTER'S SUPREME COURT OFFICES.
ACCORDING TO MAHLANGU, CHINOTIMBA SOMEHOW GOT PAST

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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
LAB-01 L-00 VCE-00 AC-01 DCP-01 NSAE-00 OIC-02
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SP-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 /011W


--------------------------

CDC0F3 051504Z /38
O 051501Z MAR 01
FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 8353
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 000918

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER

LONDON FOR CHARLES GURNEY

PARIS FOR BISA WILLIAMS

NAIROBI FOR TERRY PFLAUMER

PASS USTR FOR ROSA WHITAKER

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PAGE 02 HARARE 00918 02 OF 02 051504Z
E.O. 12958: DECL: 03/05/11
TAGS: PGOV PHUM PINS PINR ZI
SUBJECT: ZIMBABWE GOVERNMENT AND CHIEF JUSTICE REACH NEW
AGREEMENT ON CHIEF JUSTICE'S DEPARTURE

SECURITY CHECKPOINTS AND ENTERED THE SUPREME COURT
BUILDING LOBBY. FROM AN INTERNAL PHONE, HE CALLED
GUBBAY AND DEMANDED THAT HE GIVE HIM THE KEYS TO HIS
OFFICIAL MERCEDES. GUBBAY REFUSED, AND CHINOTIMBA WAS
EVENTUALLY REMOVED FROM THE BUILDING WITHOUT INCIDENT.
WHEN THE CHIEF JUSTICE MENTIONED THIS INCIDENT TO
JUSTICE MINISTER CHINAMASA, THE MINISTER RESPONDED THAT
HE DID NOT HAVE ANY CONTROL OVER CHINOTIMBA AND THAT HE
MUST HAVE BEEN ACTING ON HIS OWN.



6. (C) COMMENT: THIS LAST MINUTE AGREEMENT BETWEEN THE
GOZ AND CHIEF JUSTICE IS PROBABLY THE BEST THAT BOTH
COULD HAVE EXPECTED UNDER THE CIRCUMSTANCES. GUBBAY
AVOIDS A NASTY CONFRONTATION AND POTENTIALLY BEING
THROWN OUT ON THE STREETS, AND THE GOZ AVOIDS AN EVEN
GREATER INTERNATIONAL UPROAR OVER ITS BRUTISH HANDLING
OF GUBBAY'S DEPARTURE. MORE LEGAL BATTLES COULD BE ON
THE HORIZON, HOWEVER, BECAUSE THE LANGUAGE OF THE
AGREEMENT IS NOT SPECIFIC ON "UNLAWFUL" GOVERNMENT
ACTIONS TOWARD THE JUDICIARY, AND THE CONSTITUTION IS
VERY BROAD ON THE ESTABLISHMENT OF TRIBUNALS TO CONSIDER
THE REMOVAL OF JUSTICES. THE GOZ IS EAGER TO HAVE ITS
PROTEGE CHIDYAUSIKU BEGIN TURNING BACK THE LEGAL ACTIONS
THAT HAVE HINDERED ITS "FAST-TRACK" RESETTLEMENT
EXERCISE, AND IN ALL LIKELIHOOD WILL NOT LET A PIECE OF
PAPER SIGNED BY GUBBAY AND CHINAMASA STAND IN ITS WAY.
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PAGE 03 HARARE 00918 02 OF 02 051504Z
END COMMENT.

IRVING

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