COURT DECISIONS CLOUD CIVIL RIGHTS, POLITICAL

UNCLAS SECTION 01 OF 03 HARARE 001935

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER
LONDON FOR C. GURNEY
PARIS FOR C. NEARY
NAIROBI FOR T. PFLAUMER

SENSITIVE

E.O. 12958: N/A
TAGS: PGOV PHUM SOCI ZI
SUBJECT: COURT DECISIONS CLOUD CIVIL RIGHTS, POLITICAL
WATERS

REF: (A) HARARE 1911 (B) HARARE 361

SENSITIVE BUT UNCLASSIFIED. NOT FOR INTERNET POSTING.
PROTECT ACCORDINGLY.


1. (SBU) SUMMARY: The Supreme and High Courts of Zimbabwe
this month have made several notable judgments that may
shape the future of jurisprudence in the country. Judgments
in cases involving The Daily News (TDN) and High Court
Justice Paradza set precedents with potentially far-reaching
implications for the independence of the press and
judiciary, while progress in the Nkala murder trial and
legal battles over suspended Harare Mayor Elias Mudzuri's
tenure will affect the domestic political climate. The
cases bear out continuing uncertainty for litigants in
politically sensitive cases, with potentially critical
consequences for civil society, the judiciary, the
opposition, and the integrity of the constitution. END
SUMMARY.

First TDN Ruling Subordinates Constitutional Rights to
Legislative Law
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2. (U) The September 11 Supreme Court ruling in The Daily
News case (ref A) seems to say that one cannot bring forward
a constitutional claim unless one has first complied with
the law to be challenged. Even if the law may irrevocably
damage a constitutional right, an individual may still not
challenge that law. That leaves the question of how one can
get immediate protection from a law that violates a
constitutional right? (Note: the High Court's provisional
order of September 18 allowing TDN to publish again did not
question the September 11 order, which only concluded that
the Court could not hear TDN's constitutional challenge
until it had complied with the law. End Note.)


3. (SBU) The ruling sets a troublesome precedent for
individuals who seek to challenge the implementation of laws
that seek to strengthen the government's hold over the media
and civic organizations. A notable example already alarming
the NGO community is the Private Voluntary Organizations
(PVO) Act, which requires NGOs to register. Most NGOs in
the country have not registered with the Ministry of Public
Service, Labor and Social Welfare and may be considered to
be operating illegally. The Ministry is drafting a new Act,
which is expected to be more stringent than the current one.
The TDN ruling could be taken to require that NGOs register
with the Ministry under the Act before they attempt to
challenge the Act's objectionable provisions. (Note:
Further developments relating to TDN case reported septel.
End Note.)

Paradza Case Offers Hope to Judiciary
--------------


4. (SBU) The Supreme Court ruled on September 16 that the
arrest, detention and remand of High Court Justice Benjamin
Paradza in February (ref B) this year was unlawful. Paradza
had been charged with defeating the course of justice or
alternatively trying to contravene the Prevention of
Corruption Act. The charges stemmed from allegations that
he had contacted three fellow judges of the High Court in an
effort to influence them to release a passport belonging to
his business partner. Justice Paradza's attorney Jonathan
Samkange told us that he was pleasantly surprised by this
judgment, which he attributed to the composition of the
bench. He told us that Justice Paradza's legal team asked
Chief Justice Chidyausiku and Justice Cheda to recuse
themselves from the case because each was personally
involved in the matter. Samkange asserted that the judgment
would have been unfavorable if not for the presence of
Justice Sandura, who is viewed as non-partisan. Justice
Sandura asked probing questions, which forced the state
attorneys to concede that the state's actions had been
unlawful. Samkange told us that Justice Paradza would be
suing all the parties who were involved in his unlawful
arrest. This ruling will strengthen the position of judges,
affording greater protection from future unlawful arrests.

Nkala Murder Case Showcases Alleged Government Abuses
-------------- --------------


5. (U) The trial of MDC MP Fletcher Duluni Ncube and five
other MDC activists continues in the High Court. The case
has now become "a trial within a trial" as the court looks
into allegations of torture raised by three of the witnesses
during the course of the trial. Remember Moyo, Khetani
Sibanda and Sazini Mpofu claim that the police forced them
into making confessions. They claim that they were
assaulted, denied food, denied access to legal
representation and unduly influenced. The court is
currently hearing the testimony of the third witness Sazini
Mpofu, who alleges that the police threatened to kill
members of his family. The police deny the allegations of
torture and maintain that the three admitted to the crime
freely and voluntarily. All three witnesses are currently
in remand prison.


6. (SBU) The court will need to determine if these
allegations are true before it decides to admit their
statements as evidence during the trial. The defense
attorney told us that all three men have been receiving
better treatment in remand prison since they raised the
issue of being tortured. Initially they complained to the
court about being forced to wear prison uniforms to trial.
They also complained to their attorneys about not being
allowed to eat food with other prisoners in remand. The
court ordered that they be allowed to wear civilian
clothing. Since the allegations of state involvement in the
death of MDC MP Learnmore Jongwe in remand prison, the three
have also been allowed to eat with other prisoners. MDC MP
Fletcher Dulini Ncube remains out of police custody.
Although his health has improved, Duluni Ncube has never
recovered from losing vision in one of his eyes during the
time he was arrested and imprisoned.

Mayor's Plight Highlights the Court as Political
Battleground
-------------- ---


7. (SBU) In the long running battle between Minister of
Local Governance IGNATIUS Chombo and Harare's MDC Mayor
Elias Mudzuri, the High Court deferred decision on Chombo's
application to confirm a provisional order barring the
suspended mayor from performing council duties. Mudzuri
asserted to the Ambassador on September 17 that the Court
had demurred indefinitely because it had no evidence to
support Chombo's dismissal but was unwilling to go against
the government. According to Mudzuri, the list of wild
charges against him had boiled down to a handful of still
unsubstantiated charges - essentially ones relating to
alleged interference with a government "turnaround strategy"
and malfeasance associated with manpower audit.


8. According to Mudzuri, the cowed court was playing into
the government's plan to seize de facto control of the
municipalities it was incapable of winning electorally: it
would incrementally replace legally incapacitated municipal
authorities with acting appointees beholden to Chombo.
Meanwhile, as Mudzuri committed his time and resources to
litigation, he maintained that the performance of the acting
Mayor (an allegedly compromised MDC colleague) was degrading
the level of municipal service and public trust that - by
design - could taint the entire MDC. The Mayor is fighting
a two-front war: even as he contends with Chombo in court,
he must respond to inquiries from a related investigatory
commission established by Chombo to investigate the charges.

Comment
--------------


9. (SBU) At independence in 1980, Zimbabwe's civil court
system was handling hundreds of cases a year; it now buckles
under a caseload of tens of thousands. This overcapacity
bears testament that the courts remain a resort of first and
last resort for many Zimbabweans -- increasingly so in the
political battles between the government and its critics.
The ruling party generally has wielded the law as a sword,
but the sword often has proved to be double-edged. Meant as
a message to the judiciary, the Paradza case backfired.
Similarly, the Nkala case is showcasing the ruling party's
violent side, not the opposition's, as the state originally
intended. Even when the courts are inclined to favor the
government, pro-government rulings have tended to provoke a
public backlash, as with the adverse TDN actions and, to a
lesser extent, the Mayor's case.

10. (SBU) The presiding judge remains a key variable in the
outcome of any case. The government over time has devoted
considerable effort to bending the judiciary to its will,
whether through judicial appointments that it controls, by
outright intimidation or, ironically, through the court
system - as it attempted to do in the Paradza case. Pro-
government Chief Justice Chidyausiku exerts considerable
influence throughout the bench and can determine the outcome
of cases over which he chooses to preside. On the other
hand, Justice Sandura and others retain considerable
influence and are able to influence colleagues so long as
Chidyausiku is not sitting alongside.


11. (SBU) Despite a toll imposed by attrition among the
independent-minded, the bench continues to field a host of
objective judges with full command of Zimbabwe's relatively
rich and mature jurisprudence. Whether they are beholden to
the ruling party or not, though, all judges are acutely
conscious of the political milieu in which they operate.
This explains in part the frequent tendency of judges to
defer decisions -- at once unwilling either to violate the
letter of the law or to hazard their careers on the
integrity of a ruling.


12. (SBU) The state's disappointment in selected recent
cases can be expected to sharpen its efforts to bring to
heel an institution regarded by many as fatally compromised
but still capable of occasionally exerting meaningful checks
and balances on a dominant executive branch. In any event,
government strategies to hedge against or circumvent court
rulings legislatively and administratively (as in the TDN
case),left unchecked, will continue to reduce the
judiciary's importance over time. The continuing TDN saga,
the upcoming Tsvangirai treason trial (now due to recommence
October 27 upon further postponement by presiding Justice
Garwe),and the opposition's election challenge (November)
will further test a judicial system straining mightily under
resource and political challenges.