ELECTION PETITION HEARINGS UNDERWAY

C O N F I D E N T I A L HARARE 002185

SIPDIS

AF/S FOR M. RAYNOR
NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER
LONDON FOR C. GURNEY
PARIS FOR C. NEARY
NAIROBI FOR T. PFLAUMER

E.O. 12958: DECL: 11/03/2013
TAGS: PGOV PHUM ZI
SUBJECT: ELECTION PETITION HEARINGS UNDERWAY

REF: HARARE 2123

Classified By: Political Officer Win Dayton under Section 1.5(b)(d)


1. (U) Presided over by High Court Justice Hlatshwayo,
hearings on the MDC's petition seeking invalidation of
Zimbabwe's 2002 election results commenced November 3.
Attorneys for the MDC spent the day reviewing arguments
advanced in the party's petition (e-mailed to AF/S),
interrupted occasionally with questions by a soft-spoken
Justice Hlatshwayo. The day's first order of business was a
shifting -- on petitioner's motion -- of the court venue to a
larger courtroom within the High Court to accommodate the
modest crowd of several dozen spectators, which included
foreign diplomats.


2. (C) Last week's naming of Hlatshwayo as presiding justice
was an unwelcome development for the MDC. A relative
newcomer to the bench, Hlatshwayo already has developed a
pro-government track record in politically sensitive cases,
including a recent contest over elections in Chegutu, in
which he upheld the election's result despite the violent
obstruction of MDC members from registering their
candidacies. A former university lecturer known for his
outspokenly socialist views, Hlatshwayo was seen as a close
protege of Information Minister Jonathan Moyo when they
served on a constitutional commission together in the run-up
to the 2000 constitutional referendum. He seized a farm in
connection with the government's land reform program and is
respondent in a legal challenge being brought by the
aggrieved farmer.


3. (C) MDC Secretary for Legal Affairs David Coltart told
poloff that the MDC had decided against seeking recusal of
Justice Hlatshwayo (contrary to reports in the
government-controlled press). Such a motion would have been
difficult to win and would have served only to delay
commencement of an examination of the case's merits.
Hlatshwayo's assignment to the case only served to underscore
the inevitability of the case's outcome, but the MDC was
pleased to have proceedings underway in any event. Coltart
said the presence of U.S. Federal District Judge Davis (here
on behalf of the American Bar Association) and another Kenyan
jurist as international observers was critical in keeping
Hlatshwayo "honest" -- at least on technical motions such as
the venue change.


4. (C) COMMENT: Today's edition of the
government-controlled Herald carried nothing on the hearing,
underscoring the government's interest in minimizing coverage
of the case at home even as the MDC seeks to maximize
coverage abroad. Although prospects for an overturning of
the election result seem unlikely, timetable for the case's
progress remains an uncertain variable. As reported reftel,
constitutional arguments are likely to be wrapped up within
the next week or so. The High Court can decide on them
itself or refer them to the Supreme Court for judgment --
either step could take months. Assuming a finding for the
government in this first phase, the case would then proceed
to a second phase that would address evidence of specific
incidents of intimidation and misconduct -- a spectacle the
government would prefer to defer until next year, if ever.
SULLIVAN