RECUSAL OF JUDGE MUDDIES DAILY NEWS CASE

UNCLAS HARARE 002309

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: PHUM SOCI PGOV KPAO KMDR ZI
SUBJECT: RECUSAL OF JUDGE MUDDIES DAILY NEWS CASE

REF: (A) HARARE 2159 (B) HARARE 2132 and previous

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

SUBJECT:


1. (SBU) SUMMARY: Administrative Court Justice Michael
Majuru recused himself from the Associated Newspapers of
Zimbabwe (ANZ) case on November 25 following reports that he
was to be investigated for bias in the case. A Media and
Information Commission (MIC) application to have the case
removed from the Administrative Court to the Supreme Court
effectively postpones consideration of the merits of ANZ's
case indefinitely. END SUMMARY.


2. (SBU) According to a report in the government-
controlled newspaper The Herald on November 25, MIC lawyer
Mr. Johannes Tomana alleged that one of his clients told him
November 24 that Majuru had told him that he was going to
rule in favor of ANZ when the case before him, effectively
allowing The Daily News (TDN) to resume publication. He also
alleged that Majuru told him that he was not going to hear
the case on the 24th as originally scheduled since there
were certain papers that he needed from the MIC lawyers.
Majuru did not respond to the allegations in court and
simply recused himself when the case came up on November 25.
The Director of the Civil Division of the Attorney General's
office Mrs. Matandamoyo told lawyers from the Human Rights
NGO forum in confidence that the judge had denied the
allegations against him. She said that Majuru admitted that
the person named was his relative and that he saw him on
Sunday night but denied discussing the TDN case.
Matandamoyo told the lawyers that she had worked with Majuru
and considered him to be an exceptional judge -- dedicated
and professional. She said she was disturbed by the
allegations against him and had approached Tomana out of
concern.


3. ANZ legal adviser Gugulethu Moyo told the Embassy
November 25 that the MIC had filed an urgent application to
the Supreme Court to have the case removed from the
jurisdiction of the Administrative Court. Although the MIC
has not yet filed its full legal argument, it is seeking an
order stating that the application should be heard in the
Supreme Court. ANZ will oppose the application in the
Supreme Court. Although ANZ has eight other cases pending in
the courts, this particular case is the only one in which a
favorable ruling would ensure that TDN would resume
publication. A definitive ruling is not expected by the
time the courts close for the year on December 6,
effectively throwing the case into next year. The courts
will re-open on January 12.


4. COMMENT: The GOZ's actions continue a pattern of
undermining the judiciary's independence, and serve as a
message to those judges who continue to decide against the
government. In addition, Justice Majuru's recusal deals a
demoralizing blow to the TDN legal team. He had given ANZ
its most important legal triumph to date when he ruled last
month that TDN would be deemed to be registered and could
begin publishing by November 30. Removal of the case to the
Supreme Court may be justified under applicable law, but
will play right into the hands of the government by further
delaying the case and more likely placing it under
government influence. Case assignment by the pro-government
Chief Justice makes prospects for a favorable judgment slim
in the Supreme Court. Even if the case remains in the
Administrative Court, the presiding justice replacing Majuru
will be under considerable official pressure to rule against
ANZ. To some extent, the latest maneuvers signify nothing
more than sound and fury, as the government gives no
indication it will respect any decision permitting
resumption of publication.


5. COMMENT (CONT'D): The government's actions are yet
another exercise in Justice Holmes's adage: justice delayed
is justice denied. A final decision may never be reached,
as the government may calculate that delays and associated
financial bleeding will accomplish what it has not been able
to accomplish in court: a formal closing of TDN.