LAWYERS ELABORATE ON TSVANGIRAI CASE

S E C R E T HARARE 001224

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR C. COURVELLE, D. TEITELBAUM
LONDON FOR C. GURNEY
PARIS FOR C. NEARY
NAIROBI FOR T. PFLAUMER

E.O. 12958: DECL: 07/22/2009
TAGS: PGOV PHUM PREL ZI MDC
SUBJECT: LAWYERS ELABORATE ON TSVANGIRAI CASE

REF: (A) PRETORIA 3333 (B) HARARE 1205 (C) HARARE 1201

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


1. (C) Opposition leader Morgan Tsvangirai's lawyers told
the Embassy on July 22 that the court advised them that
announcement of the verdict had been postponed until August,
date to be determined. The reason given was that the
assessors had requested full transcripts of the trial for
further review. The lawyers interpretation of this
development was that the judge had rendered a guilty verdict
with which the assessors disagreed. The lawyers knew little
of the identity of either assessor, although they thought one
was a retired brigadier (NFI).


2. (U) Under Zimbabwean law, each capital case is assigned
two assessors selected by the Minister of Justice, with the
concurrence of the Chief Justice and Judge President. The
assessors are selected from a pool of individuals deemed to
have experience in the administration of justice or skills
relevant to the particular case at hand but are not officers
of the court. The assessors hear the entire case. The facts
on which a guilty verdict is based must be agreed by the
judge and at least one of the assessors. The High Court Act
provides that the judge may dismiss an assessor if (s)he
determines that the assessor is unable to perform relevant
duties. In the event of dismissal or death of an assesor,
the judge and remaining assessor would have to agree on the
facts to support a guilty verdict. If they do not, the
defendant would remain in custody of the court or remain free
if already on bail, and could be tried again. While it may
be reasonable to assume the same outcome would would ensue
from a judge's failure to elicit concurrence from either
assessor when both remain, the law appears to be curiously
silent on that more common scenario.


3. (U) Local lawyers were unaware of a case in which a
judge's verdict had proceeded without the concurrence of
either assessor. In at least one case, however, no verdict
was rendered when neither assessor concurred, but it is
unclear whether that was required by law or merely reflected
the prevailing culture of jurisprudence at the time.


4. (S/NF) British charge told the embassy on July 23 that
London had instructed the British embassies in Pretoria and
Abuja to approach host governments and seek engagement on
Tsvangirai's possibly wired conviction. She added that Jack

SIPDIS
Straw was following the matter very closely; she "expected"
him to make calls to Abuja and Pretoria on the matter but
emphasized that no final decision had been taken.


5. (C) At a meeting in his office on July 22, Ambassador
Sullivan emphasized to Father Fidelis Mukonori, Jesuit
Provincial of Zimbabwe and confidant of President Mugabe,
that a conviction of Tsvangirai on such a flimsy case could
only be regarded as a political verdict and would have
serious repurcussions for the GOZ at home and abroad. Father
Fidelis said he did not think that Mugabe would be involved
in ordering a conviction and that Mugabe would not allow a
death sentence to be carried out in any event. He undertook
to raise the matter with Mugabe when he saw him in the next
two weeks and report back to the Ambassador.


6. (C) COMMENT: That the GOZ would have not assured that at
least one of the assessors was within its control is
surprising. Nonetheless, the assessors appear to have thrown
an unexpected wrench into the works that may open a window of
opportunity for Obasanjo, Mbeki, and possibly others to weigh
in.


SULLIVAN