SUPREME COURT RESERVES JUDGMENT ON ANZ

C O N F I D E N T I A L HARARE 000409 SIPDIS AF/PD FOR DFOLEY, CDALTON NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER, D. TEITELBAUM LONDON FOR C. GURNEY PARIS FOR C. NEARY NAIROBI FOR T. PFLAUMER E.O. 12958: DECL: 12/31/2014 TAGS: KPAO PGOV PHUM PINR ZI SUBJECT: SUPREME COURT RESERVES JUDGMENT ON ANZ CONSOLIDATED APPEAL REF: A. HARARE 315 ¶B. HARARE 302 ¶C. HARARE 223 Classified By: Political Officer Audu Besmer for reasons 1.5 b/d ¶1. (U) SUMMARY: On March 3, the Supreme Court reserved judgment on the Associated Newspapers of Zimbabwe (ANZ) consolidated appeal (Ref C). The court gave no indication of when it would give its ruling. END SUMMARY. ¶2. (U) The hearing consisted of a constitutional challenge by the ANZ of nine provisions of the Access to Information and Protection of Privacy Act (AIPPA),and an appeal by the Media and Information Commission (MIC) against the October 2003 Administrative Court judgment that ANZ could publish and the MIC was improperly constituted. ¶3. (U) The court accepted ANZ attorneys Eric Matinenga and Chris Andersen's arguments that ANZ was entitled to challenge the constitutionality of AIPPA since it had complied with the provisions of AIPPA by applying to the MIC for registration. The Supreme Court had rejected ANZ's constitutional challenge of AIPPA in September 2003 because it had not registered as a media house and was coming to the court with "dirty hands". ¶4. (U) Challenging nine provisions of AIPPA, but focusing on the provisions that compel media houses to register with the MIC, ANZ attorneys argued that AIPPA's wording makes registration more than a mere formality. On February 5 the Supreme Court ruled that the provision in AIPPA that compelled journalists to seek accreditation was constitutional since it was a "mere formality". ANZ attorneys also argued that AIPPA grants Information Minister Jonathan Moyo unreasonable power to appoint, suspend and dismiss any member of the MIC. ¶5. (U) In its appeal against the October 2003 Administrative Court decision that ANZ could publish, that MIC should have registered ANZ, and that MIC was improperly constituted, MIC attorney Johannes Tomana argued that the court should have referred the matter back to the MIC for further consideration, instead of allowing the ANZ to publish without being registered. ¶6. (SBU) ANZ lawyer Mordecai Mahlangu said the ANZ legal team was happy with the court,s attitude towards ANZ,s constitutional challenge. He thought there was a good chance the court might strike down some sections of AIPPA concerning registration of media houses. He described the courtroom as a "positive atmosphere" and said the judges subjected MIC attorney Tomana to intense questioning. ¶7. (SBU) Mahlangu was not pleased, however, with the court's reaction to the MIC appeal of the October 2003 Administrative Court decision. He commented that the court appeared to be inclined to refer ANZ's registration and the constitution of MIC back to MIC for further consideration. Comment: -------------- ¶8. (SBU) The Supreme Court ruling, whenever it comes, will be an important chapter in the fate of ANZ. However, even if ANZ were successful in striking down some parts of AIPPA, past experience suggests that the GOZ would simply pass new provisions that maintain and bolster AIPPA's controlling features. If indeed the Court refered ANZ's registration back to MIC, and in any event with a delayed decision on the constitutionality of the AIPPA provisions concerning registration, the prospects for TDN to hit the streets any time soon appear very unlikely. SULLIVAN