HIGH COURT DISMISSES PHASE ONE OF MDC PRESIDENTIAL

C O N F I D E N T I A L HARARE 000987

SIPDIS

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: PGOV PHUM PINR ZI
SUBJECT: HIGH COURT DISMISSES PHASE ONE OF MDC PRESIDENTIAL
ELECTION CHALLENGE

REF: 2003 HARARE 2204

Classified By: Political Officer Audu Besmer for reasons 1.5 b/d


1. (U) SUMMARY: On June 10, the High Court dismissed the
first phase of the MDC's election petition covering
challenges against the 2002 presidential election. No date
has yet been set for a second phase, which is expected to
disclose factual evidence potentially embarrassing to the
GOZ. END SUMMARY.


2. (U) High Court Justice Ben Hlatshwayo dismissed the first
phase of the MDC's presidential election petition, ruling
that the constitutional and legal points the MDC raised did
not prejudice the 2002 presidential election. The MDC had
challenged the constitutionality of the Electoral Act and a
2002 amendment to the Act, which allowed President Mugabe to
stipulate the composition of the Electoral Supervisory
Commission (ESC),to restrict mail-in ballots to soldiers and
diplomats, to extend voter registration for five extra days,
and to allow voters who registered after the cutoff date to
vote. The MDC also sought to include the ESC as a
respondent; Hlatshwayo did rule in the MDC's favor on that
point.


3. (SBU) The MDC originally filed this elections petition in
April 2002. After 19 months, in November 2003 the MDC took a
day and a half to argue its 27-point petition in court. The
State's response took 40 minutes and did not cover many of
the points the MDC had raised. Seven months later, Justice
Hlatshwayo has dismissed most of the points the MDC raised.
This paves the way for the second phase of the petition, an
expectedly lengthy phase covering factual evidence and
involving reportedly tens of witnesses. Justice Hlatshwayo
has not yet issued reasons for his decision, and no date has
been suggested to start the second phase.


4. (C) On June 10 MDC MP and Shadow Minister of Justice DAVID
Coltart said that he had been fundraising for the past two
years to pay for this trial and that monies were more or less
in place to pay legal fees for the lengthy second phase.
Coltart could not predict when the second phase of the trail
might start and noted that of 37 MDC challenges to the
parliamentary elections of 2000, only 14 had so far been
heard in court.

Comment:
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5. (C) Many observers construe this dismissal as a serious
blow to the MDC, but the decision itself represents progress
in the case, which has been delayed inexplicably for over two
years. In addition, the first phase covering legal issues
was less significant than the second covering factual ones.
In the second phase the MDC intends to bring forward soldiers
who stuffed ballot boxes, evidence of tampering with the
voters' roll, and other dirty laundry the GOZ would not want
aired in public. The incredible delays and expense, and
judicial bias, however, in this and the parliamentary
challenges have led some MDC leaders to question the wisdom
of using the courts to achieve political ends.
WHITEHEAD