US embassy cable - 03HARARE1935

UNCLAS SECTION 01 OF 03 HARARE 001935 
 
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: PGOV, PHUM, SOCI, ZI 
SUBJECT: COURT DECISIONS CLOUD CIVIL RIGHTS, POLITICAL 
WATERS 
 
REF: (A) HARARE 1911 (B) HARARE 361 
 
SENSITIVE BUT UNCLASSIFIED. NOT FOR INTERNET POSTING. 
PROTECT ACCORDINGLY. 
 
1.  (SBU) SUMMARY:  The Supreme and High Courts of Zimbabwe 
this month have made several notable judgments that may 
shape the future of jurisprudence in the country.  Judgments 
in cases involving The Daily News (TDN) and High Court 
Justice Paradza set precedents with potentially far-reaching 
implications for the independence of the press and 
judiciary, while progress in the Nkala murder trial and 
legal battles over suspended Harare Mayor Elias Mudzuri's 
tenure will affect the domestic political climate.  The 
cases bear out continuing uncertainty for litigants in 
politically sensitive cases, with potentially critical 
consequences for civil society, the judiciary, the 
opposition, and the integrity of the constitution.   END 
SUMMARY. 
 
First TDN Ruling Subordinates Constitutional Rights to 
Legislative Law 
--------------------------------------------- --------- 
 
2.  (U) The September 11 Supreme Court ruling in The Daily 
News case (ref A) seems to say that one cannot bring forward 
a constitutional claim unless one has first complied with 
the law to be challenged. Even if the law may irrevocably 
damage a constitutional right, an individual may still not 
challenge that law. That leaves the question of how one can 
get immediate protection from a law that violates a 
constitutional right?  (Note: the High Court's provisional 
order of September 18 allowing TDN to publish again did not 
question the September 11 order, which only concluded that 
the Court could not hear TDN's constitutional challenge 
until it had complied with the law.  End Note.) 
 
3.  (SBU) The ruling sets a troublesome precedent for 
individuals who seek to challenge the implementation of laws 
that seek to strengthen the government's hold over the media 
and civic organizations.  A notable example already alarming 
the NGO community is the Private Voluntary Organizations 
(PVO) Act, which requires NGOs to register.  Most NGOs in 
the country have not registered with the Ministry of Public 
Service, Labor and Social Welfare and may be considered to 
be operating illegally.  The Ministry is drafting a new Act, 
which is expected to be more stringent than the current one. 
The TDN ruling could be taken to require that NGOs register 
with the Ministry under the Act before they attempt to 
challenge the Act's objectionable provisions.  (Note: 
Further developments relating to TDN case reported septel. 
End Note.) 
 
Paradza Case Offers Hope to Judiciary 
------------------------------------- 
 
4.  (SBU) The Supreme Court ruled on September 16 that the 
arrest, detention and remand of High Court Justice Benjamin 
Paradza in February (ref B) this year was unlawful.  Paradza 
had been charged with defeating the course of justice or 
alternatively trying to contravene the Prevention of 
Corruption Act.  The charges stemmed from allegations that 
he had contacted three fellow judges of the High Court in an 
effort to influence them to release a passport belonging to 
his business partner.  Justice Paradza's attorney Jonathan 
Samkange told us that he was pleasantly surprised by this 
judgment, which he attributed to the composition of the 
bench.  He told us that Justice Paradza's legal team asked 
Chief Justice Chidyausiku and Justice Cheda to recuse 
themselves from the case because each was personally 
involved in the matter.  Samkange asserted that the judgment 
would have been unfavorable if not for the presence of 
Justice Sandura, who is viewed as non-partisan.  Justice 
Sandura asked probing questions, which forced the state 
attorneys to concede that the state's actions had been 
unlawful.  Samkange told us that Justice Paradza would be 
suing all the parties who were involved in his unlawful 
arrest.  This ruling will strengthen the position of judges, 
affording greater protection from future unlawful arrests. 
 
Nkala Murder Case Showcases Alleged Government Abuses 
--------------------------------------------- -------- 
 
5. (U) The trial of MDC MP Fletcher Duluni Ncube and five 
other MDC activists continues in the High Court.  The case 
has now become "a trial within a trial" as the court looks 
into allegations of torture raised by three of the witnesses 
during the course of the trial.  Remember Moyo, Khetani 
Sibanda and Sazini Mpofu claim that the police forced them 
into making confessions.  They claim that they were 
assaulted, denied food, denied access to legal 
representation and unduly influenced.  The court is 
currently hearing the testimony of the third witness Sazini 
Mpofu, who alleges that the police threatened to kill 
members of his family. The police deny the allegations of 
torture and maintain that the three admitted to the crime 
freely and voluntarily.  All three witnesses are currently 
in remand prison. 
 
6.  (SBU) The court will need to determine if these 
allegations are true before it decides to admit their 
statements as evidence during the trial.  The defense 
attorney told us that all three men have been receiving 
better treatment in remand prison since they raised the 
issue of being tortured.  Initially they complained to the 
court about being forced to wear prison uniforms to trial. 
They also complained to their attorneys about not being 
allowed to eat food with other prisoners in remand.  The 
court ordered that they be allowed to wear civilian 
clothing.  Since the allegations of state involvement in the 
death of MDC MP Learnmore Jongwe in remand prison, the three 
have also been allowed to eat with other prisoners. MDC MP 
Fletcher Dulini Ncube remains out of police custody. 
Although his health has improved, Duluni Ncube has never 
recovered from losing vision in one of his eyes during the 
time he was arrested and imprisoned. 
 
Mayor's Plight Highlights the Court as Political 
Battleground 
--------------------------------------------- --- 
 
7.  (SBU) In the long running battle between Minister of 
Local Governance Ignatius Chombo and Harare's MDC Mayor 
Elias Mudzuri, the High Court deferred decision on Chombo's 
application to confirm a provisional order barring the 
suspended mayor from performing council duties.  Mudzuri 
asserted to the Ambassador on September 17 that the Court 
had demurred indefinitely because it had no evidence to 
support Chombo's dismissal but was unwilling to go against 
the government.  According to Mudzuri, the list of wild 
charges against him had boiled down to a handful of still 
unsubstantiated charges - essentially ones relating to 
alleged interference with a government "turnaround strategy" 
and malfeasance associated with manpower audit. 
 
8.  According to Mudzuri, the cowed court was playing into 
the government's plan to seize de facto control of the 
municipalities it was incapable of winning electorally: it 
would incrementally replace legally incapacitated municipal 
authorities with acting appointees beholden to Chombo. 
Meanwhile, as Mudzuri committed his time and resources to 
litigation, he maintained that the performance of the acting 
Mayor (an allegedly compromised MDC colleague) was degrading 
the level of municipal service and public trust that - by 
design - could taint the entire MDC.  The Mayor is fighting 
a two-front war: even as he contends with Chombo in court, 
he must respond to inquiries from a related investigatory 
commission established by Chombo to investigate the charges. 
 
Comment 
------- 
 
9.  (SBU) At independence in 1980, Zimbabwe's civil court 
system was handling hundreds of cases a year; it now buckles 
under a caseload of tens of thousands.  This overcapacity 
bears testament that the courts remain a resort of first and 
last resort for many Zimbabweans -- increasingly so in the 
political battles between the government and its critics. 
The ruling party generally has wielded the law as a sword, 
but the sword often has proved to be double-edged.  Meant as 
a message to the judiciary, the Paradza case backfired. 
Similarly, the Nkala case is showcasing the ruling party's 
violent side, not the opposition's, as the state originally 
intended.  Even when the courts are inclined to favor the 
government, pro-government rulings have tended to provoke a 
public backlash, as with the adverse TDN actions and, to a 
lesser extent, the Mayor's case. 
10.  (SBU) The presiding judge remains a key variable in the 
outcome of any case.  The government over time has devoted 
considerable effort to bending the judiciary to its will, 
whether through judicial appointments that it controls, by 
outright intimidation or, ironically, through the court 
system - as it attempted to do in the Paradza case.  Pro- 
government Chief Justice Chidyausiku exerts considerable 
influence throughout the bench and can determine the outcome 
of cases over which he chooses to preside.  On the other 
hand, Justice Sandura and others retain considerable 
influence and are able to influence colleagues so long as 
Chidyausiku is not sitting alongside. 
 
11.  (SBU) Despite a toll imposed by attrition among the 
independent-minded, the bench continues to field a host of 
objective judges with full command of Zimbabwe's relatively 
rich and mature jurisprudence.  Whether they are beholden to 
the ruling party or not, though, all judges are acutely 
conscious of the political milieu in which they operate. 
This explains in part the frequent tendency of judges to 
defer decisions -- at once unwilling either to violate the 
letter of the law or to hazard their careers on the 
integrity of a ruling. 
 
12.  (SBU) The state's disappointment in selected recent 
cases can be expected to sharpen its efforts to bring to 
heel an institution regarded by many as fatally compromised 
but still capable of occasionally exerting meaningful checks 
and balances on a dominant executive branch.  In any event, 
government strategies to hedge against or circumvent court 
rulings legislatively and administratively (as in the TDN 
case), left unchecked, will continue to reduce the 
judiciary's importance over time.  The continuing TDN saga, 
the upcoming Tsvangirai treason trial (now due to recommence 
October 27 upon further postponement by presiding Justice 
Garwe), and the opposition's election challenge (November) 
will further test a judicial system straining mightily under 
resource and political challenges.