US embassy cable - 03HARARE2159

UNCLAS SECTION 01 OF 02 HARARE 002159 
 
SIPDIS 
 
DEPT FOR AF/PDPA FOR DALTON, MITCHELL AND SIMS 
AF/S FOR DELISI, RAYNOR 
NSC FOR JENDAYI FRAZER 
LONDON FOR GURNEY 
PARIS FOR NEARY 
NAIROBI FOR PFLAUMER 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PGOV, PHUM, PREL, KPAO, KMDR, ZI 
SUBJECT: LEGAL BATTLE ON AFTER RELEASE OF ANZ DIRECTORS 
 
REF: (A) HARARE 2132 (B) HARARE 1997 AND PREVIOUS 
 
SENSITIVE BUT UNCLASSIFIED; NOT FOR INTERNET POSTING. 
 
1. (SBU) SUMMARY:  A court magistrate on October 29 ordered 
the release of four directors of the Associated Newspapers 
of Zimbabwe (ANZ), reserving judgment on criminal charges 
pending against them until November 13.  Armed police 
continue to bar access to ANZ offices, preventing resumed 
publication of The Daily News (TDN) or The Daily News on 
Sunday (TDNS).  ANZ lawyers advised the Embassy that they 
plan to seek a court order from the High Court requiring 
police to stand down and to permit publication.  END 
SUMMARY. 
 
2. (U) Four ANZ directors - Rachel Kupara (44), Stuart 
Mattinson (58), Brian Mutsau (43) and ANZ Chief Executive 
Officer Samuel Sipepa Nkomo (58) -- on October 29 werehave 
been released on bail after spending two nights in police 
custody.  Each paid Z$50,000 (us$9) to be freed, after the 
presiding magistrate Mishrod Guvamombe ordered the 
directors to return on November 13 for a determination on 
whether the directors have a case to answer on charges of 
"publishing without a license" and "contempt of court." 
Magistrate Guvamombe reserved judgment until November 13, 
saying he needed time to pore over a High Court ruling made 
in Bulawayo on October 27 that freed another ANZ director, 
Washington Sansole, who was arrested last Sunday and held 
overnight in police custody on charges of publishing 
without a license. 
 
3. (U) In presenting her heads of argument in court, ANZ 
lawyer Beatrice Mtetwa complained of the "inhuman 
conditions" in the "tiny, unsanitary prison cell" in which 
the directors were held while in police custody.  She also 
protested against the "limited access" given to the legal 
consulcounsel by the Officer Commanding at the police 
cells, adding that they were also denied food and medicine. 
"This is a violation of the basic human rights," Mtetwa 
told magistrate Guvamombe. 
 
4. (U) The four directors of the country's only independent 
daily newspaper, The Daily News,  had beenwere arrested in 
the afternoon on Monday, October 27 after presenting 
themselves to police in Harare.  They were charged with 
publishing a newspaper without a license under the 
controversial Access to Information and Protection of 
Privacy Act (AIPPA).  Prosecutors on October 29 altered the 
charge Interestingly, the charge was altered Wednesday 
morning, October 29 to include "contempt of court" 
chargescounts. 
 
5. (U) Under the headline "We're back!",l TDN went to press 
on October 25 after the Administrative Court ruled the 
previous day, October 24 that the state-appointed Media and 
Information Commission (MIC) "had not been properly 
constituted." (ref A).  The court then directed that a 
properly constituted commission grant the ANZ a 
registration certificate by November 30 this year.  This 
ruling, according to the arguments submitted by the ANZ 
lawyer Mtetwa to Magistrate Guvamombe, called off all its 
actions to date, rendered media regulations invalid and 
entitled ANZ go to press. 
 
6. (U) Under AIPPA, the MIC has disciplinary powers to 
withdraw licenses; confiscate equipment and jail 
journalists for up to two years.  More than 45 local 
journalists have been charged and four foreign journalists 
expelled since the law was passed. 
 
7. (SBU) Meanwhile, the siege on ANZ offices mounted by 
armed police remains in force.  ANZ legal adviser Gugulethu 
Moyo informed the Embassy that ANZ would file an urgent 
application in the High Court before the end of this week 
to seek the police's immediate removal and resumption of 
publishing operations.  Mtetwa advised that AIPPA was 
unclear on which legal venue was competent to order 
resumption of operations - the High Court, the 
Administrative Court, or the Magistrate's office. 
Arguably, any of the three could, although Mtetwa did not 
suggest ANZ would present the question to the 
Administrative Court (which found resoundingly in its favor 
October 24) with the matter pending before the other two. 
8. (SBU) COMMENT: From South Africa, ANZ Chairman Strive 
Masiyiwa was quoted publicly as predicting that publication 
would resume "in a matter of weeks."  Although the law 
appears to compel a finding that publication be permitted 
immediately, no court has ruled on the issue yet - the 
Administrative Court came closest in its order that ANZ's 
registration (the absence of which has been the basis of 
the government-induced shutdown) would be deemed effective 
on November 30.  The courts will likely strain to avoid 
making a judgment they fear will be ignored (as the 
magistrate did), but ANZ appears prepared to make such 
avoidance impossible.  For its part, the government has 
ignored the intent of a series of court decisions in ANZ's 
favor but has yet to defy an explicit court order, 
capitalizing instead on limits and omissions in each 
decision for some fig leaf of legal authority.  The 
decisive sway held by Information Minister Moyo on this 
issue so far, however, suggests that the government is 
prepared to defy an explicit court order when the time 
comes. 
 
SULLIVAN