US embassy cable - 03HARARE2185

C O N F I D E N T I A L HARARE 002185 
 
SIPDIS 
 
AF/S FOR M. RAYNOR 
NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER 
LONDON FOR C. GURNEY 
PARIS FOR C. NEARY 
NAIROBI FOR T. PFLAUMER 
 
E.O. 12958: DECL: 11/03/2013 
TAGS: PGOV, PHUM, ZI 
SUBJECT: ELECTION PETITION HEARINGS UNDERWAY 
 
REF: HARARE 2123 
 
Classified By: Political Officer Win Dayton under Section 1.5(b)(d) 
 
1.  (U) Presided over by High Court Justice Hlatshwayo, 
hearings on the MDC's petition seeking invalidation of 
Zimbabwe's 2002 election results commenced November 3. 
Attorneys for the MDC spent the day reviewing arguments 
advanced in the party's petition (e-mailed to AF/S), 
interrupted occasionally with questions by a soft-spoken 
Justice Hlatshwayo.  The day's first order of business was a 
shifting -- on petitioner's motion -- of the court venue to a 
larger courtroom within the High Court to accommodate the 
modest crowd of several dozen spectators, which included 
foreign diplomats. 
 
2.  (C) Last week's naming of Hlatshwayo as presiding justice 
was an unwelcome development for the MDC.  A relative 
newcomer to the bench, Hlatshwayo already has developed a 
pro-government track record in politically sensitive cases, 
including a recent contest over elections in Chegutu, in 
which he upheld the election's result despite the violent 
obstruction of MDC members from registering their 
candidacies.  A former university lecturer known for his 
outspokenly socialist views, Hlatshwayo was seen as a close 
protege of Information Minister Jonathan Moyo when they 
served on a constitutional commission together in the run-up 
to the 2000 constitutional referendum.  He seized a farm in 
connection with the government's land reform program and is 
respondent in a legal challenge being brought by the 
aggrieved farmer. 
 
3.  (C) MDC Secretary for Legal Affairs David Coltart told 
poloff that the MDC had decided against seeking recusal of 
Justice Hlatshwayo (contrary to reports in the 
government-controlled press).  Such a motion would have been 
difficult to win and would have served only to delay 
commencement of an examination of the case's merits. 
Hlatshwayo's assignment to the case only served to underscore 
the inevitability of the case's outcome, but the MDC was 
pleased to have proceedings underway in any event.  Coltart 
said the presence of U.S. Federal District Judge Davis (here 
on behalf of the American Bar Association) and another Kenyan 
jurist as international observers was critical in keeping 
Hlatshwayo "honest" -- at least on technical motions such as 
the venue change. 
 
4.  (C) COMMENT:  Today's edition of the 
government-controlled Herald carried nothing on the hearing, 
underscoring the government's interest in minimizing coverage 
of the case at home even as the MDC seeks to maximize 
coverage abroad.  Although prospects for an overturning of 
the election result seem unlikely, timetable for the case's 
progress remains an uncertain variable.  As reported reftel, 
constitutional arguments are likely to be wrapped up within 
the next week or so.  The High Court can decide on them 
itself or refer them to the Supreme Court for judgment -- 
either step could take months.  Assuming a finding for the 
government in this first phase, the case would then proceed 
to a second phase that would address evidence of specific 
incidents of intimidation and misconduct -- a spectacle the 
government would prefer to defer until next year, if ever. 
SULLIVAN