US embassy cable - 03HARARE2309

UNCLAS HARARE 002309 
 
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: PHUM, SOCI, PGOV, KPAO, KMDR, ZI, Media and Communications 
SUBJECT: RECUSAL OF JUDGE MUDDIES DAILY NEWS CASE 
 
REF: (A) HARARE 2159 (B) HARARE 2132 and previous 
 
SENSITIVE BUT UNCLASSIFIED. NOT FOR INTERNET POSTING. 
PROTECT ACCORDINGLY. 
 
SUBJECT: 
 
  1.   (SBU) SUMMARY: Administrative Court Justice Michael 
     Majuru recused himself from the Associated Newspapers of 
     Zimbabwe (ANZ) case on November 25 following reports that he 
     was to be investigated for bias in the case.  A Media and 
     Information Commission (MIC) application to have the case 
     removed from the Administrative Court to the Supreme Court 
     effectively postpones consideration of the merits of ANZ's 
     case indefinitely.  END SUMMARY. 
 
  2.   (SBU) According to a report in the government- 
     controlled newspaper The Herald on November 25, MIC lawyer 
     Mr. Johannes Tomana alleged that one of his clients told him 
     November 24 that Majuru had told him that he was going to 
     rule in favor of ANZ when the case before him, effectively 
     allowing The Daily News (TDN) to resume publication. He also 
     alleged that Majuru told him that he was not going to hear 
     the case on the 24th as originally scheduled since there 
     were certain papers that he needed from the MIC lawyers. 
     Majuru did not respond to the allegations in court and 
     simply recused himself when the case came up on November 25. 
     The Director of the Civil Division of the Attorney General's 
     office Mrs. Matandamoyo told lawyers from the Human Rights 
     NGO forum in confidence that the judge had denied the 
     allegations against him. She said that Majuru admitted that 
     the person named was his relative and that he saw him on 
     Sunday night but denied discussing the TDN case. 
     Matandamoyo told the lawyers that she had worked with Majuru 
     and considered him to be an exceptional judge -- dedicated 
     and professional.  She said she was disturbed by the 
     allegations against him and had approached Tomana out of 
     concern. 
 
  3.   ANZ legal adviser Gugulethu Moyo told the Embassy 
     November 25 that the MIC had filed an urgent application to 
     the Supreme Court to have the case removed from the 
     jurisdiction of the Administrative Court. Although the MIC 
     has not yet filed its full legal argument, it is seeking an 
     order stating that the application should be heard in the 
     Supreme Court. ANZ will oppose the application in the 
     Supreme Court. Although ANZ has eight other cases pending in 
     the courts, this particular case is the only one in which a 
     favorable ruling would ensure that TDN would resume 
     publication.  A definitive ruling is not expected by the 
     time the courts close for the year on December 6, 
     effectively throwing the case into next year.  The courts 
     will re-open on January 12. 
 
  4.   COMMENT: The GOZ's actions continue a pattern of 
     undermining the judiciary's independence, and serve as a 
     message to those judges who continue to decide against the 
     government.  In addition, Justice Majuru's recusal deals a 
     demoralizing blow to the TDN legal team.  He had given ANZ 
     its most important legal triumph to date when he ruled last 
     month that TDN would be deemed to be registered and could 
     begin publishing by November 30.  Removal of the case to the 
     Supreme Court may be justified under applicable law, but 
     will play right into the hands of the government by further 
     delaying the case and more likely placing it under 
     government influence. Case assignment by the pro-government 
     Chief Justice makes prospects for a favorable judgment slim 
     in the Supreme Court.  Even if the case remains in the 
     Administrative Court, the presiding justice replacing Majuru 
     will be under considerable official pressure to rule against 
     ANZ.  To some extent, the latest maneuvers signify nothing 
     more than sound and fury, as the government gives no 
     indication it will respect any decision permitting 
     resumption of publication. 
 
  5.   COMMENT (CONT'D):  The government's actions are yet 
     another exercise in Justice Holmes's adage: justice delayed 
     is justice denied.  A final decision may never be reached, 
     as the government may calculate that delays and associated 
     financial bleeding will accomplish what it has not been able 
     to accomplish in court: a formal closing of TDN.