US embassy cable - 00HARARE6547

C O N F I D E N T I A L HARARE 006547 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH 
 
LONDON FOR GURNEY 
 
PARIS FOR BISA WILLIAMS 
 
NAIROBI FOR PFLAUMER 
 
PASS USTR FOR ROSA WHITAKER 
 
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E.O. 12958: DECL: 11/21/2010 
TAGS: PGOV, PHUM, EAGR, ZI, Land Reform 
SUBJECT: HIGH COURT (APPARENTLY) TRUMPS SUPREME COURT ON 
EVICTION CASE 
 
REF: HARARE 6330 
 
CLASSIFIED BY AMBASSADOR TOM MCDONALD FOR REASON 1.5 
(D). 
 
1.  (C) THE GOVERNMENT-INFLUENCED "THE HERALD" 
NEWSPAPER'S NOVEMBER 21 EDITION REPORTED THAT HIGH COURT 
JUDGE PRESIDENT JUSTICE GODFREY CHIDYASIKU ISSUED A 
PROVISIONAL ORDER IN CHAMBERS NOVEMBER 20 WHICH SOUGHT 
TO PREVENT THE GOVERNMENT FROM EXPELLING "RESETTLED 
FARMERS," IN ACCORDANCE WITH A SUPREME COURT CONSENT 
ORDER (REFTEL).  FOLLOWING AN APPLICATION BY THE 
COMMERCIAL FARMERS UNION, THE SUPREME COURT ISSUED A 
CONSENT ORDER ON NOVEMBER 10 FOR THE GOVERNMENT TO 
FOLLOW ALL NECESSARY LEGAL REQUIREMENTS IN TERMS OF THE 
LAND ACQUISITION ACT BEFORE RESETTLING PEOPLE.  ON 
NOVEMBER 20 THE HIGH COURT GRANTED ONE SAMSON MHURIRO 
PERMISSION TO REPRESENT RURAL PEASANT FARMERS ON ALL 
OCCUPIED FARMS IN A CONSTITUTIONAL APPLICATION, IN TERMS 
OF THE CLASS ACTION ACT AND GAVE HIM FIFTEEN DAYS TO DO 
SO.  THE GOVERNMENT, CFU AND THE POLICE, WHO WERE CITED 
AS RESPONDENTS, WERE GIVEN TEN DAYS TO OPPOSE THE 
PROVISIONAL ORDER.  IF THEY FAIL TO DO SO, THE ORDER 
WILL BE AUTOMATICALLY CONFIRMED.  MHURIRO, WHO WAS 
RESETTLED AT VICTORY FARM IN MASHONALAND EAST IN 1998, 
FILED HIS APPLICATION LAST WEEK FOR LEAVE TO SEEK A 
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REVIEW, SCRAPPING AND OR VARIATION OF THE SUPREME COURT 
ORDER.  HE ALLEGED THAT UP TO 26,000 FAMILIES CURRENTLY 
ON FARMS WOULD BE AFFECTED BY EVICTIONS, AS THEY HAVE NO 
PLACE TO GO.  MHURIRO FURTHER STATED THAT HE BELIEVED 
THEIR RESETTLEMENT WAS DONE IN TERMS OF THE LAW, AND WAS 
CONSTITUTIONALLY ENTITLED TO SECURE PROTECTION OF THE 
LAW, AS HE WAS NOT PARTY TO THE SUPREME COURT ORDER. 
 
2.  (C) CONTACTED FOR COMMENT ON NOVEMBER 21, THE 
COMMERCIAL FARMERS UNION (FU) VICE PRESIDENT FOR 
REGIONS, WILLIAM HUGHES, SAID HIS ORGANIZATION COULD NOT 
UNDERSTAND HOW THE HIGH COURT CAN OVERRULE THE SUPREME 
COURT.  OUR LEGAL ADVISOR, ROBERT STUMBLES, TELLS US 
THAT ALTHOUGH LOWER COURTS HAVE RESPECT FOR HIGHER COURT 
JUDGMENTS AND SUPREME COURT RULINGS ARE BINDING ON LOWER 
COURTS, A LOWER COURT JUDGE CAN DISTINGUISH A CASE 
BEFORE HIM AS BEING SLIGHTLY DIFFERENT FROM THE INTENT 
OF A PARTICULAR SUPREME COURT RULING.  IT APPEARS TO 
HAVE HAPPENED IN THIS CASE, ALTHOUGH IT REMAINS UNCLEAR 
WHETHER CHIDYAUSIKU HAS THE AUTHORITY TO STOP 
IMPLEMENTATION OF THE CONSENT ORDER BASED ON A CASE THAT 
OCCURRED TWO YEARS PRIOR TO THE SET OF CIRCUMSTANCES 
THAT SPARKED THE SUPREME COURT RULING IN THE FIRST 
PLACE.  THE CFU VICE PRESIDENT SAID HIS LAWYERS WOULD BE 
LOOKING INTO THE CASE.  THEY HAVE LEARNED THAT JUSTICE 
CHIDYAUSIKU WOULD CLARIFY THE SITUATION SHORTLY, BUT IN 
THE EVENT CHIDYAUSIKU DOES NOT WITHDRAW HIS ORDER ON 
NOVEMBER 22, THEY WILL PREPARE A LEGAL RESPONSE. 
 
3.  (C) COMMENT: TO US THIS APPEARS LIKE ANOTHER ATTEMPT 
BY THE GOVERNMENT TO DISCREDIT THE JUDICIARY.  SUPREME 
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COURT CHIEF JUSTICE, WHO ISSUED THE CONSENT ORDER ON 
NOVEMBER 10, IS WHITE AND RECENTLY HAS BEEN VILIFIED BY 
THE MUGABE GOVERNMENT FOR BEING A BRITISH PAWN.  JUSTICE 
CHIDYAUSIKU IS WIDELY KNOWN TO BE A ZANU-PF SYMPATHIZER 
AND ALREADY HAS TAKEN ACTIONS TO THWART THE OPPOSITION, 
FOR EXAMPLE, DELAYING THE CONSIDERATION OF URGENT 
APPLICATIONS BY THE MOVEMENT FOR DEMOCRATIC CHANGE TO 
OVERTURN PARLIAMENTARY ELECTION RESULTS IN VARIOUS 
CONSTITUENCIES CHARACTERIZED BY INTIMIDATION OR RIGGING. 
IF CHIDYAUSIKU STANDS BY HIS RULING, THE CFU, THE MOST 
AFFECTED PARTY, COULD WELL APPEAL IT TO THE SUPREME 
COURT, A FACT THAT WILL DELAY THE RESTORATION OF THE 
RULE OF LAW TO THE COMMERCIAL FARMS. END COMMENT. 
 
MCDONALD 
 
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