US embassy cable - 00HARARE6660

C O N F I D E N T I A L HARARE 006660 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH 
 
LONDON FOR CHARLES GURNEY 
 
PARIS FOR BISA WILLIAMS 
 
PASS USTR FOR ROSA WHITAKER 
 
E.O. 12958: DECL: 11/28/10 
TAGS: PGOV, PHUM, ZI, Land Reform 
SUBJECT: ZIMBABWE SUPREME COURT OVERRULES HIGH COURT ON 
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LAND EVICTIONS 
 
REFS: A) HARARE 6578, B) HARARE 6547 
 
CLASSIFIED BY AMBASSADOR TOM MCDONALD FOR REASONS: 1.5 
(B) AND (D). 
 
1.  (U) ON NOVEMBER 24, ZIMBABWE'S SUPREME COURT 
OVERRULED THE NOVEMBER 20 HIGH COURT DECISION TO GIVE 
"INTERIM RELIEF" TO FARM SQUATTERS FACING EVICTION FROM 
OCCUPIED FARMS.  IN RESPONDING TO A CLASS ACTION LAWSUIT 
ON BEHALF OF RURAL PEASANT FARMERS (REF B), THE HIGH 
COURT'S JUDGE PRESIDENT, GODFREY CHIDYASIKU, IN EFFECT 
TRIED TO SUSPEND THE SUPREME COURT'S CONSENT DECREE, 
WHICH ORDERED POLICE TO REMOVE ILLEGALLY SETTLED 
SQUATTERS FROM COMMERCIAL FARMS.  ACCORDING TO THE 
NOVEMBER 25 "THE HERALD," THE SUPREME COURT UNANIMOUSLY 
RULED THAT THE HIGH COURT DECISION "IS INVALID AND OF NO 
FORCE AND EFFECT" AND THAT THE HIGH COURT HAS NO 
AUTHORITY TO OVERRULE SUPREME COURT DECISIONS.  SINCE 
THE CLASS ACTION WAS MADE AS A CHALLENGE ON 
CONSTITUTIONAL GROUNDS, CHIEF JUSTICE ANTHONY GUBBAY, 
ASKED THE CLAIMANT RHETORICALLY WHY THE CASE WAS NOT 
BROUGHT BEFORE THE SUPREME COURT, WHICH IS THE ONLY 
COURT EMPOWERED TO HEAR CONSTITUTIONAL CASES. 
 
2.  (C) IN SPEAKING TO DCM AND POLOFF NOVEMBER 28, BRIAN 
RAFTOPOULOS, RESEARCH FELLOW AT THE UNIVERSITY OF 
ZIMBABWE'S INSTITUTE OF DEVELOPMENT STUDIES, STATED THAT 
THE HIGH COURT JUDGE PRESIDENT IS TRYING TO CREATE 
CLEAVAGES IN THE JUDICIARY.  THE PROCESS TO REMOVE 
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JUSTICES IS TOO SLOW FOR PRESIDENT MUGABE, RAFTOPOULOS 
CONTINUED, SO HE IS LOOKING FOR OTHER WAYS TO UNDERMINE 
THE JUDICIARY.  OTHER INTERLOCUTORS HAVE TOLD US THAT 
JUSTICE CHIDYASIKU IS ONE OF SEVERAL JUSTICES ON THE 
HIGH COURT LOYAL TO ZANU-PF.  RAFTOPOULOS BELIEVES THAT 
JUSTICES SYMPATHETIC TO THE RULING PARTY MAY IN THE 
FUTURE TRY TO EXPLOIT AMBIGUITIES IN THE LAW TO FURTHER 
ITS CAUSE.  THE ATTORNEY REPRESENTING THE CLASS ACTION 
CLAIMANTS HAD ARGUED TO THE SUPREME COURT THAT THE HIGH 
COURT HAD "INHERENT JURISDICTION AS A COURT OF JUSTICE 
TO PREVENT A MISCARRIAGE OF JUSTICE." 
 
3.  (C) COMMENT: THE JUDGE PRESIDENT'S ATTEMPT TO 
OVERRULE THE SUPREME COURT, AND THE WAR VETERANS' BRIEF 
INVASION OF THE SUPREME COURT BUILDING ON NOVEMBER 24 
(REF A) COULD PRESAGE AN INTENSIFIED ZANU-PF CAMPAIGN 
AGAINST THE JUDICIARY.  DESPITE THE BLATANT ATTEMPT TO 
INTIMIDATE THE SUPREME COURT JUSTICES BEFORE THEIR 
RULING, THE JUSTICES QUICKLY REGROUPED AND DECISIVELY 
STRUCK DOWN A HIGH COURT RULING THAT HAD LITTLE LEGAL 
MERIT.  IN SOME CASES, POLICE HAVE BEGUN ISSUING 
EVICTION ORDERS TO FARM SQUATTERS, BUT NO LARGE-SCALE 
ACTION IS BEING TAKEN TO IMPLEMENT THE SUPREME COURT'S 
CONSENT ORDER TO REMOVE THE SQUATTERS. 
 
MCDONALD 
 
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