US embassy cable - 04HARARE409

C O N F I D E N T I A L HARARE 000409 
 
SIPDIS 
 
AF/PD FOR DFOLEY, CDALTON 
NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER, D. TEITELBAUM 
LONDON FOR C. GURNEY 
PARIS FOR C. NEARY 
NAIROBI FOR T. PFLAUMER 
 
E.O. 12958: DECL: 12/31/2014 
TAGS: KPAO, PGOV, PHUM, PINR, ZI 
SUBJECT: SUPREME COURT RESERVES JUDGMENT ON ANZ 
CONSOLIDATED APPEAL 
 
REF: A. HARARE 315 
 
     B. HARARE 302 
     C. HARARE 223 
 
Classified By: Political Officer Audu Besmer for reasons 1.5 b/d 
 
1. (U) SUMMARY: On March 3, the Supreme Court reserved 
judgment on the Associated Newspapers of Zimbabwe (ANZ) 
consolidated appeal (Ref C).  The court gave no indication of 
when it would give its ruling.  END SUMMARY. 
 
2. (U) The hearing consisted of a constitutional challenge by 
the ANZ of nine provisions of the Access to Information and 
Protection of Privacy Act (AIPPA), and an appeal by the Media 
and Information Commission (MIC) against the October 2003 
Administrative Court judgment that ANZ could publish and the 
MIC was improperly constituted. 
 
3. (U) The court accepted ANZ attorneys Eric Matinenga and 
Chris Andersen's arguments that ANZ was entitled to challenge 
the constitutionality of AIPPA since it had complied with the 
provisions of AIPPA by applying to the MIC for registration. 
The Supreme Court had rejected ANZ's constitutional challenge 
of AIPPA in September 2003 because it had not registered as a 
media house and was coming to the court with "dirty hands". 
 
4. (U) Challenging nine provisions of AIPPA, but focusing on 
the provisions that compel media houses to register with the 
MIC, ANZ attorneys argued that AIPPA's wording makes 
registration more than a mere formality.  On February 5 the 
Supreme Court ruled that the provision in AIPPA that 
compelled journalists to seek accreditation was 
constitutional since it was a "mere formality".  ANZ 
attorneys also argued that AIPPA grants Information Minister 
Jonathan Moyo unreasonable power to appoint, suspend and 
dismiss any member of the MIC. 
 
5. (U) In its appeal against the October 2003 Administrative 
Court decision that ANZ could publish, that MIC should have 
registered ANZ, and that MIC was improperly constituted, MIC 
attorney Johannes Tomana argued that the court should have 
referred the matter back to the MIC for further 
consideration, instead of allowing the ANZ to publish without 
being registered. 
 
6. (SBU) ANZ lawyer Mordecai Mahlangu said the ANZ legal team 
was happy with the court,s attitude towards ANZ,s 
constitutional challenge.  He thought there was a good chance 
the court might strike down some sections of AIPPA concerning 
registration of media houses.  He described the courtroom as 
a "positive atmosphere" and said the judges subjected MIC 
attorney Tomana to intense questioning. 
 
7. (SBU) Mahlangu was not pleased, however, with the court's 
reaction to the MIC appeal of the October 2003 Administrative 
Court decision.  He commented that the court appeared to be 
inclined to refer ANZ's registration and the constitution of 
MIC back to MIC for further consideration. 
 
Comment: 
-------- 
 
8. (SBU) The Supreme Court ruling, whenever it comes, will be 
an important chapter in the fate of ANZ.  However, even if 
ANZ were successful in striking down some parts of AIPPA, 
past experience suggests that the GOZ would simply pass new 
provisions that maintain and bolster AIPPA's controlling 
features.  If indeed the Court refered ANZ's registration 
back to MIC, and in any event with a delayed decision on the 
constitutionality of the AIPPA provisions concerning 
registration, the prospects for TDN to hit the streets any 
time soon appear very unlikely. 
SULLIVAN