US embassy cable - 00HARARE7285

C O N F I D E N T I A L HARARE 007285 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH 
 
LONDON FOR CHARLES GURNEY 
 
PARIS FOR BISA WILLIAMS 
 
NAIROBI FOR TERRY PFLAUMER 
 
PASS USTR FOR ROSA WHITAKER 
 
E.O. 12958: DECL: 12/29/10 
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TAGS: PHUM, PGOV, ZI 
SUBJECT: ZIMBABWE PRESIDENT DILUTES INDEPENDENCE OF HIGH 
COURT WITH NEW APPOINTMENTS 
 
 
CLASSIFIED BY CHARGE D'AFFAIRES EARL M. IRVING FOR 
REASONS: 1.5 (B) AND (D). 
 
1.  (U) ON DECEMBER 21, PRESIDENT MUGABE EXPANDED THE 
ZIMBABWE HIGH COURT BY SWEARING IN FOUR NEW JUSTICES. 
THREE OF THE NEW JUSTICES HAVE CLEAR TIES TO THE RULING 
ZANU-PF.  RITA MAKARAU IS A FORMER NON-CONSTITUENCY MP 
APPOINTED BY MUGABE AND SERVED IN THE LAST PARLIAMENT. 
SHE WAS ALSO APPOINTED TO SERVE ON THE GOVERNMENT'S 
CONSTITUTIONAL COMMISSION, WHICH LAST YEAR HIJACKED THE 
BROAD-BASED NATIONAL CONSTITUTIONAL ASSEMBLY'S EFFORT TO 
WRITE A NEW CONSTITUTION.  CHARLES HUNGWE WAS THE FIRST 
CHAIRMAN OF THE ZIMBABWE NATIONAL LIBERATION WAR 
VETERANS' ASSOCIATION FROM 1992 TO 1995, AND WAS A 
SENIOR MAGISTRATE BEFORE HIS HIGH COURT APPOINTMENT.  HE 
IS CURRENTLY A MEMBER OF THE ELECTORAL SUPERVISORY 
COMMISSION, AND IS EXPECTED TO RESIGN FROM THAT POST TO 
TAKE UP HIS NEW POSITION.  BEN HLATSHWAYO, ALSO A MEMBER 
OF THE NOW-DEFUNCT CONSTITUTIONAL COMMISSION, HAS BEEN A 
STAUNCH CRITIC OF THE NCA, AND HE IS CURRENTLY AN 
EDITORIAL ADVISOR TO THE PRO-ZANU-PF "ZIMBABWE MIRROR." 
ANNE-MARIE GOWORA COMES FROM A PRIVATE LAW FIRM, AND 
ONCE WORKED FOR THE ATTORNEY-GENERAL'S OFFICE.  IT IS 
UNCLEAR WHERE HER POLITICAL LEANINGS LIE.  THE 
APPOINTMENTS EXPAND THE HARARE HIGH COURT FROM 15 TO 19 
JUSTICES.  THE SIZE OF THE BULAWAYO HIGH COURT REMAINS 
UNCHANGED AT FOUR JUSTICES. 
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2.  (C) BRIAN RAFTOPOULOS, A RESEARCH FELLOW AT THE 
UNIVERSITY OF ZIMBABWE, TOLD THE EMBASSY THAT MUGABE'S 
APPOINTEES ARE INDEED CLOSE TO THE RULING PARTY, BUT NOT 
SO CLOSE THAT THEY CAN BE CALLED ZANU-PF PUPPETS. 
MUGABE WANTS CREDIBLE AND COMPETENT PEOPLE ON THE COURT, 
RAFTOPOULOS OFFERED, TO AT LEAST PRESERVE SOME 
APPEARANCE OF JUDICIAL INDEPENDENCE.  HIGH COURT 
JUSTICESHIPS ARE NOT "STRAIGHTFORWARD PATRONAGE 
POSITIONS," THE RESEARCH FELLOW CONTINUED, BECAUSE 
JUSTICES EXERCISE A CONSIDERABLE AMOUNT OF AUTONOMY IN 
THEIR RULINGS.  THE JUDICIAL SERVICE COMMISSION, HEADED 
BY THE STAUNCHLY INDEPENDENT SUPREME COURT CHIEF JUSTICE 
ANTHONY GUBBAY, HAD TO APPROVE THE NOMINEES, WHICH ALSO 
LENDS SOME CREDIBILITY TO THE APPOINTMENTS.  (COMMENT: 
RECENTLY APPOINTED TO THE JUDICIAL SERVICE COMMISSION 
WERE TWO VERY PRO-ZANU-PF MEMBERS GODFREY CHIDIYASIKU-- 
THE HIGH COURT JUDGE PRESIDENT--AND CANAAN DUBE.  IN 
ANOTHER ATTEMPT AT VITIATING THE GATEKEEPER POINT OF THE 
JUDICIARY'S INDEPENDENCE, THE COMMISSION CONTRACT OF BOB 
STUMBLES--OUR EMBASSY LAWYER, AND WIDELY RESPECTED IN 
THE LEGAL FIELD--WAS NOT RENEWED BY MUGABE.  END 
COMMENT.)  NONETHELESS, THE APPOINTMENTS REFLECT 
MUGABE'S ONGOING, LONG-TERM PLAN TO TURN THE JUDICIARY 
INTO AN ARM OF GOVERNMENT MORE PLIABLE TO ZANU-PF'S 
WISHES, RAFTOPOULOS BELIEVES. 
 
3.  (C) COMMENT: MUGABE'S EXPANSION OF THE HIGH COURT 
WITH JUSTICES HAVING STRONG TIES TO THE RULING PARTY 
UNDERMINES THE INDEPENDENCE OF THE JUDICIAL SYSTEM, IN 
OUR VIEW.  RAFTOPOULOS IS CORRECT IN THAT THE NEW 
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JUSTICES HAVE STRONG LEGAL CREDENTIALS, AND MUGABE'S 
ATTENTION TO THEIR CREDIBILITY SHOWS THAT THE PRESIDENT 
STILL CARES ABOUT MAINTAINING A FACADE OF LEGALITY FOR 
HIS PARTY'S ACTIONS.  HOWEVER, THE JUDGE PRESIDENT OF 
THE HIGH COURT IS AN AFFIRMED ZANU-PF LOYALIST, AND, 
WITH A LARGER BENCH MORE AMENABLE TO HIS PARTY'S CAUSES, 
HE WILL HAVE MORE OPTIONS IN ASSIGNING CASES WHEN THEY 
COME BEFORE THE HIGH COURT.  THE COURT HAS BEEN 
ESPECIALLY ACTIVE IN ADJUDICATING CLAIMS OF COMMERCIAL 
FARMERS DENIED DUE PROCESS IN THE SEIZURE OF THEIR LAND. 
MUCH OF THIS ACTIVISM, IN THE GOVERNMENT'S 
INTERPRETATION, COULD BE STOPPED COLD WHEN THE COURT 
RESUMES ITS SESSION NEXT MONTH.  END COMMENT. 
 
IRVING 
 
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