US embassy cable - 00HARARE7286

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 007286 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH 
TREASURY FOR OASIA/EBARBER, BHOFFMAN 
LONDON FOR CGURNEY 
PARIS FOR BISA WILLIAMS 
NAIROBI FOR PFLAUMER 
PASS USAID FOR AFR/SD - DWELLER, AFR/SA - CPALMA, 
NNEWMAN, AA/AFR 
 
USTR FOR ROSA WHITAKER 
 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  07286  01 OF 02  291134Z 
E.O. 12958: DECL 12/29/10 
TAGS: PHUM, PGOV, EAGR, EAID, ZI, Land Reform 
SUBJECT: SUPREME COURT RULES ON CFU LAND CASE, DECISION 
PROVIDES WIGGLE ROOM TO PRESIDENT MUGABE 
 
 
CLASSIFIED BY CHARGE D' AFFAIRES EARL M. IRVING FOR 
REASONS 1.5 (B/D). 
 
REFS: A. HARARE 6802, B. HARARE 6547, C. HARARE 6330, D. 
HARARE 5469, E. HARARE 5337 
 
1. (C) SUMMARY: ON DECEMBER 21 THE SUPREME COURT ISSUED 
ITS RULING ON ALL ASPECTS OF THE BROAD LAWSUIT FILED BY 
THE COMMERCIAL FARMERS UNION (CFU) AGAINST PRESIDENT 
MUGABE AND FIVE MEMBERS OF THE GOVERNMENT OF ZIMBABWE 
(GOZ) (REFTEL E).  THE SUPREME COURT RULED THAT TWO OF 
THE DECLARATIONS (CHARGES) MADE BY THE CFU REGARDING 
ACTIONS PRESIDENT MUGABE HAD TAKEN UNDER THE 
PRESIDENTIAL POWERS (TEMPORARY MEASURES) ACT HAD BEEN 
MADE IRRELEVANT BY PARLIAMENT'S AMENDMENT OF THE LAND 
ACQUISITION ACT.  THE COURT RULED IN FAVOR OF THE CFU ON 
EIGHT OTHER DECLARATIONS.  THE COURT SPECIFICALLY 
DECLARED AT THE CONCLUSION OF ITS RULING THAT: THE RULE 
OF LAW HAS BEEN PERSISTENTLY VIOLATED IN THE COMMERCIAL 
FARMING AREAS SINCE FEBRUARY; THAT THE COMMERCIAL 
FARMERS AND THEIR FARMWORKERS HAVE BEEN DENIED 
PROTECTION OF THE LAW, SUFFERED DISCRIMINATION ON THE 
GROUNDS OF THEIR POLITICAL OPINIONS AND PLACES OF 
ORIGIN, AND HAD THEIR RIGHTS OF ASSEMBLY AND ASSOCIATION 
INFRINGED, ALL IN VIOLATION OF THE CONSTITUTION; THAT A 
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PROGRAM OF LAND REFORM AS DEFINED IN THE CONSTITUTION 
DOES NOT CURRENTLY EXIST; AND THAT THE AMENDMENT TO THE 
LAND ACQUISITION ACT MAKING GOZ NOTICES OF INTENT TO 
ACQUIRE LAND VALID INDEFINITELY WAS LEGALLY INVALID 
BECAUSE IT CONFLICTED WITH THE CONSTITUTION'S 
REQUIREMENT FOR REASONABLE NOTICE.  THE SUPREME COURT 
RULING ALSO PROVIDES SOMETHING FOR MUGABE, IN THAT IT 
MENTIONS THE LEGITIMATE NEED FOR LAND REFORM IN ZIMBABWE 
AND GIVES THE GOZ UNTIL JULY 1, 2001 TO DEVELOP A PLAN 
THAT WILL MEET THE CRITERIA OF THE CONSTITUTION.  AS OF 
DECEMBER 29, THERE HAD BEEN NO OFFICIAL COMMENT FROM 
PRESIDENT MUGABE OR OTHER GOZ OFFICIALS REGARDING THE 
COURT'S RULING.  END SUMMARY. 
 
------------------------ 
THE COURT SIDES WITH CFU 
------------------------ 
 
2. (C) ON RELEASE OF THE COURT'S DECISION ECONOFF SPOKE 
WITH THE PRESIDENT OF THE CFU, MR. TIM HENWOOD, AND 
LEARNED THAT THE CFU WAS PLEASED WITH THE RULING, AND 
RECOGNIZED THAT THE COURT, WHILE RULING ACROSS THE BOARD 
IN FAVOR OF THE CFU'S DECLARATIONS, HAD DONE SO IN A 
MANNER THAT LEFT OPEN THE DOOR FOR FACE-SAVING CHANGES 
IN "FAST-TRACK" BY PRESIDENT MUGABE.  HENWOOD LATER 
ISSUED A STATEMENT HAILING THE COURT'S RULING, BUT ALSO 
DECLARING HIS "FERVENT HOPE THAT ALL STAKEHOLDERS WILL 
GRASP THIS JUDGEMENT AS A TIMELY NATION-BUILDING 
OPPORTUNITY TOWARDS SUSTAINABLE LAND REFORM AND A RETURN 
TO LAW AND ORDER." 
 
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NO LAND REFORM PLAN AND NO RULE OF LAW 
------------------------------------------ 
 
3. (C) THE COURT MADE IT PERFECTLY CLEAR IN ITS RULING 
THAT THERE IS NO LAND REFORM PLAN OR PROGRAM AS DEFINED 
IN THE CONSTITUTION AND REQUIRED BY THE LAW.  AS THE 
COURT STATES, "THE FAST TRACK PLAN IS SIMPLY AN 
'INTENTION'."  THE COURT ALSO CLEARLY STATED THAT THE 
RULE OF LAW HAS BEEN CONSISTENTLY IGNORED BY THE GOZ 
SINCE FEBRUARY ON THE COMMERCIAL FARMS, BOTH IN TERMS OF 
PROTECTING THE FARMERS AND THEIR FARM WORKERS, AND IN 
TERMS OF THE ACTIONS TAKEN BY THE GOZ AFTER IT BEGAN 
"FAST-TRACK" IN JUNE.  REGARDING THE FARM INVASIONS THAT 
MUGABE CLAIMS HAVE BEEN THE INDEPENDENT ACTIONS OF 
FRUSTRATED LANDLESS BLACK ZIMBABWEANS, THE COURT STATES 
"THEY HAVE BEEN SUPPORTED, ENCOURAGED, TRANSPORTED AND 
FINANCED BY PARTY OFFICIALS, PUBLIC SERVANTS, THE CIO 
AND THE ARMY."  THE COURT ADDED THAT "COMMON LAW CRIMES 
HAVE BEEN, AND ARE BEING, COMMITTED WITH IMPUNITY.  LAWS 
MADE BY PARLIAMENT HAVE BEEN FLOUTED BY THE GOVERNMENT. 
THE ACTIVITIES OF THE PAST NINE MONTHS MUST BE 
CONDEMNED."  THE COURT ADDED THAT THE GOZ ADMITTED TO 
THE ABSENCE OF THE RULE OF LAW AS PART OF THE SUPREME 
 
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ACTION AF-00 
 
INFO  LOG-00   NP-00    AGRE-00  AID-00   AMAD-00  CIAE-00  COME-00 
      DODE-00  SRPP-00  DS-00    EB-00    EUR-00   VC-00    H-01 
      TEDE-00  INR-00   IO-00    L-00     VCE-00   AC-01    NSAE-00 
      OIC-02   OMB-01   OPIC-01  PA-00    PM-00    PRS-00   ACE-00 
      P-00     SP-00    STR-00   USIE-00  BBG-00   R-00     PMB-00 
      DSCC-00  PRM-02   DRL-02   G-00     NFAT-00  SAS-00     /010W 
                  ------------------B0C1E7  291135Z /38 
R 291134Z DEC 00 
FM AMEMBASSY HARARE 
TO SECSTATE WASHDC 7918 
INFO NSC WASHDC 
DEPT OF TREASURY WASHDC 
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 
AMEMBASSY NAIROBI 
 
C O N F I D E N T I A L SECTION 02 OF 02 HARARE 007286 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH 
TREASURY FOR OASIA/EBARBER, BHOFFMAN 
LONDON FOR CGURNEY 
PARIS FOR BISA WILLIAMS 
NAIROBI FOR PFLAUMER 
PASS USAID FOR AFR/SD - DWELLER, AFR/SA - CPALMA, 
NNEWMAN, AA/AFR 
 
USTR FOR ROSA WHITAKER 
 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  07286  02 OF 02  291135Z 
E.O. 12958: DECL 12/29/10 
TAGS: PHUM, PGOV, EAGR, EAID, ZI 
 
SUBJECT: SUPREME COURT RULES ON CFU LAND CASE, DECISION 
PROVIDES WIGGLE ROOM TO PRESIDENT MUGABE 
 
COURT CONSENT ORDER OF NOVEMBER 7 (REFTEL C). 
 
-------------------------------------- 
THE RULING GIVES WIGGLE ROOM TO MUGABE 
-------------------------------------- 
 
4. (C) THE COURT'S RULING INCLUDES A "HISTORICAL" 
SECTION THAT DETAILS PAST CAUSES OF THE LAND IMBALANCE 
BETWEEN WHITE AND BLACK ZIMBABWEANS, AND ESPOUSES THE 
LEGITIMATE NEED TO REDRESS THE IMBALANCE.  IN THE 
CONTEXT OF ALL THE "WICKED THINGS (THAT) HAVE BEEN DONE, 
AND CONTINUE TO BE DONE" BY THE GOZ IN THE NAME OF LAND 
REFORM SINCE FEBRUARY, THE COURT STATES "THAT DOES NOT 
MEAN THAT WE CAN IGNORE THE IMPERATIVE OF LAND REFORM. 
WE CANNOT PUNISH WHAT IS WRONG BY STOPPING WHAT IS 
RIGHT."  IN TERMS OF ONE OF THE MOST INTRACTABLE ISSUES, 
THAT OF WHAT TO DO WITH THE "THOUSANDS OF PEOPLE (THAT) 
HAVE BEEN PERMITTED AND ENCOURAGED TO INVADE PROPERTIES 
UNLAWFULLY," THE COURT BACKS AWAY FROM THE NOVEMBER 
CONSENT ORDER WHICH REQUIRED THEIR IMMEDIATE REMOVAL, BY 
STATING "EITHER THEIR PRESENCE MUST BE LEGALIZED, OR 
THEY MUST BE REMOVED."  PERHAPS THE MOST IMPORTANT 
DECISION GIVING PRESIDENT MUGABE SPACE FOR COMPROMISE IS 
THAT THE COURT ISSUED AN INTERDICT (INJUNCTION) 
PROHIBITING THE GOZ "FROM TAKING ANY FURTHER STEPS IN 
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THE ACQUISITION OF LAND FOR RESETTLEMENT," BUT POSTPONED 
ITS EFFECT UNTIL JULY 1, 2001 IN ORDER TO ENABLE THE GOZ 
TO "PRODUCE A WORKABLE PROGRAMME OF LAND REFORM" AND 
"SATISFY THIS COURT THAT THE RULE OF LAW HAS BEEN 
RESTORED IN THE COMMERCIAL FARMING AREAS OF ZIMBABWE." 
 
5. (C) COMMENT: IT IS CLEAR THAT THE SUPREME COURT FACED 
A TOUGH BALANCING ACT IN HEARING AND DECIDING ON THE 
CFU'S BROAD LAWSUIT AGAINST PRESIDENT MUGABE AND THE 
GOZ.  ON THE ONE HAND THE JUSTICES ABHOR THE BREAKDOWN 
OF LAW AND ORDER ON THE COMMERCIAL FARMS, INCLUDING THE 
LOSS OF LIFE, THAT MUGABE HAS PROMULGATED SINCE 
FEBRUARY.  ON THE OTHER HAND, THEY RECOGNIZE THE 
LEGITIMATE NEED FOR LAND REFORM AND THE PASSIONS AND 
DIVISIONS THAT THIS ISSUE ELICITS AMONG MANY 
ZIMBABWEANS.  BY CLEARLY RULING IN FAVOR OF THE CFU ON 
SPECIFIC LEGAL ISSUES, WHILE ALSO GIVING MUGABE AND THE 
GOZ UNTIL JULY OF 2001 TO CLEAN UP THE MESS THEY HAVE 
CREATED, THE COURT HAS, IN OUR OPINION, SKILLFULLY 
PROVIDED THE SPACE AND TIME THAT COULD ALLOW MUGABE TO 
FIND A FACE-SAVING WAY TO DECLARE THAT HE HAS FULFILLED 
HIS PROMISE OF LAND REFORM, WHILE AT THE SAME TIME FINDING A 
WAY TO RETURN TO THE PRINCIPLES AGREED TO AT THE 1998 
DONORS CONFERENCE AND TO THE RULE OF LAW ON THE 
COMMERCIAL FARMS.  MUGABE HAS NOT RESPONDED DIRECTLY TO 
THE RULING, ALTHOUGH IN ANTICIPATION OF ITS OUTCOME THE 
GOZ HAS BEEN WORKING ON A PROGRAM THAT, IT CLAIMS, 
FOLLOWS THE LAW.  THE PLAN IS NOT YET IN THE PUBLIC 
DOMAIN AND, AT THIS WRITING, NOT BEING IMPLEMENTED IN 
ANY SYSTEMATIC WAY ON THE GROUND.  END COMMENT. 
 
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IRVING 
 
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