US embassy cable - 01HARARE354

C O N F I D E N T I A L HARARE 000354 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR GSMITH 
LONDON FOR CGURNEY 
PARIS FOR BWILLIAMS 
NAIROBI FOR PFLAUMER 
 
PASS USAID FOR A/AID RMCCALL, AA/AFR VDERRYCK, AND 
AFR/SA - CPALMA 
 
PASS USTR FOR ROSA WHITAKER 
 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  00354  181611Z 
E.O. 12958: DECL 01/18/11 
TAGS: PGOV, PHUM, PINS, ZI 
SUBJECT: CHIEF JUSTICE GUBBAY PUBLICLY REPRIMANDS HIGH 
COURT JUDGE PRESIDENT CHIDYAUSIKU 
 
 
CLASSIFIED BY CHARGE D' AFFAIRES EARL M. IRVING FOR 
REASONS 1.5 (B/D). 
 
REFS: A. HARARE 00246, B. HARARE 00106 
 
1. (U) ON JANUARY 17, THE CHIEF JUSTICE OF THE SUPREME 
COURT, ANTHONY GUBBAY, PUBLICLY REPRIMANDED THE JUDGE 
PRESIDENT OF THE HIGH COURT, GODFREY CHIDYAUSIKU, FOR 
ATTACKING GUBBAY HIMSELF, THE SUPREME COURT, AND OTHER 
JUDGES OF THE HIGH COURT FOR RULING AGAINST THE 
GOVERNMENT OF ZIMBABWE (GOZ) ON THE ISSUE OF LAND. 
CHIDYAUSIKU ASSAILED THE SUPREME COURT CHIEF JUSTICE 
WHILE SPEAKING AT THE OPENING OF THE JUDICIAL YEAR IN 
THE BULAWAYO HIGH COURT ON JANUARY 8 (REF A).  GUBBAY 
REJECTED CHIDYAUSIKU'S CONTENTION THAT THE COURTS HAVE 
NO BUSINESS RULING ON THE GOZ'S "FAST-TRACK" 
RESETTLEMENT PLAN BECAUSE IT IS A POLITICAL, NOT A 
LEGAL, ISSUE.  "SUCH AN ATTITUDE," GUBBAY SAID, 
"CONFLICTS WITH THE RULE OF LAW AND HIS OATH OF OFFICE." 
GUBBAY ALSO DISMISSED A CONCERN EXPRESSED BY CHIDYAUSIKU 
THAT THE SUPREME COURT HAD OVERTURNED ONE OF HIS 
DECISIONS, POINTING OUT SIMPLY THAT EVEN A LAYMAN 
UNDERSTANDS THAT THE SUPREME COURT HAS THE AUTHORITY TO 
REVERSE THE RULINGS OF HIGH COURT JUDGES. 
 
2. (U) GUBBAY'S STATEMENT FINISHED WITH THE DECLARATION 
                       CONFIDENTIAL 
 
PAGE 03        HARARE  00354  181611Z 
THAT "AFTER ANXIOUS CONSIDERATION, I AM OF THE VIEW THAT 
THE JUDGE PRESIDENT'S CONDUCT DOES NOT YET 
WARRANT...ADVICE TO HIS EXCELLENCY THE PRESIDENT, THAT 
HIS REMOVAL OUGHT TO BE INVESTIGATED.  NONETHELESS IT IS 
DESERVING OF A SEVERE REPRIMAND."  GUBBAY ADDED FURTHER 
THAT "IN THE TENSE SITUATION PREVAILING IN ZIMBABWE AT 
PRESENT, THE JUDGE PRESIDENT SHOULD AVOID MAKING 
INFLAMMATORY STATEMENTS."  HE CONCLUDED WITH THE COMMENT 
THAT THE SUPREME COURT BENCH FULLY SUPPORTED THE 
ISSUANCE OF HIS STATEMENT. 
 
3. (C) COMMENT: THIS WAS AN UNUSUAL PUBLIC EXCHANGE OF 
RHETORICAL VOLLEYS BETWEEN TWO SENIOR MEMBERS OF THE 
BENCH.  GUBBAY'S COMMENTS REFLECT ANGER WITH 
CHIDYAUSIKU'S OUTRAGEOUS ATTACK ON THE LEGITIMATE ROLE 
OF THE COURTS, AND ARE, MORE GENERALLY, A RESPONSE TO 
THE INCREASING EXECUTIVE BRANCH CRITICISM OF THE 
JUDICIARY AND ITS INDEPENDENCE.  CHIDYAUSIKU HAS MADE IT 
CLEAR THAT HE IS WILLING TO CARRY ZANU-PF'S WATER AND A 
NUMBER OF LEGAL OBSERVERS HAVE TOLD US MUGABE WANTS TO 
REPLACE GUBBAY WITH CHIDYAUSIKU WHEN THE FORMER RETIRES 
IN APRIL 2002.  ONE PROMINENT JUDGE TOLD US 
CHIDYAUSIKU'S SPEECH WAS INTENDED AS A TRAP TO FORCE 
GUBBAY TO CALL FOR AN INVESTIGATION OF THE HIGH COURT 
JUDGE PRESIDENT.  ACCORDING TO OUR CONTACT, SUCH A CALL 
COULD HAVE GIVEN PRESIDENT MUGABE A CONSTITUTIONAL 
PROVISION TO USE TO REPLACE GUBBAY NOW WITH CHIDYAUSIKU, 
IN THE NAME OF JUDICIAL HARMONY.  GUBBAY AVOIDED THE 
TRAP BY REPRIMANDING CHIDYAUSIKU INSTEAD OF CALLING FOR 
AN INVESTIGATION.  END COMMENT. 
 
                       CONFIDENTIAL 
 
PAGE 04        HARARE  00354  181611Z 
IRVING 
 
                       CONFIDENTIAL 
 
>