US embassy cable - 01HARARE392

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 000392 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH 
LONDON FOR GURNEY 
PARIS FOR WILLIAMS 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL. 01/19/11 
TAGS: PGOV, PHUM, PINS, ZI 
SUBJECT:  SUPREME COURT HEARS MDC CHALLENGE OF MUGABE 
ELECTORAL DECREE 
 
 
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PAGE 02        HARARE  00392  01 OF 02  191332Z 
REF: A) 00 HARARE 6955 
 
CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING.  REASONS: 1.5 
(B) AND (D). 
 
SUMMARY 
------- 
 
1.  (C) ON JANUARY 19, ZIMBABWE'S SUPREME COURT HEARD 
ARGUMENTS IN THE CASE BROUGHT BY THE OPPOSITION MOVEMENT 
FOR DEMOCRATIC CHANGE (MDC) AGAINST PRESIDENT MUGABE'S 
RECENTLY-ISSUED DECREE PROHIBITING THE NULLIFICATION OF THE 
ELECTION OF ANY MEMBER OF PARLIAMENT.  THE MDC ATTORNEY 
ARGUED PERSUASIVELY THAT THE DECREE SHOULD BE STRUCK DOWN 
BECAUSE IT PURPORTS TO LEGITIMIZE ELECTIONS WHICH WERE NOT 
FREE AND FAIR, IN VIOLATION OF THE ELECTORAL ACT, AND 
BECAUSE IT SEEKS TO BLOCK JUDICIAL ACCESS TO AGGRIEVED 
PARTIES WHOSE CIVIL RIGHTS MAY HAVE BEEN VIOLATED, IN 
CONTRAVENTION OF THE CONSTITUTION.  THE PRESIDING JUSTICES 
GREETED WITH SKEPTICISM THE GOVERNMENT'S ARGUMENTS THAT THE 
CASE BELONGED IN THE HIGH COURT, NOT THE SUPREME COURT, AND 
THAT PARLIAMENT'S LEGAL COMMITTEE SHOULD BE GIVEN TIME TO 
EXAMINE THE PRESIDENTIAL DECREE.  AFTER THE PRESENTATION OF 
ORAL ARGUMENTS, CHIEF JUSTICE GUBBAY MADE NO COMMITMENT 
ABOUT WHEN THE COURT'S DECISION WILL BE HANDED DOWN, BUT, 
GIVEN THE SIGNIFICANCE OF THE CASE, WE EXPECT A RULING 
WITHIN A MATTER OF DAYS.  END SUMMARY. 
 
JANUARY 19 HEARING 
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2.  (U)  THE SUPREME COURT ON JANUARY 19 HEARD THE MDC'S 
CHALLENGE OF PRESIDENT MUGABE'S RECENT DECREE AMENDING THE 
ELECTORAL ACT.  AS REPORTED IN REFTEL, MUGABE'S DECREE, 
ISSUED ON DECEMBER 8, PROHIBITED THE NULLIFICATION OF THE 
ELECTION OF ANY MEMBER OF PARLIAMENT, EFFECTIVELY DERAILING 
THE MDC'S LEGAL CHALLENGES TO THE RESULTS IN 38 
CONSTITUENCIES IN LAST JUNE'S PARLIAMENTARY ELECTIONS. 
POLOFF WAS IN THE PACKED COURTROOM, WHICH ALSO INCLUDED 
EDDISON ZVOBGO, A LONG-TIME ZANU-PF STALWART WHO WAS EXPELLED 
FROM THE PARTY POLITBURO IN DECEMBER, AND JOURNALISTS FROM 
THE NEW YORK TIMES AND BBC. 
 
MDC'S ARGUMENTS 
--------------- 
 
3.  (U) THE MDC'S LEAD ATTORNEY, CHRIS ANDERSEN, URGED THAT 
THE PRESIDENT'S DECREE BE STRUCK DOWN IMMEDIATELY, BECAUSE 
IT VIOLATED BOTH THE ELECTORAL ACT AND ZIMBABWE'S 
CONSTITUTION.  THE ELECTORAL ACT, ANDERSEN EXPLAINED, 
REQUIRES THAT ANY ELECTION MUST BE FREELY AND FAIRLY 
CONDUCTED.  HE POINTED OUT, HOWEVER, THAT THE ELECTION HAD 
NOT BEEN CONSISTENT WITH THAT STANDARD, BUT INSTEAD HAD 
BEEN FRAUGHT WITH SERIOUS IRREGULARITIES, INCLUDING MURDER, 
BEATINGS, AND BALLOT-BOX RIGGING.  ANDERSEN QUOTED FROM THE 
FINAL REPORT OF THE COMMONWEALTH OBSERVER TEAM, WHICH 
CHARACTERIZED THE ELECTION AS MARRED BY A SYSTEMATIC 
GOVERNMENT-ORGANIZED CAMPAIGN OF VIOLENCE AND INTIMIDATION. 
A FURTHER CONSIDERATION FOR THE COURT, ANDERSEN CONTINUED, 
IS THAT THE PRESIDENT HAD A DIRECT PERSONAL INTEREST IN THE 
RESULTS OF THE JUNE ELECTION.  ALLOWING THE PRESIDENT'S 
DECREE TO STAND, THEREFORE, WOULD BE TANTAMOUNT TO 
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PERMITTING ONE WITH A PERSONAL INTEREST IN A PARTICULAR 
OUTCOME TO REFEREE A SOCCER MATCH. 
 
4.  (U) ZIMBABWE'S CONSTITUTION, ANDERSEN CONTINUED, 
ENSHRINES IN THE JUDICIARY THE POWER TO ARBITRATE 
COMPLAINTS FROM CITIZENS ALLEGING CIVIL RIGHTS VIOLATIONS. 
SINCE THE ELECTORAL DECREE SEEKS TO BLOCK ACCESS TO THE 
COURTS FOR THE VICTIMS OF THE VIOLENCE ASSOCIATED WITH THE 
PARLIAMENTARY ELECTION, IT CLEARLY IS UNCONSTITUTIONAL, 
ANDERSEN ALLEGED.   ANDERSEN MAINTAINED THAT, EVEN IF THE 
JUSTICES WERE TO DISAGREE THAT THE DECREE WAS 
UNCONSTITUTIONAL OR VIOLATED THE ELECTORAL ACT, HE HOPED 
THEY WOULD AGREE THAT, IN ISSUING IT, THE PRESIDENT 
SUBVERTED BOTH THE CONCEPT AND PRACTICE OF DEMOCRACY AS IT 
IS UNDERSTOOD IN THE MODERN WORLD. 
 
THE GOVERNMENT'S ARGUMENTS 
-------------------------- 
 
5.  (U)  THE GOVERNMENT RETAINED AS ITS LEAD ATTORNEY A 
SOUTH AFRICAN -- MR. CASSIM (AS HEARD) -- INSTEAD OF 
FOLLOWING THE NORMAL PRACTICE OF USING ONE OF ITS OWN 
LAWYERS IN THE ATTORNEY-GENERAL'S OFFICE, A DECISION WHICH 
ELICITED SOME CRITICISM IN THE INDEPENDENT PRESS.  CASSIM 
MADE TWO ESSENTIAL ARGUMENTS.  FIRST, THAT THE ELECTORAL 
 
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INFO  LOG-00   NP-00    AID-00   AMAD-00  ACQ-00   CIAE-00  DINT-00 
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      H-01     TEDE-00  INR-00   IO-00    LAB-01   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    SSO-00   STR-00   TRSE-00 
      USIE-00  PMB-00   DSCC-00  PRM-02   DRL-02   G-00     NFAT-00 
      SAS-00   SWCI-00    /011W 
                  ------------------B89C97  191332Z /38 
O 191331Z JAN 01 
FM AMEMBASSY HARARE 
TO SECSTATE WASHDC IMMEDIATE 8043 
INFO NSC WASHDC IMMEDIATE 
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 
AMEMBASSY NAIROBI 
 
C O N F I D E N T I A L SECTION 02 OF 02 HARARE 000392 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH 
LONDON FOR GURNEY 
PARIS FOR WILLIAMS 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL. 01/19/11 
TAGS: PGOV, PHUM, PINS, ZI 
SUBJECT:  SUPREME COURT HEARS MDC CHALLENGE OF MUGABE 
ELECTORAL DECREE 
 
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PAGE 02        HARARE  00392  02 OF 02  191332Z 
ACT GIVES THE PRESIDENT THE AUTHORITY TO ISSUE REGULATIONS 
RELATING TO ELECTIONS.  THE IMPROPER USE OF THAT AUTHORITY, 
HE ARGUED, WAS A LEGITIMATE SUBJECT OF DEBATE, BUT ONE THAT 
SHOULD BE HEARD IN THE HIGH COURT, NOT THE SUPREME COURT, 
AS IT DID NOT INVOLVE CONSTITUTIONAL QUESTIONS.  TWO OF THE 
FIVE JUSTICES STRONGLY OBJECTED TO CASSIM'S CONTENTION THAT 
THE SUPREME COURT DID NOT HAVE JURISDICTION IN THIS CASE. 
CASSIM'S SECOND POINT WAS TO URGE THE COURT, IF IT DECIDED 
THAT THE CASE DID POSE LEGITIMATE CONSTITUTIONAL ISSUES, TO 
REFRAIN FROM HEARING IT UNTIL PARLIAMENT'S LEGAL COMMITTEE 
HAD FINISHED EXAMINING THE LEGALITY OF MUGABE'S DECREE. 
SEVERAL JUSTICES DISAGREED WITH THE ARGUMENT THAT THE COURT 
SHOULD WAIT FOR PARLIAMENT TO CONSIDER THE ISSUE, STRESSING 
THAT THESE WERE TWO INDEPENDENT PROCESSES THAT COULD HAPPEN 
SIMULTANEOUSLY. 
 
COMMENT 
------- 
 
6.  (C) THE STAKES ARE EXTREMELY HIGH IN THIS CASE, 
EVIDENCED BY THE PRESENCE OUTSIDE THE COURT OF THREE 
GOVERNMENT MINISTERS -- JONATHAN MOYO OF INFORMATION AND 
PUBLICITY, JOSEPH MADE OF LANDS, AGRICULTURE, AND 
RESETTLEMENT, AND IGNATIUS CHOMBO OF LOCAL GOVERNMENT, 
PUBLIC WORKS, AND NATIONAL HOUSING -- ATTEMPTING TO SPIN 
MEMBERS OF THE PRESS.  MANY OBSERVERS SAID THEY FELT SORRY 
FOR CASSIM, AS HE HAD A VERY TALL, PERHAPS IMPOSSIBLE, TASK 
IN DEFENDING THE GOVERNMENT'S POSITION.  CHIEF JUSTICE 
GUBBAY MADE NO COMMITMENT ABOUT WHEN A RULING MIGHT BE 
HANDED DOWN, BUT WE EXPECT IT WILL BE IN A MATTER OF DAYS, 
GIVEN THE IMPORTANCE OF THE CASE.  JUDGING FROM THE STRONG 
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SKEPTICISM WITH WHICH THE JUSTICES GREETED CASSIM'S 
ARGUMENTS (SEVERAL EVEN ROLLED THEIR EYES AS HE MADE HIS 
POINTS), WE ANTICIPATE THE COURT WILL OVERTURN THE DECREE. 
SUCH A RULING WOULD PERMIT THE MDC'S CHALLENGES TO THE 
RESULTS IN 38 CONSTITUENCIES TO MOVE FORWARD IN THE HIGH 
COURT, AND THE MDC WOULD HAVE TO WIN ONLY 20 OF THOSE SEATS 
TO SECURE A MAJORITY IN PARLIAMENT.  A SUPREME COURT RULING 
IN FAVOR OF THE MDC, HOWEVER, WOULD BE ONLY HALF THE 
BATTLE, AS THE JUDGE PRESIDENT OF THE HIGH COURT, GODFREY 
CHIDAYAUSIKU, IS CLOSELY ALLIED WITH ZANU-PF AND WILL DO 
ALL HE CAN TO DELAY ACTION ON THE ELECTORAL CHALLENGES. 
 
IRVING 
 
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