US embassy cable - 01HARARE694

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 000694 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
LONDON FOR GURNEY 
PARIS FOR WILLIAMS 
NAIROBI FOR PFLAUMER 
 
PASS USAID FOR AFR/SA C. PALMA 
 
PASS USTR FOR ROSA WHITAKER 
 
E.O. 12958: DECL. 02/09/11 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  00694  01 OF 02  091143Z 
TAGS: PGOV, PHUM, PINS, PINR, ZI 
SUBJECT:  ANOTHER SUPREME COURT JUSTICE IS SHOWN THE DOOR 
 
REF:  HARARE 644 
 
CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING.  REASONS: 1.5 
(B) AND (D). 
 
SUMMARY 
------- 
 
1.  (C) AFTER FORCING SUPREME COURT CHIEF JUSTICE ANTHONY 
GUBBAY INTO EARLY RETIREMENT ON FEBRUARY 2 (REFTEL), THE 
GOVERNMENT HAS NOW TURNED ITS ATTENTION TO GUBBAY'S FOUR 
COLLEAGUES ON ZIMBABWE'S HIGHEST BENCH.  ON FEBRUARY 9, 
JUSTICE MINISTER PATRICK CHINAMASA ASKED FOR THE 
RESIGNATION OF JUSTICE NICHOLAS MCNALLY AND WAS EXPECTED TO 
MAKE THE SAME DEMAND LATER IN THE DAY OF JUSTICE AHMED 
IBRAHIM.  MCNALLY, WHO REACHES THE MANDATORY RETIREMENT AGE 
OF 70 IN DECEMBER OF THIS YEAR, IS INCLINED TO SUBMIT HIS 
RESIGNATION, CONVINCED THAT THE ONLY ALTERNATIVE IS FURTHER 
INTIMIDATION AND LIKELY PHYSICAL HARM BY THE GOVERNMENT'S 
SO-CALLED WAR VETERANS AND SUSPENSION OF HIS PENSION.  END 
SUMMARY. 
 
GO, OR ELSE 
----------- 
 
2.  (C) ZIMBABWEAN SUPREME COURT JUSTICE NICHOLAS MCNALLY 
(PROTECT) TOLD POLITICAL SECTION CHIEF ON FEBRUARY 9 THAT 
JUSTICE MINISTER PATRICK CHINAMASA HAD ASKED HIM EARLIER 
                       CONFIDENTIAL 
 
PAGE 03        HARARE  00694  01 OF 02  091143Z 
THAT DAY TO SUBMIT HIS RESIGNATION, EVEN THOUGH HE DOES NOT 
REACH THE MANDATORY RETIREMENT AGE OF 70 UNTIL DECEMBER OF 
THIS YEAR.  ASKED WHAT WOULD HAPPEN IF HE REFUSED, 
CHINAMASA SAID THE PRESIDENT DID NOT WANT MCNALLY TO GET 
HURT, BUT, IF HE DECLINED TO COMPLY WITH THE GOVERNMENT'S 
REQUEST, "THERE WILL BE AN UGLY CONFRONTATION." 
 
3.  (C) THE JUSTICE TOLD POLCHIEF HE IS INCLINED TO GIVE IN 
TO CHINAMASA'S ULTIMATUM.  ALTHOUGH MCNALLY WOULD FEEL 
TERRIBLE ABOUT "DESERTING" ZIMBABWEANS WHO RELY ON THE 
JUDICIARY TO BE AN EFFECTIVE CHECK ON THE EXECUTIVE, 
PARTICULARLY DURING THESE DIFFICULT TIMES, HE FELT AS 
THOUGH HE HAS LITTLE CHOICE.  THE JUSTICE IS CONVINCED 
THAT, IF HE WERE TO CHOOSE TO STAY ON, THE SO-CALLED WAR 
VETERANS WOULD BE DIRECTED TO INTENSIFY THEIR INTIMIDATION 
OF HIM AND LIKELY WOULD SEEK TO DO PHYSICAL HARM TO HIM OR 
HIS FAMILY.  IN ADDITION, MCNALLY SAID HE WILL BE DEPENDENT 
UPON HIS PENSION ONCE HE RETIRES, AND FEARS THAT THE 
GOVERNMENT MIGHT SIMPLY SUSPEND PAYMENT OF IT.  BESIDES, 
THE GOVERNMENT HAS MADE CLEAR ITS DETERMINATION TO 
CONTINUE TO IGNORE JUDICIAL RULINGS AND HAS NOW STOPPED 
BOTHERING EVEN TO APPEAR IN COURT TO ANSWER CLAIMS FROM 
FARMERS AND MEMBERS OF THE OPPOSITION.  A FURTHER 
CONSIDERATION IS THAT MCNALLY COULD NOT COUNTENANCE WORKING 
FOR GODFREY CHIDYAUSIKU, THE LIKELY CANDIDATE TO REPLACE 
ANTHONY GUBBAY AS CHIEF JUSTICE.  THE NORMALLY RESERVED 
MCNALLY CALLED THE PRO-ZANU-PF CHIDYAUSIKU A "SLIMY 
BASTARD."  CHINAMASA REPORTEDLY IS EYEING THE CHIEF JUSTICE 
POSITION HIMSELF, BUT MCNALLY THOUGHT CHIDYAUSIKU WAS THE 
ODDS-ON FAVORITE. 
 
                       CONFIDENTIAL 
 
PAGE 04        HARARE  00694  01 OF 02  091143Z 
4.  (C) MCNALLY SAID CHINAMASA WOULD BE MEETING LATER IN 
THE DAY WITH HIS COLLEAGUE, JUSTICE AHMED IBRAHIM, AND 
WOULD DEMAND HIS IMMEDIATE RESIGNATION AS WELL.  IBRAHIM IS 
ONLY 63, BUT MCNALLY THOUGHT HE WOULD BE INCLINED TO COMPLY 
WITH CHINAMASA'S DEMAND.  WHAT REMAINS UNCLEAR, MCNALLY 
OFFERED, IS WHETHER THE GOVERNMENT WOULD DEMAND THE 
DEPARTURE OF THE COURT'S TWO BLACK JUSTICES, AND WHETHER OR 
NOT THEY WOULD AGREE TO GO IF PRESSED. 
 
COMMENT 
------- 
 
5. (C) AFTER FORCING CHIEF JUSTICE GUBBAY INTO EARLY 
RETIREMENT ON FEBRUARY 2 (REFTEL), THE GOVERNMENT IS NOW 
INTIMIDATING HIS COLLEAGUES INTO STEPPING DOWN AS WELL. 
THE DEPARTURE OF ALL THREE JUDGES (TWO WHITE AND ONE OF 
ASIAN HERITAGE) WOULD KNOCK OUT 60 PERCENT OF THE SUPREME 
COURT IN A SEVEN-DAY PERIOD.  MCNALLY, WHO OPPOSED THE IAN 
SMITH REGIME AND HAS SERVED ON THE SUPREME COURT SINCE 
1984, CLEARLY RESENTED THE GOVERNMENT'S PRESSURE, BUT 
ENSURING HIS PERSONAL SAFETY AND THAT OF HIS FAMILY, ALONG 
WITH THE NEED TO PRESERVE HIS FINANCIAL SECURITY IN 
RETIREMENT, PROVIDE COMPELLING REASONS TO GO.  THESE 
DEPARTURES, HOWEVER, DRIVE THE STAKE FURTHER INTO THE HEART 
OF THE RULE OF LAW HERE, AND REMOVES THE ONLY GENUINE CHECK 
 
                       CONFIDENTIAL 
 
                           CONFIDENTIAL     PTQ0024 
 
PAGE 01        HARARE  00694  02 OF 02  091143Z 
ACTION AF-00 
 
INFO  LOG-00   NP-00    AID-00   AMAD-00  ACQ-00   CIAE-00  DINT-00 
      DODE-00  DOTE-00  SRPP-00  DS-00    EB-00    EUR-00   FAAE-00 
      FBIE-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    SSO-00   STR-00 
      TRSE-00  USIE-00  PMB-00   DSCC-00  PRM-01   DRL-02   G-00 
      NFAT-00  SAS-00   SWCI-00    /009W 
                  ------------------C364B2  091143Z /38 
O 091144Z FEB 01 
FM AMEMBASSY HARARE 
TO SECSTATE WASHDC IMMEDIATE 8201 
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 000694 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
LONDON FOR GURNEY 
PARIS FOR WILLIAMS 
NAIROBI FOR PFLAUMER 
 
PASS USAID FOR AFR/SA C. PALMA 
 
PASS USTR FOR ROSA WHITAKER 
 
E.O. 12958: DECL. 02/09/11 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  00694  02 OF 02  091143Z 
TAGS: PGOV, PHUM, PINS, PINR, ZI 
SUBJECT:  ANOTHER SUPREME COURT JUSTICE IS SHOWN THE DOOR 
 
ON A PRESIDENT DETERMINED TO RETAIN POWER AT ALL AND ANY 
COSTS.  END COMMENT. 
 
IRVING 
 
                       CONFIDENTIAL 
 
>