US embassy cable - 01HARARE918

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 000918 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
 
LONDON FOR CHARLES GURNEY 
 
PARIS FOR BISA WILLIAMS 
 
NAIROBI FOR TERRY PFLAUMER 
 
PASS USTR FOR ROSA WHITAKER 
 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  00918  01 OF 02  051503Z 
E.O. 12958: DECL: 03/05/11 
TAGS: PGOV, PHUM, PINS, PINR, ZI 
SUBJECT: ZIMBABWE GOVERNMENT AND CHIEF JUSTICE REACH NEW 
AGREEMENT ON CHIEF JUSTICE'S DEPARTURE 
 
REFS: A) HARARE 861, B) HARARE 644 
 
CLASSIFIED BY CHARGE D'AFFAIRES EARL M. IRVING FOR 
REASONS: 1.5 (B) AND (D). 
 
1.  (U) A LOOMING SHOWDOWN BETWEEN ZIMBABWE'S EMBATTLED 
CHIEF JUSTICE ANTHONY GUBBAY AND THE GOVERNMENT OF 
ZIMBABWE (GOZ) WAS AVERTED MARCH 2 WHEN GUBBAY AGREED TO 
THE APPOINTMENT OF AN ACTING CHIEF JUSTICE, AND THE GOZ 
AGREED TO RETAIN GUBBAY'S JUDICIAL PRIVILEGES AND 
REFRAIN FROM DEMANDING THE RESIGNATION OF MORE JUSTICES. 
GUBBAY DEFIED GOVERNMENT ATTEMPTS TO REMOVE HIM EARLY 
WHEN HE SHOWED UP FOR WORK ON MARCH 1.  JUSTICE MINISTER 
PATRICK CHINAMASA HAD SAID GUBBAY'S TERM WOULD END ON 
MIDNIGHT FEBRUARY 28 AND THAT HE WOULD HAVE TO MOVE OUT 
OF HIS OFFICES AND OFFICIAL RESIDENCE BY MARCH 9 (REF 
A).  GUBBAY HAD TOLD CHINAMASA THAT GOVERNMENT'S 
INTENTION TO APPOINT AN ACTING CHIEF JUSTICE WAS ON 
DUBIOUS LEGAL GROUNDS AND IN CONTRAVENTION OF GUBBAY'S 
ORIGINAL TERMS OF DEPARTURE AS AGREED ON FEBRUARY 2 (REF 
B). 
 
2.  (C) ACCORDING TO MORDECAI MAHLANGU, GUBBAY'S 
ATTORNEY, THE CHIEF JUSTICE "GOT MORE THAN EXPECTED" 
FROM THE NEW AGREEMENT AND IS REASONABLY HAPPY WITH THE 
TERMS OF HIS DEPARTURE.  GUBBAY WILL REMAIN AS CHIEF 
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PAGE 03        HARARE  00918  01 OF 02  051503Z 
JUSTICE THROUGH JUNE 30 (AS ORIGINALLY AGREED), AND WILL 
GO ON LEAVE FROM NOW UNTIL HE RETIRES.  GUBBAY WILL 
RETAIN HIS OFFICIAL VEHICLE AND OFFICES UNTIL JUNE 30, 
AND HIS OFFICIAL RESIDENCE UNTIL DECEMBER 31, MAHLANGU 
TOLD US.  GUBBAY WILL ALSO BE PAID HIS NORMAL SALARY 
DURING HIS LEAVE, AND WILL RECEIVE HIS NORMAL PENSION 
AFTER RETIREMENT.  THESE WERE PARAMOUNT CONCERNS OF 
GUBBAY, ACCORDING TO HIS ATTORNEY, BECAUSE SOME JUSTICES 
PERCEIVED AS ANTI-GOVERNMENT WERE DRIVEN INTO POVERTY 
AFTER THEIR RETIREMENT. 
 
3.  (C) THERE ARE TWO IMPORTANT POINTS OF THE AGREEMENT 
THAT WERE NOT PART OF THE ORIGINAL TERMS OF DEPARTURE, 
ACCORDING TO MAHLANGU.  THEY ARE:  1) THE GOZ HAS AGREED 
NOT TO ACT UNLAWFULLY TOWARD THE REMAINING JUSTICES, 
I.E. NOT TO FORCE THEIR EARLY RETIREMENT THROUGH ILLEGAL 
MEANS (COMMENT: PRESUMABLY THIS MEANS THE GOZ COULD 
STILL APPOINT TRIBUNALS TO INVESTIGATE THE JUSTICES, AND 
IT PROBABLY WILL.  END COMMENT.), AND 2) GUBBAY WILL BE 
PERMITTED TO ACT ON BEHALF OF OR DEFEND THE REMAINING 
JUDGES WHILE HE REMAINS IN OFFICE.  ACCORDING TO THE 
CONSTITUTION, ONLY THE CHIEF JUSTICE CAN RECOMMEND TO 
THE PRESIDENT THAT A TRIBUNAL BE SET UP TO INVESTIGATE 
THE REMOVAL OF A JUDGE.  (COMMENT: THE CONSTITUTION 
MAKES NO PROVISION FOR AN ACTING CHIEF JUSTICE'S POWERS 
IN RECOMMENDING A TRIBUNAL, NOR IS IT CLEARLY DEFINED IN 
GUBBAY'S AGREEMENT.  THIS IS LIKELY TO BE A MAJOR POINT 
OF CONTENTION IN THE FUTURE.  END COMMENT.)  GUBBAY WILL 
ALSO REMAIN A MEMBER OF THE JUDICIAL SERVICE COMMISSION, 
WHICH OVERSEES THE JUDICIARY AND APPROVES APPOINTMENTS, 
AND HE COULD INTERVENE ON BEHALF OF OTHER JUDGES THROUGH 
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THIS BODY.  IF THE GOZ BREACHES ANY OF THESE PROVISIONS, 
THE WHOLE AGREEMENT WILL BECOME NULL AND VOID, THE 
ATTORNEY SAID. 
 
4.  (C) AS PART OF THE AGREEMENT, GUBBAY RELENTED ON THE 
GOZ'S DEMAND TO APPOINT AN ACTING CHIEF JUSTICE WHILE HE 
IS ON LEAVE, GUBBAY'S ATTORNEY TOLD US.  MAHLANGU SAID 
MUGABE ALMOST CERTAINLY WILL APPOINT THE ZANU-PF- 
FRIENDLY GODFREY CHIDYAUSIKU AS ACTING CHIEF JUSTICE IN 
THE VERY NEAR FUTURE.  GUBBAY EVENTUALLY AGREED TO THE 
APPOINTMENT OF AN ACTING CHIEF JUSTICE BECAUSE, AS THE 
LAW STIPULATES, ALL CONSTITUTIONAL DECISIONS MUST BE 
MADE UNANIMOUSLY BY THE FIVE-JUSTICE BENCH, AND 
CHIDYAUSIKU CANNOT MAKE IMPORTANT RULINGS WITHOUT THE 
CONSENT OF THE REMAINING FOUR INDEPENDENT JUSTICES. 
FURTHERMORE, ALL APPEAL DECISIONS MUST BE MADE BY A 
MINIMUM OF THREE JUSTICES, ACCORDING TO THE 
CONSTITUTION.  (COMMENT: ASSUMING AN ACTING CHIEF 
JUSTICE IS PLACE, GUBBAY WILL NO LONGER HEAR JUDICIAL 
CASES OR WEIGH IN ON RULINGS.  END COMMENT.) 
 
5.  (C) AS AN ADDED ELEMENT OF DRAMA, SELF-STYLED FARM 
OCCUPATIONS LEADER JOSEPH CHINOTIMBA PAID GUBBAY A VISIT 
ON MARCH 1 AT THE LATTER'S SUPREME COURT OFFICES. 
ACCORDING TO MAHLANGU, CHINOTIMBA SOMEHOW GOT PAST 
 
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                           CONFIDENTIAL     PTQ2297 
 
PAGE 01        HARARE  00918  02 OF 02  051504Z 
ACTION AF-00 
 
INFO  LOG-00   NP-00    AID-00   AMAD-00  ACQ-00   CIAE-00  INL-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 
      LAB-01   L-00     VCE-00   AC-01    DCP-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    /011W 
                  ------------------CDC0F3  051504Z /38 
O 051501Z MAR 01 
FM AMEMBASSY HARARE 
TO SECSTATE WASHDC IMMEDIATE 8353 
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 000918 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
 
LONDON FOR CHARLES GURNEY 
 
PARIS FOR BISA WILLIAMS 
 
NAIROBI FOR TERRY PFLAUMER 
 
PASS USTR FOR ROSA WHITAKER 
 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  00918  02 OF 02  051504Z 
E.O. 12958: DECL: 03/05/11 
TAGS:  PGOV, PHUM, PINS, PINR, ZI 
SUBJECT: ZIMBABWE GOVERNMENT AND CHIEF JUSTICE REACH NEW 
AGREEMENT ON CHIEF JUSTICE'S DEPARTURE 
 
SECURITY CHECKPOINTS AND ENTERED THE SUPREME COURT 
BUILDING LOBBY.  FROM AN INTERNAL PHONE, HE CALLED 
GUBBAY AND DEMANDED THAT HE GIVE HIM THE KEYS TO HIS 
OFFICIAL MERCEDES.  GUBBAY REFUSED, AND CHINOTIMBA WAS 
EVENTUALLY REMOVED FROM THE BUILDING WITHOUT INCIDENT. 
WHEN THE CHIEF JUSTICE MENTIONED THIS INCIDENT TO 
JUSTICE MINISTER CHINAMASA, THE MINISTER RESPONDED THAT 
HE DID NOT HAVE ANY CONTROL OVER CHINOTIMBA AND THAT HE 
MUST HAVE BEEN ACTING ON HIS OWN. 
 
6.  (C) COMMENT: THIS LAST MINUTE AGREEMENT BETWEEN THE 
GOZ AND CHIEF JUSTICE IS PROBABLY THE BEST THAT BOTH 
COULD HAVE EXPECTED UNDER THE CIRCUMSTANCES.  GUBBAY 
AVOIDS A NASTY CONFRONTATION AND POTENTIALLY BEING 
THROWN OUT ON THE STREETS, AND THE GOZ AVOIDS AN EVEN 
GREATER INTERNATIONAL UPROAR OVER ITS BRUTISH HANDLING 
OF GUBBAY'S DEPARTURE.  MORE LEGAL BATTLES COULD BE ON 
THE HORIZON, HOWEVER, BECAUSE THE LANGUAGE OF THE 
AGREEMENT IS NOT SPECIFIC ON "UNLAWFUL" GOVERNMENT 
ACTIONS TOWARD THE JUDICIARY, AND THE CONSTITUTION IS 
VERY BROAD ON THE ESTABLISHMENT OF TRIBUNALS TO CONSIDER 
THE REMOVAL OF JUSTICES.  THE GOZ IS EAGER TO HAVE ITS 
PROTEGE CHIDYAUSIKU BEGIN TURNING BACK THE LEGAL ACTIONS 
THAT HAVE HINDERED ITS "FAST-TRACK" RESETTLEMENT 
EXERCISE, AND IN ALL LIKELIHOOD WILL NOT LET A PIECE OF 
PAPER SIGNED BY GUBBAY AND CHINAMASA STAND IN ITS WAY. 
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END COMMENT. 
 
IRVING 
 
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