US embassy cable - 01HARARE1018

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 001018 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
LONDON FOR GURNEY 
PARIS FOR WILLIAMS 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL. 03/14/11 
TAGS: PGOV, PHUM, PINR, ZI 
SUBJECT:  ZIMBABWE: CHIDYAUSIKU SWORN IN AS ACTING CHIEF 
JUSTICE 
 
 
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REF: A) HARARE 918  B) HARARE 861  C) HARARE 644 
 
CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING.  REASONS: 1.5 
(B) AND (D). 
 
ACTING CHIEF JUSTICE SWORN IN 
----------------------------- 
 
1.  (U) IN A LONG-EXPECTED MOVE, PRESIDENT MUGABE SWORE IN 
HIGH COURT JUDGE PRESIDENT GODFREY CHIDYAUSIKU AS ACTING 
CHIEF JUSTICE OF THE ZIMBABWEAN SUPREME COURT ON MARCH 13. 
CHIDYAUSIKU WILL SERVE IN AN ACTING CAPACITY AT LEAST UNTIL 
THE FORMAL RETIREMENT OF CHIEF JUSTICE ANTHONY GUBBAY, 
CURRENTLY ON LEAVE UNTIL JUNE 30.  THE CEREMONY AT STATE 
HOUSE WAS ATTENDED BY GUBBAY'S FOUR COLLEAGUES ON THE BENCH 
-- BUT NOT GUBBAY HIMSELF -- JUDGES FROM THE HIGH COURT, 
JUSTICE MINISTER PATRICK CHINAMASA, OTHER CABINET 
MINISTERS, AND ATTORNEY-GENERAL ANDREW CHIGOVERA.  THE 
EVENT RECEIVED PROMINENT COVERAGE IN THE GOVERNMENT- 
CONTROLLED PRINT AND BROADCAST MEDIA. 
 
COMMENT 
------- 
 
2.  (C) THE GOVERNMENT'S INTENTION TO REPLACE GUBBAY WITH 
THE PRO-ZANU-PF CHIDYAUSIKU HAS LONG BEEN AN OPEN SECRET, 
AND THE CHIEF JUSTICE'S MARCH 2 AGREEMENT WITH THE GOZ 
CONCERNING HIS EARLY RETIREMENT (REF A) MADE THIS POSSIBLE. 
TWO PRIMARY QUESTIONS NOW REMAIN UNANSWERED: WILL 
CHIDYAUSIKU, DURING HIS THREE-AND-A-HALF MONTHS AS ACTING 
CHIEF JUSTICE, BE ABLE TO HELP DISLODGE HIS FOUR NEW 
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COLLEAGUES, AND WILL HE REPLACE GUBBAY PERMANENTLY WHEN THE 
CHIEF JUSTICE FORMALLY RETIRES ON JUNE 30? 
 
3.  (C) THE FIRST QUESTION IS OPEN TO INTERPRETATION, AS 
NEITHER THE CONSTITUTION NOR HISTORICAL PRECEDENT ADDRESSES 
THE POWERS EXERCISED BY AN ACTING CHIEF JUSTICE WHILE THE 
CHIEF JUSTICE IS COMPETENT AND REMAINS IN THE COUNTRY. 
GUBBAY'S VIEW, AS ELABORATED ON MARCH 10 TO VISITING AF 
A/PDAS MARK BELLAMY, WAS THAT ONLY GUBBAY -- UNTIL HIS 
RETIREMENT -- HAS THE AUTHORITY TO RECOMMEND TO THE 
PRESIDENT CONVOCATION OF A TRIBUNAL TO INVESTIGATE THE 
EXPULSION OF JUDGES FROM THE BENCH.  STERNFORD MOYO, 
PRESIDENT OF THE LAW SOCIETY OF ZIMBABWE, AGREED WITH 
GUBBAY, TELLING US ON MARCH 14 THAT, DURING THIS INTERIM 
PERIOD, CHIDYAUSIKU'S RECOMMENDING ESTABLISHMENT OF A 
TRIBUNAL ON HIS OWN -- WITHOUT CONSULTING GUBBAY -- WOULD 
BE UNCONSTITUTIONAL.  PRESIDENT MUGABE AND HIS ADVISORS 
LIKELY WILL TAKE THE OPPOSITE VIEW, AS THEY ARE ANXIOUS TO 
REPLACE THE COURT'S INDEPENDENT-MINDED JURISTS WITH JUDGES 
MORE WILLING TO GIVE THE GOVERNMENT A PASS ON THE RULE OF 
LAW. 
 
4.  (C) GUBBAY SURMISED TO BELLAMY THAT, SINCE THE TRIBUNAL 
ROUTE IS SO FRAUGHT WITH CONSTITUTIONAL PITFALLS AND SINCE 
CHIDYAUSIKU CANNOT ALONE CARRY ZANU-PF'S WATER, MUGABE 
LIKELY WOULD TAKE THE EASIER -- AND LEGAL -- PATH OF SIMPLY 
PACKING THE COURT WITH ADDITIONAL, POLITICALLY SYMPATHETIC 
JUDGES.  WE HAVE HEARD THAT JUSTICE MINISTER PATRICK 
CHINAMASA HAS QUIETLY APPROACHED SEVERAL BLACK LAWYERS 
ABOUT ACCEPTING JUDICIAL APPOINTMENTS, ALTHOUGH IT IS 
UNCLEAR FOR WHICH COURT HE WAS RECRUITING.  GUBBAY TOLD 
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BELLAMY HE FULLY EXPECTS CHIDYAUSIKU TO BE NAMED AS HIS 
PERMANENT REPLACEMENT BEGINNING JULY 1.  STERNFORD MOYO, 
HOWEVER, SEPARATELY TOLD THE ACTING AF P/DAS THAT HE AND 
OTHER MEMBERS OF THE JUDICIAL SERVICES COMMISSION -- 
CHARGED BY THE CONSTITUTION WITH ADVISING THE PRESIDENT ON 
JUDICIAL NOMINEES -- WERE WORKING TO TRY TO BLOCK 
CHIDYAUSIKU'S ASCENSION TO THE APEX OF ZIMBABWE'S 
JUDICIARY. 
 
5.  (C) WE SUSPECT THE GOZ IS EAGER TO INSTALL A PLIANT 
SUPREME COURT AS SOON AS POSSIBLE, AS THE COURT MIGHT SOON 
CONSIDER SEVERAL CONSTITUTIONAL CASES THAT COULD HAVE A 
DIRECT IMPACT ON THE RULING PARTY'S POLITICAL PROGRAM.  THE 
HIGH COURT, FOR INSTANCE, IS CURRENTLY HEARING CHALLENGES 
TO THE RESULTS IN 37 CONSTITUENCIES IN LAST JUNE'S 
PARLIAMENTARY ELECTIONS.  A DECISION BY THE HIGH COURT TO 
INVALIDATE THE RESULTS IN ANY OF THOSE CONSTITUENCIES -- 
AND TO CALL FOR NEW ELECTIONS TO FILL THE SEATS -- WOULD 
WITHOUT DOUBT BE APPEALED TO THE SUPREME COURT.  IN 
ADDITION, THE MDC PLANS TO CHALLENGE THE CONSTITUTIONALITY 
OF THE REPRESSIVE COLONIAL-ERA LAW AND ORDER MAINTENANCE 
ACT (LOMA), WHICH THE GOZ HAS USED TO CRACK DOWN ON LEADING 
OPPOSITION FIGURES, INCLUDING MDC PRESIDENT MORGAN 
TSVANGIRAI AND HIS VICE-PRESIDENT GIBSON SIBANDA.  CHIEF 
 
SIPDIS 
JUSTICE GUBBAY TOLD ACTING AF P/DAS BELLAMY THAT THE COURT 
 
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                           CONFIDENTIAL     PTQ9427 
 
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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    DCP-01   NSAE-00  OIC-02   OMB-01   OPIC-01 
      PA-00    PM-00    PRS-00   ACE-00   P-00     SP-00    STR-00 
      TRSE-00  USIE-00  PMB-00   DSCC-00  PRM-01   DRL-02   G-00 
      NFAT-00  SAS-00   SWCI-00    /010W 
                  ------------------D19B5B  141608Z /38 
P 141605Z MAR 01 
FM AMEMBASSY HARARE 
TO SECSTATE WASHDC PRIORITY 8425 
INFO NSC WASHDC PRIORITY 
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 
AMEMBASSY NAIROBI 
 
C O N F I D E N T I A L SECTION 02 OF 02 HARARE 001018 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
LONDON FOR GURNEY 
PARIS FOR WILLIAMS 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL. 03/14/11 
TAGS: PGOV, PHUM, PINR, ZI 
SUBJECT:  ZIMBABWE: CHIDYAUSIKU SWORN IN AS ACTING CHIEF 
JUSTICE 
 
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PAGE 02        HARARE  01018  02 OF 02  141608Z 
WAS UNLIKELY TO ISSUE ANY MORE RULINGS ON THE GOVERNMENT'S 
FAST TRACK RESETTLEMENT PROGRAM, AS HE AND HIS COLLEAGUES 
HAD MADE THEIR POSITION ON THE ILLEGALITY OF THAT EXERCISE 
ABSOLUTELY CLEAR. 
 
6.  (U) BIOGRAPHIC INFORMATION ON CHIDYAUSIKU WILL FOLLOW 
SEPTEL. 
 
IRVING 
 
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