US embassy cable - 01HARARE1123

C O N F I D E N T I A L HARARE 001123 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
LONDON FOR GURNEY 
PARIS FOR BISA WILLIAMS 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL. 03/21/11 
TAGS: PHUM, PGOV, KDEM, PINS, ZI 
SUBJECT: MDC LOSES FIRST ELECTORAL CHALLENGE 
 
 
CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING.  REASONS: 1.5 
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(B) AND (D). 
 
1.  (U) ON MARCH 23, HIGH COURT JUDGE VERNANDA ZIYAMBI 
DISMISSED A PETITION BY THE OPPOSITION MOVEMENT FOR 
DEMOCRATIC CHANGE (MDC) SEEKING NULLIFICATION OF ZANU-PF'S 
PARLIAMENTARY VICTORY LAST JUNE IN THE ZVISHAVANE 
CONSTITUENCY.  ZIYAMBI'S JUDGMENT WAS THE FIRST TO BE 
HANDED DOWN BY THE HIGH COURT SINCE IT BEGAN HEARING LAST 
MONTH LEGAL CHALLENGES TO THE RESULTS IN 37 CONSTITUENCIES. 
IN ISSUING HER JUDGMENT ORALLY (THE WRITTEN VERSION IS 
LIKELY TO FOLLOW SOMETIME THIS WEEK), ZIYAMBI ACKNOWLEDGED 
THAT POLITICALLY-MOTIVATED VIOLENCE AND INTIMIDATION HAD 
OCCURRED IN ZVISHAVANE PRIOR TO THE ELECTION, AND ASSERTED 
THAT BOTH SIDES HAD BEEN RESPONSIBLE.  HOWEVER, SHE RULED 
AGAINST THE PLAINTIFFS FOR THREE REASONS: THEY HAD FAILED 
TO LINK THE ZANU-PF CANDIDATE -- PEARSON MBALEKWA -- TO THE 
VIOLENCE; THE VIOLENCE AND INTIMIDATION WERE SPORADIC AND 
NOT "OF A GENERAL NATURE"; AND THE WITNESSES WERE 
UNRELIABLE. 
 
MDC'S REACTION 
-------------- 
 
2.  (C) IN A MARCH 26 CONVERSATION WITH POLITICAL SECTION 
CHIEF, MDC MP -- AND SHADOW MINISTER OF JUSTICE -- DAVID 
COLTART CRITICIZED THE HIGH COURT DECISION.  ACCORDING TO 
COLTART, THE PRIMARY FACTOR IN ZIYAMBI'S DECISION HAD BEEN 
THAT THE ZANU-PF CANDIDATE COULD NOT BE DIRECTLY LINKED TO 
THE VIOLENCE AND INTIMIDATION PRECEDING THE ELECTION IN 
ZVINAVASHE.  THAT FINDING, COLTART INSISTED, REVEALED A 
MISINTERPRETATION OF THE ELECTORAL ACT, WHICH REQUIRED 
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PROOF OF SUCH A LINKAGE ONLY IF THE PLAINTIFF WAS SEEKING 
THE BANNING OF THE INDIVIDUAL FROM ELECTORAL POLITICS.  IN 
THIS PARTICULAR CASE, HOWEVER, THE MDC HAD SOUGHT ONLY TO 
HAVE THE ELECTION RESULT OVERTURNED.  COLTART ALSO SCOFFED 
AT ZIYAMBI'S CONTENTION THAT INCIDENTS OF VIOLENCE HAD BEEN 
SPORADIC, NOT GENERAL, EMPHASIZING THAT THE ATMOSPHERE IN 
ZVISHAVANE WAS "SO BAD THAT IT SUBVERTED THE ENTIRE 
ELECTORAL PROCESS."  COLTART SAID THE MDC WOULD APPEAL TO 
THE SUPREME COURT.  THE MDC MP EXPRESSED A BROADER CONCERN 
THAT NONE OF THE THREE JUDGES HEARING THE ELECTORAL 
CHALLENGES -- ZIYAMBI, PADDINGTON GARWE, AND JAMES DEVITTIE 
-- APPEARED INCLINED TO ACCEPT THE OVERWHELMING EVIDENCE 
PRESENTED IN THE SEVEN CASES HEARD SO FAR.  IN ONE 
INSTANCE, JUDGE DEVITTIE HAD REFUSED EVEN TO CONSIDER 
DETAILED ASSESSMENTS OF THE ELECTION BY EU AND COMMONWEALTH 
OBSERVERS, COMPLAINING IN OPEN COURT THAT HE DID NOT HAVE 
THE TIME TO READ SUCH LENGTHY DOCUMENTS. 
 
COMMENT 
------- 
 
3.  (C) THE MDC IS CLEARLY DISAPPOINTED WITH JUDGE 
ZIYAMBI'S DECISION, BUT, FRANKLY, WE WERE NOT SURPRISED AT 
THE RULING.  WITNESSES CAN MAKE OR BREAK A CASE, AND THE 
WITNESSES IN THE ZVISHAVANE SUIT WERE NOT PARTICULARLY 
CREDIBLE, WERE CLEARLY COACHED ON HOW TO RESPOND TO CERTAIN 
QUESTIONS, AND WERE OFTEN SURLY AND DISRESPECTFUL TOWARD 
THE JUDGE.  DAVID COLTART'S COMPLAINT NOTWITHSTANDING, 
REASONABLE PEOPLE CAN DISAGREE IN THEIR INTERPRETATIONS OF 
THE FUZZILY-WRITTEN ELECTORAL ACT.  ALTHOUGH ZIYAMBI IS 
GENERALLY VIEWED AS SYMPATHETIC TO ZANU-PF, HER 
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INTERPRETATION IN THIS CASE APPEARS TO OUR LAYMAN'S EYES AT 
LEAST TO BE LEGALLY DEFENSIBLE.  THE ZVISHAVANE JUDGMENT 
SUGGESTS THAT ZIYAMBI'S PREDOMINANT CONSIDERATIONS IN THE 
REMAINING CASES WILL BE WHETHER THE ZANU-PF CANDIDATE CAN 
BE LINKED TO INCIDENTS OF FRAUD, VIOLENCE, OR INTIMIDATION 
AND WHETHER SUCH ABUSES AFFECTED SIGNIFICANT PORTIONS OF 
THE POPULATION.  JUDGING FROM THEIR QUESTIONS IN THE CASES 
BEFORE THEM, JUDGES GARWE AND DEVITTIE ARE LIKELY TO TAKE 
THE SAME APPROACH.  ADDITIONAL JUDGMENTS COULD BE 
FORTHCOMING SOON, AS SIX OTHER CASES HAVE NOW BEEN 
COMPLETED. 
 
IRVING 
 
                       CONFIDENTIAL 
 
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