US embassy cable - 01HARARE1453

C O N F I D E N T I A L HARARE 001453 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
LONDON FOR GURNEY 
PARIS FOR BISA WILLIAMS 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL. 04/25/11 
TAGS: PHUM, PGOV, KDEM, PINS, ZI 
SUBJECT: MDC WINS TWO PARLIAMENTARY LEGAL CHALLENGES 
 
REF:  HARARE 1123 
 
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CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING.  REASONS: 1.5 
(B) AND (D). 
 
JUDICIAL RULING 
--------------- 
 
1.  (C) IN A SIGNIFICANT LEGAL VICTORY FOR THE OPPOSITION MOVEMENT 
FOR DEMOCRATIC CHANGE (MDC), HIGH COURT JUDGE JAMES DEVITTIE ON 
APRIL 26 NULLIFIED ZANU-PF'S PARLIAMENTARY VICTORIES IN TWO 
CONSTITUENCIES LAST JUNE -- BUHERA NORTH IN MANICALAND AND HURUNGWE 
EAST IN MASHONALAND WEST -- AND DECLARED THE TWO SEATS VACANT.  THE 
PETITIONER IN THE BUHERA NORTH CASE IS MDC PRESIDENT MORGAN 
TSVANGIRAI, WHO HAD LOST TO THE ZANU-PF CANDIDATE -- KENNETH 
 
SIPDIS 
MANYONDA -- BY 2500 VOTES (OUT OF A TOTAL OF MORE THAN 23,000 
BALLOTS CAST).  IN HIS ORAL REMARKS, DEVITTIE CITED WIDESPREAD 
VIOLENCE AND INTIMIDATION IN THE TWO VOTING DISTRICTS, NOTING THAT 
THE CLIMATE MAY HAVE PREVENTED CITIZENS FROM "EXERCISING THEIR 
DEMOCRATIC RIGHT TO VOTE."  REFLECTING THE INTENSE PRESSURE 
CONFRONTING HIM AND HIS TWO HIGH COURT COLLEAGUES WHO ARE HANDLING 
THE MDC'S LEGAL CHALLENGES, DEVITTIE SAID HIS DECISIONS CAUSED HIM 
"MORE ANXIETY THAN HE HAS HAD CAUSE TO FEEL IN THE TIME HE HAS SAT 
ON THE BENCH." 
 
REACTIONS 
--------- 
 
2.  (C) TSVANGIRAI WELCOMED THE JUDGMENT, SAYING IT HAD CONFIRMED 
THAT LAST JUNE'S ELECTIONS HAD NOT BEEN FREE AND FAIR, AND HE 
PRAISED THE JUDICIARY FOR NOT SUCCUMBING TO STATE INTIMIDATION.  IN 
A SURPRISINGLY UPBEAT REACTION, THE USUALLY VITRIOLIC MINISTER OF 
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INFORMATION JONATHAN MOYO EMPHASIZED THE GOVERNMENT'S COMMITMENT TO 
THE RULE OF LAW AND RESPECT FOR COURT DECISIONS.  AN ALMOST GIDDY 
MOYO SAID ZANU-PF SUPPORTERS WERE "RARING" TO CONTEST A BY-ELECTION 
AND SAID HE HOPED THE REGISTRAR-GENERAL WOULD ORGANIZE THE PROCESS 
WITHOUT DELAY. 
 
NEXT STEPS 
---------- 
 
3.  (C) ACCORDING TO THE ELECTORAL ACT, BY-ELECTIONS MUST BE HELD 
TO FILL THE NOW VACANT SEATS WITHIN APPROXIMATELY 90 DAYS FROM THE 
DATE DEVITTIE'S WRITTEN JUDGMENT IS RELEASED -- EXPECTED WITHIN A 
WEEK -- OR OF A SUPREME COURT RULING UPHOLDING HIS DECISION.  GANDI 
MUDZINGWA, TSVANGIRAI'S PERSONAL ASSISTANT, TOLD POLITICAL SECTION 
CHIEF ON APRIL 27 THAT THE MDC PRESIDENT WAS TORN ABOUT WHETHER TO 
CONTEST THE BY-ELECTION.  ON ONE HAND, HE WANTS TO DEMONSTRATE TO 
THE VOTERS IN BUHERA NORTH THAT HE IS NOT AFRAID TO RUN AGAIN BUT, 
ON THE OTHER, CONTESTING A PARLIAMENTARY SEAT WHILE HE IS RUNNING 
FOR PRESIDENT MIGHT NOT MAKE THE BEST SENSE.  MUDZINGWA SAID THE 
MDC'S NATIONAL EXECUTIVE COMMITTEE WOULD MEET SOON TO CONSIDER THIS 
ISSUE.  DEVITTIE IS SCHEDULED TO RENDER DECISIONS IN TWO OTHER 
CASES THE AFTERNOON OF APRIL 27. 
 
MORE INTIMIDATION 
----------------- 
 
4.  (C) TWO HOURS AFTER DEVITTIE ANNOUNCED HIS RULINGS ON APRIL 26, 
A GROUP OF FIFTEEN CENTRAL INTELLIGENCE ORGANIZATION AGENTS AND 
POLICE IN RIOT GEAR APPEARED AT THE MDC'S HEADQUARTERS IN DOWNTOWN 
HARARE.  THEY ARRESTED FOUR OF TSVANGIRAI'S BODYGUARDS, ACCUSING 
THEM OF HAVING RECEIVED MILITARY TRAINING IN UGANDA.  ACCORDING TO 
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MUDZINGWA, THE FOUR WERE DETAINED OVERNIGHT AT HARARE'S CENTRAL 
POLICE STATION AND DENIED ACCESS TO THEIR ATTORNEY.  AS OF MIDDAY 
ON APRIL 27, FORMAL CHARGES STILL HAD NOT BEEN FILED AGAINST THE 
FOUR, WHO REMAINED IN DETENTION AND CONTINUED TO BE DENIED ACCESS 
TO LEGAL COUNSEL. 
 
COMMENT 
------- 
 
5.  (C) DEVITTIE SHOWED A GREAT DEAL OF COURAGE, AS HE WAS UNDER 
SIGNIFICANT PRESSURE TO RULE THE OTHER WAY.  INDEED, HIS DECISIONS 
TOOK EVERYONE IN THE COURTROOM BY SURPRISE, AND WILL UNDOUBTEDLY 
GIVE HOPE TO ZIMBABWEANS, MANY OF WHOM HAVE BEEN FEELING 
INCREASINGLY DESPONDENT ABOUT THE DIRECTION OF THEIR COUNTRY. 
MOYO'S POSITIVE REACTION PROVIDES REASON TO BE SUSPICIOUS, AND 
SUGGESTS THAT ZANU-PF HAS SOME OTHER PLAN UP ITS SLEEVE THAT 
PROBABLY WILL INVOLVE SIGNIFICANT LEVELS OF VIOLENCE AND 
INTIMIDATION.  THE GOVERNMENT CERTAINLY REVEALED ITS TRUE COLORS IN 
RAIDING THE MDC'S OFFICES SO SOON AFTER DEVITTIE'S JUDGMENTS. 
ALTHOUGH THE ELECTORAL ACT PROVIDES GENERAL TIMELINES WITHIN WHICH 
A BY-ELECTION SHOULD BE HELD, IT PROVIDES THE PRESIDENT WITH SOME 
DISCRETION FOR DELAY, AND WE FULLY EXPECT MUGABE TO TAKE ADVANTAGE 
OF THIS WIGGLE ROOM. 
 
IRVING 
 
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