US embassy cable - 04HARARE987

C O N F I D E N T I A L HARARE 000987 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER, D. TEITELBAUM 
LONDON FOR C. GURNEY 
PARIS FOR C. NEARY 
NAIROBI FOR T. PFLAUMER 
 
E.O. 12958: DECL: 12/31/2014 
TAGS: PGOV, PHUM, PINR, ZI 
SUBJECT: HIGH COURT DISMISSES PHASE ONE OF MDC PRESIDENTIAL 
ELECTION CHALLENGE 
 
REF: 2003 HARARE 2204 
 
Classified By: Political Officer Audu Besmer for reasons 1.5 b/d 
 
1. (U) SUMMARY:  On June 10, the High Court dismissed the 
first phase of the MDC's election petition covering 
challenges against the 2002 presidential election.  No date 
has yet been set for a second phase, which is expected to 
disclose factual evidence potentially embarrassing to the 
GOZ.  END SUMMARY. 
 
2. (U) High Court Justice Ben Hlatshwayo dismissed the first 
phase of the MDC's presidential election petition, ruling 
that the constitutional and legal points the MDC raised did 
not prejudice the 2002 presidential election.  The MDC had 
challenged the constitutionality of the Electoral Act and a 
2002 amendment to the Act, which allowed President Mugabe to 
stipulate the composition of the Electoral Supervisory 
Commission (ESC), to restrict mail-in ballots to soldiers and 
diplomats, to extend voter registration for five extra days, 
and to allow voters who registered after the cutoff date to 
vote.  The MDC also sought to include the ESC as a 
respondent; Hlatshwayo did rule in the MDC's favor on that 
point. 
 
3. (SBU) The MDC originally filed this elections petition in 
April 2002.  After 19 months, in November 2003 the MDC took a 
day and a half to argue its 27-point petition in court.  The 
State's response took 40 minutes and did not cover many of 
the points the MDC had raised.  Seven months later, Justice 
Hlatshwayo has dismissed most of the points the MDC raised. 
This paves the way for the second phase of the petition, an 
expectedly lengthy phase covering factual evidence and 
involving reportedly tens of witnesses.  Justice Hlatshwayo 
has not yet issued reasons for his decision, and no date has 
been suggested to start the second phase. 
 
4. (C) On June 10 MDC MP and Shadow Minister of Justice David 
Coltart said that he had been fundraising for the past two 
years to pay for this trial and that monies were more or less 
in place to pay legal fees for the lengthy second phase. 
Coltart could not predict when the second phase of the trail 
might start and noted that of 37 MDC challenges to the 
parliamentary elections of 2000, only 14 had so far been 
heard in court. 
 
Comment: 
-------- 
 
5. (C) Many observers construe this dismissal as a serious 
blow to the MDC, but the decision itself represents progress 
in the case, which has been delayed inexplicably for over two 
years.  In addition, the first phase covering legal issues 
was less significant than the second covering factual ones. 
In the second phase the MDC intends to bring forward soldiers 
who stuffed ballot boxes, evidence of tampering with the 
voters' roll, and other dirty laundry the GOZ would not want 
aired in public.  The incredible delays and expense, and 
judicial bias, however, in this and the parliamentary 
challenges have led some MDC leaders to question the wisdom 
of using the courts to achieve political ends. 
WHITEHEAD