US embassy cable - 04HARARE1224

S E C R E T HARARE 001224 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR C. COURVELLE, D. TEITELBAUM 
LONDON FOR C. GURNEY 
PARIS FOR C. NEARY 
NAIROBI FOR T. PFLAUMER 
 
E.O. 12958: DECL: 07/22/2009 
TAGS: PGOV, PHUM, PREL, ZI, MDC 
SUBJECT: LAWYERS ELABORATE ON TSVANGIRAI CASE 
 
REF: (A) PRETORIA 3333 (B) HARARE 1205 (C) HARARE 1201 
 
Classified By: Political Officer Win Dayton under Section 1.5 b/d 
 
1.  (C) Opposition leader Morgan Tsvangirai's lawyers told 
the Embassy on July 22 that the court advised them that 
announcement of the verdict had been postponed until August, 
date to be determined.  The reason given was that the 
assessors had requested full transcripts of the trial for 
further review.  The lawyers interpretation of this 
development was that the judge had rendered a guilty verdict 
with which the assessors disagreed.  The lawyers knew little 
of the identity of either assessor, although they thought one 
was a retired brigadier (NFI). 
 
2.  (U) Under Zimbabwean law, each capital case is assigned 
two assessors selected by the Minister of Justice, with the 
concurrence of the Chief Justice and Judge President.  The 
assessors are selected from a pool of individuals deemed to 
have experience in the administration of justice or skills 
relevant to the particular case at hand but are not officers 
of the court.  The assessors hear the entire case.  The facts 
on which a guilty verdict is based must be agreed by the 
judge and at least one of the assessors.  The High Court Act 
provides that the judge may dismiss an assessor if (s)he 
determines that the assessor is unable to perform relevant 
duties.  In the event of dismissal or death of an assesor, 
the judge and remaining assessor would have to agree on the 
facts to support a guilty verdict.  If they do not, the 
defendant would remain in custody of the court or remain free 
if already on bail, and could be tried again.  While it may 
be reasonable to assume the same outcome would would ensue 
from a judge's failure to elicit concurrence from either 
assessor when both remain, the law appears to be curiously 
silent on that more common scenario. 
 
3.  (U) Local lawyers were unaware of a case in which a 
judge's verdict had proceeded without the concurrence of 
either assessor.  In at least one case, however, no verdict 
was rendered when neither assessor concurred, but it is 
unclear whether that was required by law or merely reflected 
the prevailing culture of jurisprudence at the time. 
 
4.  (S/NF) British charge told the embassy on July 23 that 
London had instructed the British embassies in Pretoria and 
Abuja to approach host governments and seek engagement on 
Tsvangirai's possibly wired conviction.  She added that Jack 
 
SIPDIS 
Straw was following the matter very closely; she "expected" 
him to make calls to Abuja and Pretoria on the matter but 
emphasized that no final decision had been taken. 
 
5.  (C) At a meeting in his office on July 22, Ambassador 
Sullivan emphasized to Father Fidelis Mukonori, Jesuit 
Provincial of Zimbabwe and confidant of President Mugabe, 
that a conviction of Tsvangirai on such a flimsy case could 
only be regarded as a political verdict and would have 
serious repurcussions for the GOZ at home and abroad.  Father 
Fidelis said he did not think that Mugabe would be involved 
in ordering a conviction and that Mugabe would not allow a 
death sentence to be carried out in any event.  He undertook 
to raise the matter with Mugabe when he saw him in the next 
two weeks and report back to the Ambassador. 
 
6.  (C) COMMENT: That the GOZ would have not assured that at 
least one of the assessors was within its control is 
surprising.  Nonetheless, the assessors appear to have thrown 
an unexpected wrench into the works that may open a window of 
opportunity for Obasanjo, Mbeki, and possibly others to weigh 
in. 
 
 
SULLIVAN