US embassy cable - 04HARARE1943

UNCLAS SECTION 01 OF 03 HARARE 001943 
 
SIPDIS 
 
SENSITIVE 
 
AF/S FOR B. NEULING 
NSC FOR SENIOR AFRICA DIRECTOR C. COURVILLE 
 
E.  O.  12958: N/A 
TAGS: PGOV, PHUM, SOCI, ZI 
SUBJECT: COURT CASES UPDATE -- ZIMBABWE'S STRESSED JUDICIARY 
STILL DELIVERING 
 
REF: (A) Harare 1787  (B) Harare 1722 (C) Harare 1594  (D) 
Harare 633  (E) 03 Harare 1935 
 
1. (SBU) SUMMARY: Several noteworthy cases over the last few 
months suggest the continuing vitality of elements within 
Zimbabwe's beleaguered judiciary despite political and 
professional pressures.  Courts dismissed charges in the 
Cain Nkala murder trial, for example, and ordered 
Information Minister Jonathan Moyo to pay an independent 
newspaper publisher damages for defamatory remarks.  Other 
politically sensitive cases, however, languish indefinitely, 
essentially denying justice through prejudicial delays.  And 
despite a growing string of adverse decisions, the GOZ 
continues its strategy of harassing its opponents through 
litigation and ignoring many decisions against it. 
Nonetheless, Zimbabwean courts retain a surprising level of 
trust among the general public and could play a critical 
role in national recovery should political turmoil here 
recede.  END SUMMARY. 
 
Rulings Against the Government 
------------------------------ 
 
2. (U) The Tsvangirai acquittal last month was not the only 
politically sensitive case in which Zimbabwean courts ruled 
against the GOZ recently -- 
 
-- Nkala Case Dismissed: High Court Judge Sandra Mungwira on 
August 5 dismissed all charges against MDC MP Fletcher 
Dulini Ncube and five other MDC activists charged in the 
murder of ruling party activist Cain Nkala.  The dismissal 
concludes a trial that lasted nearly three years and 
involved a "trial within a trial" (ref E) in which police 
confessions were found to have been coerced.  The exonerated 
defendants indicated they may sue the GOZ over their 
treatment in prison. 
 
-- Defamation Damages Against Minister: In July, the High 
Court ordered Information Minister Jonathan Moyo to pay 
Z$2.5 million (US$450) damages for defamation to the 
Associated Newspapers of Zimbabwe, the publisher of the 
shuttered Daily News.  The damage award, which related to 
defamatory statements made by Moyo and Deketeke (alleged to 
be the author of the weekly, vicious pseudonymous Nathaniel 
Manheru columns) against staff members of the Daily News 
(TDN), was just the latest in a string of TDN-related 
decisions against the GOZ. 
 
Cases Against the Government 
---------------------------- 
 
3.  (SBU) The courts are entertaining other politically 
significant cases that put the GOZ and the ruling party 
under pressure -- 
 
-- Wrongful Death Claim Against Minister: Minister Without 
Portfolio in the President's Office (and former Minister of 
Youth Development, Gender and Employment Creation) Elliot 
Manyika faces a wrongful death claim of Z$135 million 
(US$22,000) filed by the survivors of a murdered MDC 
activist.  Manyika allegedly shot two activists during the 
Zengeza parliamentary by-election campaign (ref D). 
Plaintiffs' attorney told us that Manyika would have been 
prosecuted but for the personal intervention of Police 
Commissioner Chihuri.  The attorney told us that the 
Minister invited Gunzvezve and the family of Chinozvina to 
meet with him for an out of court settlement but no 
agreement had been reached.  A trial date has yet to be set. 
 
-- Bennet Appeals: MDC MP Roy Bennet is pursuing two court 
appeals of his parliamentary "conviction" for pushing down 
the Minister of Justice.  A constitutional appeal is before 
the Supreme Court after being dismissed by the High Court 
while an appeal revolving around principles of natural 
justice is still before the High Court.  Conclusive rulings 
are not expected in either action soon and Bennet continues 
to serve his sentence "with labor" under arduous conditions. 
(Note: MDC MP and Shadow Minister for Justice David Coltart 
told us that the party was seeking advocacy on Bennet's 
behalf by the Inter-Parliamentary Union and sitting 
counterparts in other legislatures, including the U.S. 
Congress.) 
 
-- Election Challenges Drag On: None of the 38 election 
petitions originally filed in the High Court contesting 
outcomes of the 2000 parliamentary elections has been 
finally resolved to date.  In a typical example, the Supreme 
Court on November 5 reserved judgment in the election 
petition of the Minister of State for Science and 
Technology, Olivia Muchena, who had appealed a High Court 
nullification of her election as MP for Mutoko South.  Last 
month, the Supreme Court reportedly dismissed the appeals of 
ruling party MPs Elleck Mkandla and Jaison Machaya against 
High Court rulings in favor of MDC challengers in January 
2003.  Nonetheless, the ruling party MPs are seeking 
reinstatement of the appeals and the Speaker of the 
Parliament has yet to act on MDC demands that the seats be 
declared vacant.  (Note: In response to the courts' failure 
to resolve these cases, Zimbabwe Lawyers for Human Rights 
filed an action with the African Commission for Human Rights 
in Dakar, arguing that the inaction violated the African 
Charter.  The action, which was filed in August, awaits a 
GOZ response.) 
 
Resettled Farmers In Court: Attorney contacts told us that 
they are increasingly involved in litigation on behalf of 
resettled farmers in disputes with their neighbors.  In 
several cases, the courts have been granting "A1" farmers 
(people resettled under small-holder schemes) favorable 
orders allowing them to remain on their land in the face of 
attempts by party stalwarts to evict them.  Courts have 
issued preliminary orders enjoining authorities from 
preventing the return of settlers burned out of their homes 
by authorities last month (ref C).  The lawyers advise us 
that some, though not all, of the settlers have returned. 
 
Tsvangirai Acquittal to be Appealed? 
 
SIPDIS 
------------------------------------ 
 
4.  (SBU) Meanwhile, the GOZ gives every indication that it 
will continue its use of the courts to harass its critics 
and the opposition.  According to the October 31 edition of 
the state-owned newspaper "the Herald", acting attorney 
general Bharat Patel said that the GOZ intended to appeal 
against the judgment in the Tsvangirai treason trial.  Patel 
was quoted as saying that the appeal would be filed to the 
Supreme Court by mid November.  Tsvangirai's attorneys, 
however, have not yet received any information from the 
state concerning its intentions to appeal.  On November 3, 
Tsvangirai appeared before a local magistrate, who set a 
 
SIPDIS 
hearing for January 13 on the second treason charge, which 
concerned Tsvangirai's statements associated with mass 
demonstrations.  According to MDC sources, the January 
hearing may involve the setting of bail and possible seizure 
again of Tsvangirai's passport, although the case is 
reportedly even weaker than the first charge. 
 
Courts Under Pressure . 
----------------------- 
 
5.  (SBU) Often viewed as subservient to the executive 
branch, Zimbabwe's judiciary still contains elements capable 
of rendering significant judgments against the government. 
On its face, for example, Mungwira's judgment in the Nkala 
murder trial not only strengthens the position of judges but 
also that of victims of unlawful arrests.  The TDN 
defamation holding is just the latest in a series of 
decisions supporting freedom of the press.  Dismissal of the 
ruling party election appeals likewise follows a line of 
rulings against the GOZ in election contests.  If given 
effect, such judgments could have had far reaching 
implications for the future conduct of the police, the 
country's media, and GOZ election administration.  Until 
executive-controlled institutions like the police and Media 
and Information Commission show willingness to implement 
such decisions, however, such cases offer little more than 
rhetorical fodder for regime critics - largely Pyrrhic 
victories. 
 
6.  (SBU) Minister Manyika's situation is symptomatic of 
deficiencies in both the court system and the election 
environment.  His interest in settlement is interesting; 
according to Zimbabwean culture if a person causes the death 
of an individual he/she must seek forgiveness from the 
aggrieved family by paying a token sum as reparation 
(kuripa).  Failure to do so may result in a curse being 
imposed upon that individual and his/her family (ngozi). 
Perhaps more significantly, the offer may reflect his 
personal and ruling party interest in resolving the matter 
away from the glare of public spotlight, especially in view 
of regional scrutiny invited by the GOZ for upcoming 
elections.  Essentially the ruling party's publicly 
prominent national campaign manager several months ago, 
Manyika's star appears to be waning of late. 
 
7. (SBU) There remains an element of fear within the 
judiciary.  The example of former Judge President of the 
Administrative Court Justice Michael Majuru is illustrative: 
he publicly gave a detailed account from South Africa 
earlier this year about his forced resignation and exile to 
South Africa after constant harassment from ruling party 
supporters and direct pressure from the Minister of Justice 
in connection with the controversial Daily News case. 
 
8. (SBU) Economic pressure on the largely underpaid bench is 
an additional factor.  Instruments setting out the terms 
under which judges take property under land reform, for 
example, reportedly have clauses giving the state 
unconditional authority to reclaim the property.  According 
to a former president of the Law Society, all but five 
judges on the Supreme Court and High Court have received 
farms under land reform.  Interestingly, the state media 
earlier this month fingered Judge Garwe, who rendered the 
surprise Tsvangirai acquittal, as having failed to sell the 
grain from his farm to the Grain Marketing Board as required 
- a precursor, perhaps, to his farm being reclaimed by the 
state. 
 
9. (SBU) Executive branch pressure and harassment only 
compound the myriad challenges imposed on the judiciary by 
the economy's collapse.  Emigration takes a toll, as many 
jurists find their skills in demand in neighboring countries 
with similar legal systems.  Declining real budgets are 
sapping the judicial system's infrastructure.  Once 
impressive courtrooms and offices are dilapidated, libraries 
are depleted and obsolete, and backlogs are growing as 
resource constraints have delayed plans to computerize 
indefinitely. 
 
. But Still Commanding Respect 
------------------------------ 
 
10.  (SBU) Long delays are becoming the norm in politically 
sensitive cases here.  Nonetheless, as the court's ever- 
growing workload attests, Zimbabweans of all political 
stripes continue to view the courts as a resort of some 
value.  Rule of law remains important to Zimbabweans, a fact 
not lost on a GOZ that goes to great lengths publicly to 
legitimize its actions legalistically, even as it ignores 
selected judicial pronouncements.  Local newspapers often 
read like a court docket, with innumerable reports on 
criminal and civil cases involving prominent political and 
business figures.  Reports of conclusive disposition of any 
cases, however, seem rare. 
 
11.  (SBU) Although it remains unclear whether or not the 
judgment in Tsvangirai's treason trial was a political one, 
Garwe's judgment has further bolstered the faith of many in 
Zimbabwe's judiciary.  Notwithstanding the likely political 
and economic pressure he was under, he ruled even-handedly 
throughout the trial, castigated the state's key witness Ari 
Ben Menashe repeatedly, and delivered a judgment that most 
local attorneys characterized as sound. 
 
12.  (SBU) In spite of deteriorating conditions and numerous 
constraints, the judiciary retains a strong measure of 
public respect.  An August 2004 survey conducted in Zimbabwe 
by the Mass Public Opinion Institute and Michigan State 
University disclosed that 64 percent of respondents had "a 
very great deal/a lot of trust" in the courts - the highest 
level of trust among 12 national institutions/offices. 
Indeed, the judicial system's residual talent, integrity, 
and courage - and the trust it still engenders - will be 
important in sustaining Zimbabweans' hope for the future and 
could be an important foundation to support national 
recovery should political conditions improve. 
 
DELL