US embassy cable - 05MAPUTO145

C O N F I D E N T I A L SECTION 01 OF 02 MAPUTO 000145 
 
SIPDIS 
STATE FOR AF/S, AF/EPS, EB/IFD/OIA 
DEPT PASS TO MCC FOR HARRINGTON AND GAULL 
NSC FOR TEITELBAUM 
STATE PASS OPIC FOR WATSON AND SHORE 
E.O. 12958: DECL: 01/31/2015 
TAGS: EINV, MZ, Nyati, Tourism, OPIC 
SUBJECT: OPIC/NYATI BEACH DEVELOPMENTS - U.S. INVESTOR 
EVICTED, SUPREME COURT ORDERS EVICTION SUSPENDED 
 
REF: A. MAPUTO 25 
 
B. 2004 MAPUTO 1539 
C. 2004 MAPUTO 1446 
Classified By: Ambassador Helen La Lime, Reasons 1.4(b) and (d) 
 
1. (C) Summary: OPIC-supported American investor Dave 
Herbert was evicted from his Nyati Beach Lodge on January 6 
based on a new provincial court order. Mozambique High 
Court has issued a dispatch suspending that order, but the 
provincial judge has refused to enforce the suspension. 
Mr. Herbert and his legal team are trying to determine how 
to ensure that the High Court order is quickly enforced. 
His lawyers have heard about a power the Prime Minister has 
to compel enforcement, but we do not know how applicable 
this is. Ambassador has engaged several senior GRM 
officials, including the Foreign Minister, an adviser to 
outgoing President Chissano, and the Justice Minister. 
Both Chissano and Prime Minister Diogo have been actively 
involved. The Ambassador has been informed that the 
provincial judge will not be allowed to defy the Supreme 
Court dispatch indefinitely, but we are not able to predict 
when the issue will be resolved. President-elect Guebuza 
will be inaugurated February 2 and his government named 
soon afterwards, and the transition may be complicating 
matters. Post will engage the officials of the new 
government on Mr. Herbert behalf. End Summary. 
 
Claimant Obtains New Order, Evicts Amcit 
---------------------------------------- 
2. (SBU) On January 6, Zimbabwean claimant Rex Potter 
arrived at OPIC-supported Amcit investor Dave Herbert Nyati Beach Lodge with Inhambane provincial police in order 
to take possession of the property and evict guests and 
staff. Potter claim is based on a 1994 concession that 
includes land on which the Nyati Lodge stands, along with 
March 2004 and October 2004 rulings by the Inhambane 
provincial judge confirming his rights to the land (ref 
C). Since mid-October 2004, Potter had attempted previous 
evictions of the lodge with private security forces in 
tow. The October order had no provisions for eviction, so 
Minister of Interior Almerino Manhenje had previously 
denied Potter the use of local police for his evictions 
attempts. Potter obtained on January 3 an order that did 
authorize the use of police for eviction. 
 
3. (SBU) There was no reported physical violence or 
property damage in the eviction. The Danish guests who 
wished to remain were allowed to stay for the remainder of 
the weekend. Mr. Herbert staff and guests had been fully 
evicted by early the following week. There were no 
American guests at the lodge at the time of the eviction. 
 
President Intervenes, Supreme Court VP Acts 
------------------------------------------- 
4. (SBU) According to Mr. Herbert, Minister of Environment 
(and Vilanculos Wildlife Sanctuary board member) John 
Kachamila convinced President Chissano to intervene. On 
January 10, Chissano reportedly called High Court President 
Mario Mangaze, who told him he had never received the order 
that Attorney General Madeira had told the Ambassador on 
November 23 that he would send (ref B). Chissano then 
reportedly called Madeira, who told him that the order had 
actually never been sent. Chissano then organized a 
meeting of Mr. Herbert legal team with Vice President of 
the High Court Luis Sacramento; Judge Sacramento told the 
lawyers that if they filed an appeal directly to the High 
Court the next day, he would issue a suspension order a 
week later. 
 
5. (SBU) On January 19, Judge Sacramento issued a dispatch 
to the court in Inhambane, ordering the court to issue a 
suspension of its January 3 order, which had authorized 
eviction. (The October 2004 order was left untouched.) 
 
Provincial Judge Refuses to Comply 
---------------------------------- 
6. (SBU) The Inhambane judge refused to issue the order, 
however, allowing Inhambane police to continue occupying 
the Nyati Lodge, in defense of Mr. Potter and his 
partners. Emboff spoke with the Interior Minister Chief 
of Staff on January 24 and also on January 26. The 
official said that the provincial police could not act 
without an order from the provincial judge, and that the 
Ministry had its hands tied. Embassy legal counsel 
reinforced that opinion, and post decided that a meeting 
with the Minister of the Interior would not be productive. 
 
Foreign Minister Confirms Presidential, PM Involvement 
--------------------------------------------- --------- 
7. (C) On the afternoon of January 26, Ambassador raised 
with Foreign Minister Leonardo Simao the USG concern over 
the delay in enforcement of the court order. Simao 
confirmed that President Chissano had tried to help resolve 
the matter, and he said that Prime Minister Diogo had taken 
action in the last week as well. He said that the 
Mozambican system would not tolerate disobedient judges, 
but added that he could not say when he thought the 
situation would be reversed. He urged the Ambassador to 
talk with the Minister of Justice, Jose Abudo. He added 
that contacting the Minister of Interior would be neither 
appropriate nor effective. 
 
Possible Alternate Enforcement Method 
------------------------------------- 
8. (SBU) Later that afternoon, Mr. Herbert informed post 
that Judge Sacramento had told one of Herbert attorneys 
that morning that he (Sacramento) could not order the 
Interior Minister to enforce Sacramento order, but that 
the Executive, in the form of the Prime Minister, had the 
power to enforce judicial decisions by issuing orders to 
provincial governors, who are appointed by the Council of 
Ministers. It was not clear whether Mr. Herbert attorneys had already contacted the Prime Minister office. 
 
9. (SBU) Post reviewed this issue with legal counsel 
immediately, as it had been announced that the Chissano 
government would be dissolved as of midnight that night in 
preparation for the February 2 inauguration of 
President-elect Guebuza. Counsel, who had not heard of the 
mechanism, believed that the chain of command described by 
Mr. Herbert seemed plausible, but he could not guarantee 
that the mechanism was legal, or confirm that it was 
accepted practice. Post decided that the lack of 
information about precedent and procedure for this 
mechanism, the imminent dissolution of the government, and 
the fact that the Prime Minister was already engaged in the 
matter and presumably aware of her authority, meant that an 
approach would not be productive at that time. 
 
Presidential Advisor Expects Eventual Resolution 
--------------------------------------------- --- 
10. (C) On January 27, the Ambassador discussed the 
provincial judge defiance of the High Court dispatch with 
Ambassador Carlos dos Santos, a close adviser to President 
Chissano. Dos Santos confirmed that President Chissano had 
taken action. He further indicated that the Supreme Court 
dispatch was largely due to the efforts of Tourism Minister 
Sumbana. Dos Santos agreed that the insubordination of the 
provincial judge would not be allowed to stand. However, 
he asked for understanding of the delays, saying that the 
government was going through a difficult transition as 
government officials prepared to make way for the incoming 
government. On January 28, the Ambassador raised the case 
with Minister of Justice Abudo. The Ambassador spoke to 
Dos Santos again at the investiture of the new National 
Assembly on January 31, and dos Santos said he had made 
another approach to the head of the Supreme Court. He 
doubted that the outgoing Justice Minister could do much at 
this point, and he told the Ambassador he would get back to 
her. 
 
Obstruction Charges Against Herbert 
----------------------------------- 
11. (SBU) Separately, Mr. Herbert attended a hearing on 
January 27 to face obstruction of justice charges filed by 
Potter related to the October order. Post spoke with Mr. 
Herbert on January 26 and twice on January 27. Mr. Herbert 
declined post offer to have an officer attend the 
hearing, saying that the worst that could happen was that a 
trial could be ordered. The hearing was non-eventful; the 
prosecutor will continue to study the case, and no decision 
to hold a trial has been taken. 
 
Next Steps and Comment 
---------------------- 
12. (SBU) President-elect Guebuza takes office February 2, 
and we expect his ministers to be appointed that night or 
on the next day. Post will continue its efforts on behalf 
of Mr. Herbert with the new government on all appropriate 
occasions. 
LA LIME