US embassy cable - 02HARARE927

C O N F I D E N T I A L HARARE 000927 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
LONDON FOR CHARLES GURNEY 
PARIS FOR CHARLES NEARY 
NAIROBI FOR TERRY PFLAUMER 
 
E.O. 12958: DECL: 04/16/12 
TAGS: PGOV, PHUM, ZI 
SUBJECT: ZIMBABWE OPPOSITION FILES LEGAL CHALLENGE TO 
PRESIDENTIAL ELECTION 
 
REF: HARARE 913 
 
Classified by Political Officer Todd Faulk for reasons: 
1.5 (b) and (d). 
 
1.  (U) On April 12, the opposition Movement for 
Democratic Change (MDC) filed with the High Court a 135- 
page legal challenge to President Mugabe's declared 
victory in the March presidential poll.  The filing was 
made just before the 30-day deadline to submit electoral 
challenges elapsed.  The lawsuit calls for an annulment 
of the election result and a new election under 
international supervision.  In an April 11 press 
statement, MDC President Morgan Tsvangirai stated that 
the election "was stolen from the people of Zimbabwe," 
and that the MDC sees "the legal process as 
complementing the political process."  "Our lawyers have 
uncovered mountains of hardcore and powerful evidence of 
electoral fraud," Tsvangirai claimed, but he clearly 
acknowledged that the legal case's biggest hurdle is 
overcoming the judicial system subverted by the ruling 
party. 
 
2.  (C) On April 15, poloff spoke to Topper Whitehead, 
who gathered most of the information presented in the 
legal challenge.  He is an MDC supporter, but holds no 
official position in the party.  Whitehead stated that 
President Mugabe, along with Registrar-General Tobaiwa 
Mudede, Minister of Justice Patrick Chinamasa, and 
Electoral Supervisory Chairman Sobusa Gula-Ndebele, are 
respondents in the case.  All have been served with 
papers to appear in court, except Mugabe, whose office 
refuses to accept them; there are ways around this, 
Whitehead said, but it would lead to delays in the court 
hearing the case.  Whitehead conveyed that the MDC is 
gathering affidavits from polling agents, presiding 
officers and voters who can attest to instances of 
electoral fraud.  Thousands of pages of documentation 
and videotape from hundreds of eyewitnesses have already 
been gathered.  One of the reasons the MDC is going to 
court over the election, Whitehead opined, is to provide 
leverage in the talks with ZANU-PF due to reconvene on 
May 13 (REFTEL).  The MDC would like to have the option 
of dropping the case if the talks lead to some sort of 
resolution. 
 
3.  (C) In a related development, Whitehead informed 
poloff that last week the Supreme Court ruled against an 
earlier MDC legal measure challenging the validity of 
Section 158 of the Electoral Act, which gives Mugabe the 
power to issue decrees regarding the conduct of 
elections.  It was a 4-to-1 decision in which Wilson 
Sandura was the only dissenter.  A copy of the decision 
has not been made available to the MDC yet, Whitehead 
added, but the Court basically ruled that the issue was 
not a constitutional one and should be heard in the High 
Court first.  As a result, the Section 158 challenge has 
now been incorporated into the MDC's latest lawsuit. 
 
4.  (C) Comment: We have been told by several MDC 
officials that the MDC has no hope of success in its 
legal challenge of the election but that it wants to 
pursue all possible avenues and be seen as taking some 
kind of action.  It is also a useful bargaining chip in 
the inter-party talks -- one of the few the opposition 
has left.  It is too early to tell how the case will 
proceed in the courts, but experience suggests ZANU-PF 
will use its influence to ensure the courts drag out the 
proceedings -- and consume the MDC's resources -- before 
ultimately throwing the case out.  End comment. 
 
Whitehead