US embassy cable - 02HARARE1453

C O N F I D E N T I A L HARARE 001453 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JFRAZER 
LONDON FOR CGURNEY 
PARIS FOR CNEARY 
 
E.O. 12958: DECL: 06/19/2012 
TAGS: PGOV, PHUM, ASEC, EAID, ZI 
SUBJECT: ZIMBABWE GOVERNMENT BANS SOUTH AFRICAN LAWYER FROM 
ASSISTING MDC LEGAL CHALLENGE TO ELECTION 
 
 
Classified By: Political Officer Todd Faulk for reasons 1.5 (b) 
and (d) 
 
1.  (SBU) The June 19 edition of the independent "Daily News" 
reported that the Government of Zimbabwe (GOZ) has denied MDC 
President Morgan Tsvangirai's request to have renowned South 
African attorney Jeremy Gauntlett represent him in the MDC's 
legal challenge to the March presidential election. 
According to the article and embassy sources, for a senior 
attorney or advocate from outside the country to argue cases 
in Zimbabwe, the Minister of Justice (MOJ) must grant an 
exemption certificate in order for the trial to proceed.  In 
Gauntlett's case, the Ministry of Justice permsec argued that 
the legal challenge "is not so complex as to require the 
services of a legal practitioner from outside Zimbabwe.  The 
country has, in fact, a number of Senior Counsels who can 
effectively represent your client," the article quoted.  The 
permsec also stated that the MDC should obtain a commitment 
from the Reserve Bank of Zimbabwe for the forex to pay for 
the services of the South African attorney.  (Comment: The 
Reserve Bank, which has a long waiting list for forex, would 
most certainly not give it to the MDC.  This would increase 
the Zim dollar cost to the MDC by about ten times if it went 
to the parallel market.  End comment.) 
 
2.  (C) Gandi Mudzingwa, Tsvangirai's principal assistant, 
told poloff that Minister of Justice Patrick Chinamasa has 
decided to make a political issue out the case.  After 
consulting with the MDC's lawyers, Mudzingwa believed that 
the only issue is whether or not Gauntlett is registered to 
practice law in Zimbabwe.  However, according to the 
embassy's political assistant, who was a practicing attorney 
in Zimbabwe, the Legal Practitioners' Act is clear on 
stipulating that it is entirely up to the Justice Minister to 
decide whether or not to grant an exemption to foreign 
attorneys.  If Gauntlett is registered here, then MOJ 
permission is not necessary.  However, if he is not 
registered, then the most he could do is draft papers and 
give free advice and instructions to the MDC's local 
attorneys.  He could not sit on the bench in court, argue the 
case before the judge, or be named on any documents.  He 
would not be entitled to legal fees under the law, either, 
according to our assistant.  Furthermore, registering to 
practice law in Zimbabwe is a lengthy and cumbersome 
process--it requires sitting for five exams--and there are 
not many foreign attorneys who have done it.  It is not clear 
whether Gauntlett is registered in Zimbabwe, but we presume 
that he is not since the MDC applied for an exemption with 
the High Court. 
 
3.  (C) Comment: Anyone intending to pay Gauntlett for his 
services in the MDC's legal challenge is on shaky legal 
ground.  It might be possible for Gauntlett to agree to 
provide pro bono services in the case, but given the 
restrictions described above on Gauntlett's ability to 
operate in Zimbabwe, he may be more apt to offer limited free 
advice in any case.  The MDC's options appear limited since 
there are not many South African attorneys registered in 
Zimbabwe, and local senior counsels are subject to 
intimidation and harassment.  Since the MOJ must grant 
exemptions to foreign attorneys on a case-by-case basis, and 
for only a limited period of time, the GOZ could repeatedly 
use this tactic to tilt in its favor the legal challenge 
playing field.  End comment. 
 
SULLIVAN