US embassy cable - 02HARARE1826

C O N F I D E N T I A L HARARE 001826 
 
SIPDIS 
 
LONDON FOR CGURNEY 
PARIS FOR CNEARY 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL: 08/08/2012 
TAGS: PGOV, EAGR, ECON, ZI, Land Reform 
SUBJECT: POSSIBLE TEMPORARY REPRIEVE FOR SOME COMMERCIAL 
FARMERS 
 
REF: A) HARARE 1822 B) HARARE 1745 
 
Classified By: political section chief Matt Harrington.  Reasons: 1.5 ( 
B) and (D). 
 
 
 
1.  (C)  The day before the August 8 deadline for designated 
farmers to leave their properties (reftel), a High Court 
judge issued a ruling that could give a temporary reprieve to 
affected farmers.  Judge Charles Hungwe ruled that the 
government's acquisition of Tengwe Estates farm was "null and 
void" because proper procedures had not been followed. 
Specifically, the GOZ had failed to inform the National 
Merchant Bank, holder of owner Andrew Kockett's mortgage, of 
the acquisition, as required by the Land Acquisition Act. 
Kockett's attorney, Ray Barreto, told us that only his client 
had been served an acquisition notice.  Barreto surmised that 
the Government may not make its usual waves over this 
decision, as his client is currently growing winter wheat, a 
commodity soon expected to be in very short supply. 
 
2.  (C) Comment: An ex-combatant in Zimbabwe's liberation war 
and recent appointee to the High Court, Hungwe disapproves of 
the use to which war veterans have been put and is considered 
one of the more independent thinkers on the bench.  President 
Mugabe's recent comments on the judiciary (ref B) do not 
inspire confidence that Hungwe's decision will be honored. 
That said, the GOZ has tried to appear to act consistent with 
its own laws, and the failure to notify financial 
institutions holding the mortgages of designated commercial 
farms is a clear violation of the Land Acquisition Act. 
Hungwe's ruling could encourage other farmers to file suit, 
but it is unclear how many of them are in a similar position. 
 The GOZ has three principal response options.  It can ignore 
the ruling, but doing so removes the thin veneer of legality 
which currently envelops the fast track effort.  It can 
appeal the ruling to the Supreme Court, now firmly in ZANU-PF 
hands, but Hungwe appears to be on very solid legal ground. 
Third, it can comply with Hungwe's ruling and begin the 
acquisition process anew, which merely will delay the 
government's acquisition of designated land.  Hungwe's 
decision, therefore, has at best bought designated farmers a 
bit of extra time. 
 
3.  (U) Meanwhile, another case working its way through the 
courts could have an impact on the GOZ's resettlement 
program.  On July 4, High Court Judge Benjamin Paradza issued 
a provisional order that the acquisition of Nyalugwe Farm, 
owned by George Quinnell, was invalid.  According to Paradza, 
the holder of the mortgage had not been notified and 
Agriculture Minister Joseph Made, who signed the acquisition 
notice, ceased to be a government minister in legal terms on 
April 1.  The basis of his interpretation regarding Made is 
section 31 (e) of the constitution, which states that the 
"office of Vice-President, Minister, or Deputy Minister shall 
become vacant upon the assumption of office of a new 
President."  The opposition MDC and independent press have 
used that provision to maintain that President Mugabe's 
current cabinet has no legal standing, since all of its 
members held their positions prior to the March presidential 
election and have not since been reappointed.  However, 
Quinnell's lawyer, Ray Passaportis, told us that the issue of 
whether Mugabe meets the definition of "new president" is 
clearly open to interpretation.  Paradza has solicited and 
recently received a written GOZ response to his provisional 
order and has given the plaintiff a chance to submit a 
rebuttal. 
 
4.  (C) Comment: A decision by Paradza to uphold his earlier 
ruling would likely have little practical effect, as 
Government would certainly ignore the part of his judgment 
stating that the current Cabinet has no legal standing.  For 
the reasons explained in para 2, however, the element 
relating to failure to notify mortgage holders would be more 
difficult for the GOZ to dismiss out of hand. 
WHITEHEAD