This record is a partial extract of the original cable. The full text of the original cable is not available.

261212Z Jan 01


                           CONFIDENTIAL     PTQ0479

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FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 8104
INFO NSC WASHDC IMMEDIATE
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
AMEMBASSY NAIROBI

C O N F I D E N T I A L SECTION 01 OF 03 HARARE 000538 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR 
LONDON FOR GURNEY 
PARIS FOR WILLIAMS 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL. 01/26/11 
TAGS: PGOV PHUM PINS PINR ZI
SUBJECT:  ZIMBABWEAN SUPREME COURT CHIEF JUSTICE HOLDS FIRM 
IN FACE OF INTIMIDATION 
 
 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  00538  01 OF 03  261215Z 
CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING.  REASONS: 1.5 
(B) AND (D). 
 
REF:  HARARE 507 
 
SUMMARY 
------- 
 
¶1.  (C) THE CHIEF JUSTICE OF ZIMBABWE'S SUPREME COURT, 
ANTHONY GUBBAY, TOLD CHARGE ON JANUARY 26 THAT ZANU-PF 
WANTS TO FIND A WAY TO FORCE HIM AND HIS FOUR COLLEAGUES 
OFF THE COURT.  IN A MEETING SEVERAL DAYS EARLIER, VICE 
PRESIDENT MUZENDA REPORTEDLY ACCUSED GUBBAY, WHO IS WHITE, 
OF BEING A RACIST BECAUSE HE HAS RULED AGAINST THE 
GOVERNMENT IN KEY CASES.  THE VICE PRESIDENT ALSO DISMISSED 
THE CHIEF JUSTICE'S REQUEST FOR PROTECTION AGAINST 
INCREASING HARASSMENT BY SO-CALLED WAR VETERANS.  GUBBAY 
WAS GRATEFUL FOR THE PRACTICAL AND MORAL SUPPORT HE HAS 
RECEIVED FROM THE DIPLOMATIC COMMUNITY, BUT EXPRESSED 
CONCERN THAT ANY PUBLIC STATEMENTS OF SUPPORT MIGHT BE 
COUNTERPRODUCTIVE.  THE DEPARTMENT MAY WISH TO CONSIDER 
APPROPRIATE WAYS IN WHICH WE MIGHT SIGNAL INTERNATIONAL 
CONFIDENCE IN THE INDEPENDENCE OF THE JUDICIARY, FOR NOW 
THE LAST CHECK ON PRESIDENT MUGABE'S EXERCISE OF 
UNTRAMMELED POWER.  END SUMMARY. 
 
¶2.  (C) CHARGE, ACCOMPANIED BY POLOFF, CALLED ON ZIMBABWEAN 
CHIEF JUSTICE ANTHONY GUBBAY ON JANUARY 26.  CHARGE 
EXPRESSED U.S. CONCERN ABOUT THE EXECUTIVE BRANCH'S 
INCREASING CRITICISM OF THE JUDICIARY, AND INTIMIDATION AND 
HARASSMENT OF ITS JUSTICES BY SO-CALLED WAR VETERANS, AND 
                       CONFIDENTIAL 
 
PAGE 03        HARARE  00538  01 OF 03  261215Z 
ASKED HOW GUBBAY WAS HOLDING UP.  GUBBAY SAID THE SUPREME 
COURT HAS ALWAYS RECEIVED SIGNIFICANT SUPPORT FROM THE 
UNITED STATES AND ITS EMBASSY IN HARARE, AND HE WAS 
GRATEFUL.   HE ACKNOWLEDGED THAT IT WAS INCREASINGLY 
DIFFICULT FOR THE COURT'S JUSTICES TO DO THEIR WORK UNDER 
CURRENT CIRCUMSTANCES. 
 
MEETING WITH VICE PRESIDENT MUZENDA 
----------------------------------- 
 
¶3.  (C)  GUBBAY SAID HE HAD BEEN TERRIBLY UPSET AFTER HIS 
MEETING ON JANUARY 22 WITH VICE PRESIDENT MUZENDA.  (NOTE: 
GUBBAY HAD SOUGHT THE MEETING TO REQUEST PROTECTION AGAINST 
INCREASING INTIMIDATION BY WAR VETERANS.  IN NOVEMBER, A 
GROUP OF ANGRY VETERANS INVADED THE SUPREME COURT TO 
PROTEST THE COURT'S RULING AGAINST THE GOVERNMENT'S FAST 
TRACK RESETTLEMENT PROGRAM.  IN DECEMBER, WAR VETERANS 
ISSUED A STATEMENT SAYING SUPREME COURT JUSTICES WOULD BE 
ATTACKED IN THEIR HOMES IF THEY DID NOT RESIGN WITHIN TWO 
WEEKS.  END NOTE.)  MUZENDA REPORTEDLY REFUSED TO TAKE 
STEPS TO IMPROVE THE SECURITY OF THE COURT AND ITS 
JUSTICES, SAYING IT WAS THE WAR VETERANS WHO FELT 
THREATENED BY THE COURT.  GUBBAY WAS SURPRISED AT MUZENDA'S 
DEEP ANTAGONISM AGAINST HIM.  THE VICE-PRESIDENT ACCUSED 
GUBBAY, WHO IS WHITE, OF BEING RACIST, BLAMED HIM FOR ALL 
THE SIGNIFICANT CASES THE GOVERNMENT HAS LOST, AND SAID 
GUBBAY'S RETIREMENT WAS UNDER DISCUSSION BY THE CABINET. 
 
DETERMINED TO REMAIN FIRM 
------------------------- 
 
                       CONFIDENTIAL 
 
PAGE 04        HARARE  00538  01 OF 03  261215Z 
¶4.  (C)  GUBBAY SAID HE AND HIS COLLEAGUES ON THE COUNTRY'S 
HIGHEST BENCH WORK WELL TOGETHER.  NONE OF THEM RENDER 
JUDGMENTS BASED ON POLITICAL CONSIDERATIONS, HE INSISTED, 
BUT RULE AS THEY THINK IS FAIR AND JUST.  HE IS CONVINCED 
THAT THE EXECUTIVE BRANCH WANTS HIM AND THE COURT'S FOUR 
OTHER JUSTICES OUT, AND THAT MINISTER OF INFORMATION AND 
PUBLICITY JONATHAN MOYO AND JUSTICE MINISTER PATRICK 
CHINAMASA ARE LEADING THE CHARGE.  (NOTE:  CHINAMASA 
RECENTLY TOLD JOURNALISTS THE JUSTICES SHOULD BE REPLACED 
BECAUSE THEY WERE COLONIALIST HOLDOVERS FROM THE IAN SMITH 
REGIME.  END NOTE.)  GUBBAY AND HIS FELLOW, JUSTICES, 
HOWEVER, ARE "DETERMINED TO REMAIN FIRM AND BATTLE ON." 
GUBBAY NOTED THAT HE REACHES HIS MANDATORY RETIREMENT AGE 
OF 70 IN APRIL 2002.  HE MIGHT TAKE FOUR MONTHS OF 
ACCUMULATED LEAVE PRIOR TO THAT DATE, HOWEVER, MEANING A DE 
FACTO DEPARTURE FROM THE COURT AT THE END OF THIS YEAR. 
GUBBAY NOTED, WITHOUT ELABORATING, THAT TWO OTHER JUSTICES 
MIGHT ALSO CHOOSE TO STEP DOWN BY THE END OF 2001. 
 
REMOVING A JUDGE NOT EASY 
------------------------- 
 
¶5.  (C) GUBBAY EXPLAINED THAT IT IS EXTREMELY DIFFICULT TO 
REMOVE A JUDGE PRIOR TO THE MANDATORY RETIREMENT AGE OF 70. 
HE CITED THE ABSENCE OF A JUDICIAL CODE OF CONDUCT AS THE 
 
                       CONFIDENTIAL 
 
                           CONFIDENTIAL     PTQ0480 
 
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                  ------------------BBF1A1  261215Z /38 
O 261212Z JAN 01 
FM AMEMBASSY HARARE 
TO SECSTATE WASHDC IMMEDIATE 8105 
INFO NSC WASHDC IMMEDIATE 
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 
AMEMBASSY NAIROBI 
 
C O N F I D E N T I A L SECTION 02 OF 03 HARARE 000538 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR 
LONDON FOR GURNEY 
PARIS FOR WILLIAMS 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL. 01/26/11 
TAGS: PGOV PHUM PINS PINR ZI
SUBJECT:  ZIMBABWEAN SUPREME COURT CHIEF JUSTICE HOLDS FIRM 
IN FACE OF INTIMIDATION 
 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  00538  02 OF 03  261215Z 
PRINCIPAL GUARANTEE OF THE JUDGES' TENURE.  IN FACT, IN 
ZIMBABWE'S HISTORY, ONLY ONE MEMBER OF THE BENCH HAS BEEN 
EXPELLED FOR MISCONDUCT.  IF ANY JUDGE BELOW THE CHIEF 
JUSTICE IS ACCUSED OF MALFEASANCE, THE PRESIDENT CANNOT 
TAKE ANY ACTION UNLESS THE CHIEF JUSTICE REQUESTS THAT HE 
APPOINT A SPECIAL INVESTIGATIVE TRIBUNAL.  IF THE CHIEF 
JUSTICE HIMSELF IS ACCUSED OF MISCONDUCT, THE PRESIDENT CAN 
TAKE THE INITIATIVE IN APPOINTING THE TRIBUNAL, WHICH 
NORMALLY COMPRISES A SENIOR JUDGE FROM A NEIGHBORING 
COUNTRY AND TWO JURISTS RECOMMENDED BY THE NATIONAL LAW 
SOCIETY OF ZIMBABWE.  BOTH THE TRIBUNAL AND THE JUDICIAL 
SERVICES COMMISSION, ON WHICH GUBBAY SITS, MUST RECOMMEND A 
JUDGE'S REMOVAL IN ORDER FOR THE PRESIDENT TO TAKE SUCH A 
STEP. 
 
¶6.  (C) GIVEN THE DIFFICULTY OF THIS AVENUE, GUBBAY 
SURMISED THAT PRESIDENT MUGABE MIGHT TRY TO FORCE THROUGH 
PARLIAMENT A RECENTLY-INTRODUCED BILL CALLING FOR THE CHIEF 
JUSTICE'S IMPEACHMENT, BUT HE WAS DISMISSIVE OF SUCH AN 
EFFORT, STATING THAT THE LEGISLATIVE BODY HAS NO 
JURISDICTION OVER THE SUPREME COURT.  GUBBAY SAID HE WAS 
PROUD OF HIS RECORD AS CHIEF JUSTICE, AND THAT THE 
GOVERNMENT WOULD HAVE TO MANUFACTURE EVIDENCE IF IT 
INTENDED TO TRY TO ACCUSE HIM OF MISCONDUCT. 
 
SECURITY HIS MAIN CONCERN 
------------------------- 
 
¶7.  (C) GUBBAY SAID HIS MAIN WORRY FOR NOW IS PROTECTING 
THE SECURITY OF THE COURT AND ITS JUSTICES.  ASKED WHETHER 
THE GOZ PROVIDES A BODYGUARD FOR HIM, HE SAID NO, AND HE 
                       CONFIDENTIAL 
 
PAGE 03        HARARE  00538  02 OF 03  261215Z 
WAS NOT INTERESTED IN ONE, AS SUCH PROTECTION CERTAINLY 
WOULD BE PROVIDED BY AN AGENT OF THE CENTRAL INTELLIGENCE 
ORGANIZATION (CIO).  INDIVIDUAL POLICE OFFICERS ARE POSTED 
AT EACH OF THE JUSTICES' HOUSES, BUT THEY ARE YOUNG AND 
WOULD BE UNABLE TO PREVENT AN INVASION BY GROUPS SEEKING TO 
DO HARM.   GUBBAY NOTED THAT THE SEVERAL DEMONSTRATIONS 
HELD BY SO-CALLED WAR VETERANS IN FRONT OF THE COURT WERE 
EXTREMELY WELL-ORGANIZED, CONSISTED OF A SIGNIFICANT NUMBER 
OF ILLITERATE WOMEN BUSED IN FROM THE HIGH-DENSITY SUBURBS, 
WITH LITTLE IDEA WHY THEY WERE THERE, HOLDING UP 
PROFESSIONALLY-PRINTED PLACARDS. 
 
WHY NOT JUST IGNORE JUDICIAL RULINGS 
------------------------------------ 
 
¶8.  (C) CHARGE ASKED WHY THE GOVERNMENT FELT IT NECESSARY 
TO GO BEYOND MERELY IGNORING THE SUPREME COURT'S RULINGS -- 
ON THE FAST TRACK RESETTLEMENT EXERCISE, FOR EXAMPLE -- TO 
QUESTIONING THE MOTIVES OF ITS JUSTICES AND SUBJECTING THEM 
TO AN APPARENTLY ORCHESTRATED CAMPAIGN OF INTIMIDATION. 
THE GOVERNMENT, GUBBAY REPLIED, WOULD MUCH PREFER TO HAVE 
THE JUDICIARY ENDORSE THE GOVERNMENT'S FAST TRACK PROGRAM 
AS CONSISTENT WITH ZIMBABWEAN LAW AND THE CONSTITUTION, 
WHICH IT IS NOT.  JUDICIAL RULINGS THAT THE GOVERNMENT'S 
ACTIONS ARE UNLAWFUL OR UNCONSTITUTIONAL GIVES IT A 
TERRIBLE IMAGE IN THE EYES OF THE INTERNATIONAL COMMUNITY. 
NO SENSIBLE PERSON OPPOSES LAND REFORM, GUBBAY INSISTED, 
BUT WHO, HE ASKED, IS RESPONSIBLE FOR THE DELAY?  THE 
GOVERNMENT HAS HAD 20 YEARS TO IMPLEMENT A FAIR PROCESS, 
BUT HAS FAILED TO DO SO. 
 
                       CONFIDENTIAL 
 
PAGE 04        HARARE  00538  02 OF 03  261215Z 
ZANU-PF WILL REFUSE TO GO EVEN IF IT LOSES IN 2002 
--------------------------------------------- ----- 
 
¶9.  (C) GUBBAY CONFIRMED THAT THE UPCOMING PRESIDENTIAL 
ELECTION MUST BE HELD BETWEEN JANUARY 1 AND MARCH 31, 2002. 
ASKED WHETHER THE PRESIDENT COULD RESIGN AND LEGALLY CALL A 
SNAP ELECTION LATER THIS YEAR, THE CHIEF JUSTICE WAS 
UNSURE, WITHOUT ADDITIONAL STUDY, WHETHER THE CONSTITUTION 
WOULD PERMIT SUCH A MOVE.   GUBBAY (STRICTLY PROTECT) 
OFFERED HIS PERSONAL VIEW THAT, EVEN IF ZANU-PF LOSES THE 
PRESIDENTIAL ELECTION, THE PARTY WILL NOT AGREE TO HAND 
OVER POWER. 
 
U.S. ASSISTANCE 
--------------- 
 
¶10.  (C) CHARGE PRAISED GUBBAY'S COURAGE DURING THESE 
TRYING TIMES, AND ASKED HOW THE UNITED STATES MIGHT BE OF 
ASSISTANCE.  GUBBAY WAS GRATEFUL FOR THE OFFER, BUT ASKED 
THAT THE U.S. NOT ISSUE ANY PUBLIC STATEMENTS OF SUPPORT, 
AS THIS WOULD ONLY OPEN US UP TO CRITICISM THAT WE WERE 
TAKING SIDES.   HE EXPRESSED GENUINE APPRECIATION FOR THE 
OUTSTANDING SUPPORT THE JUDICIARY HAS RECEIVED FROM THE 
DIPLOMATIC COMMUNITY HERE, AND NOTED THAT HE HAS RECEIVED 
LETTERS OF ENCOURAGEMENT FROM AROUND THE WORLD. 
 
                       CONFIDENTIAL 
 
                           CONFIDENTIAL     PTQ0481 
 
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O 261212Z JAN 01 
FM AMEMBASSY HARARE 
TO SECSTATE WASHDC IMMEDIATE 8106 
INFO NSC WASHDC IMMEDIATE 
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 
AMEMBASSY NAIROBI 
 
C O N F I D E N T I A L SECTION 03 OF 03 HARARE 000538 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR 
LONDON FOR GURNEY 
PARIS FOR WILLIAMS 
NAIROBI FOR PFLAUMER 
 
E.O. 12958: DECL. 01/26/11 
TAGS: PGOV PHUM PINS PINR ZI
SUBJECT:  ZIMBABWEAN SUPREME COURT CHIEF JUSTICE HOLDS FIRM 
IN FACE OF INTIMIDATION 
 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  00538  03 OF 03  261215Z 
 
COMMENT 
------- 
 
¶11. (C) GUBBAY WAS APPOINTED CHIEF JUSTICE BY PRESIDENT 
MUGABE IN 1990.  HE IS A THOUGHTFUL, WELL-RESPECTED JURIST, 
WHO, AS ONE OBSERVER RECENTLY COMMENTED, DOES NOT HAVE A 
POLITICAL BONE IN HIS BODY.  THE GOVERNMENT'S ORCHESTRATED 
EFFORTS TO INTIMIDATE AND SMEAR GUBBAY AND OTHER JUSTICES 
CLEARLY TROUBLE HIM, BUT WE ARE IMPRESSED BY HIS 
DETERMINATION NOT TO GIVE IN TO SUCH HARASSMENT.  VICE- 
PRESIDENT MUZENDA'S RIDICULOUS COMMENT THAT WAR VETERANS 
FEEL THREATENED BY THE COURT'S RULINGS AND HIS REFUSAL TO 
AUTHORIZE INCREASED SECURITY FOR GUBBAY AND HIS COLLEAGUES 
SUGGEST THAT WE ARE LIKELY TO SEE CONTINUING ATTACKS ON THE 
JUDICIARY.  GIVEN THE DIFFICULTY OF REMOVING SITTING 
JUDGES, MUGABE'S GOAL APPEARS TO BE TO TRY TO HOUND GUBBAY 
AND OTHER INDEPENDENT-MINDED JUDGES INTO RESIGNING SO THAT 
HE CAN REPLACE THEM WITH THOSE WHO ARE WILLING TO DO HIS 
BIDDING. 
 
¶12.  (C) THE DEPARTMENT MAY WISH TO CONSIDER CONVEYING 
INTERNATIONAL CONFIDENCE IN THE SUPREME COURT'S 
INDEPENDENCE, IN A WAY THAT BOTH BOLSTERS THE BESIEGED 
JUSTICES AND SENDS A MESSAGE TO ZANU-PF THAT ITS ATTACKS ON 
THE JUDICIARY HAVE NOT GONE UNNOTICED.   GIVEN GUBBAY'S 
CONCERN THAT A PUBLIC STATEMENT ALONG THESE LINES MIGHT BE 
COUNTERPRODUCTIVE, PERHAPS A LETTER OF SUPPORT FROM U.S. 
CHIEF JUSTICE REHNQUIST TO GUBBAY MIGHT BE AN EFFECTIVE 
APPROACH. 
 
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IRVING 
 
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>