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

040833Z Jan 02


                           CONFIDENTIAL     PTQ6228

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FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 0643
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 02 HARARE 000038 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
LONDON FOR CHARLES GURNEY 
PARIS FOR CHARLES NEARY 
NAIROBI FOR TERRY PFLAUMER 
 
E.O. 12958: DECL: 01/04/12 
TAGS: PGOV PHUM PINR PHUM PINR ZI
SUBJECT: LOSS OF TWO ZIMBABWE SUPREME COURT JUSTICES 
STRENGTHENS ZANU-PF'S INFLUENCE OVER BENCH 
 
REFS: A) '01 HARARE 3631, B) '01 HARARE 2345, 
 
      C) '01 HARARE 766 
 
CLASSIFIED BY POLITICAL OFFICER TODD FAULK FOR REASONS: 
1.5 (B) AND (D). 
 
¶1.  (C) SUMMARY: THE DECEMBER 27 DEATH OF SUPREME COURT 
JUSTICE SIMBARASHE MUCHECHETERE AND THE DECEMBER 31 
RETIREMENT OF JUSTICE NICHOLAS MCNALLY BRINGS INTO 
QUESTION THE FUTURE ROLE OF WHAT HAS STOOD AS AN AFRICAN 
MODEL OF JUDICIAL INDEPENDENCE.  ONLY TWO OF THE SIX 
REMAINING MEMBERS CAN BE DESCRIBED AS VERIFIABLY 
INDEPENDENT.  CHIEF JUSTICE GODFREY CHIDYAUSIKU HAS 
ALREADY PROVEN HIMSELF AS AN INSTRUMENT OF ZANU-PF, AND 
THE ROLE OF THE REMAINING THREE JUSTICES REMAINS UNCLEAR, 
DESPITE INITIAL INDICATIONS THAT THEY TOO MAY BE 
FAVORABLE TO THE ZANU-PF AGENDA.  HOW GROUPS PLANNING 
CONSTITUTIONAL CHALLENGES TO PENDING REPRESSIVE 
LEGISLATION FARE IN THEIR LEGAL CASES WILL CLARIFY THE 
ULTIMATE POSTURE OF THE BENCH.  END SUMMARY. 
 
LOSS OF TWO INDEPENDENTS 
------------------------ 
 
¶2.  (C) EARLY ON DECEMBER 27, SUPREME COURT JUSTICE 
SIMBARASHE MUCHECHETERE, AGE 57, DIED IN HIS BULAWAYO 
HOME, REPORTEDLY FROM MALARIA COMPLICATIONS. 
MUCHECHETERE'S SUDDEN DEATH CAME AS A SURPRISE BECAUSE 
HE WAS BELIEVED TO BE IN GOOD HEALTH.  HE WAS WELL- 
REGARDED ON THE BENCH, ON WHICH HE HAD SERVED SINCE 
1993, AND WAS GENERALLY VIEWED AS INDEPENDENT OF PARTY 
                       CONFIDENTIAL 
 
PAGE 03        HARARE  00038  01 OF 02  041117Z 
POLITICS.  ON DECEMBER 31, JUSTICE NICHOLAS MCNALLY 
OFFICIALLY RETIRED FROM THE HIGHEST COURT AFTER REACHING 
THE MANDATORY RETIREMENT AGE OF 70.  (NOTE: ZIMBABWEAN 
JUDGES NORMALLY MUST RETIRE AT 65, BUT IF THEY CAN 
DEMONSTRATE GOOD MENTAL AND PHYSICAL HEALTH TO A DOCTOR, 
THEY CAN STAY ON TO THE AGE OF 70, AFTER WHICH NO 
EXTENSION IS POSSIBLE.  END NOTE.)  IN FEBRUARY 2001, 
JUSTICE MINISTER PATRICK CHINAMASA ATTEMPTED TO FORCE 
MCNALLY INTO EARLY RETIREMENT -- AFTER SUCCESSFULLY 
DOING SO WITH CHIEF JUSTICE ANTHONY GUBBAY -- BUT 
MCNALLY RESISTED.  MCNALLY WAS KNOWN LOCALLY FOR HIS 
RESPECT OF THE LAW.  (NOTE: THE JANUARY 3 EDITION OF THE 
GOVERNMENT-CONTROLLED "THE HERALD" REPORTED THAT HIGH 
COURT JUDGE DAVID BARTLETT UNEXPECTEDLY RESIGNED ON 
DECEMBER 31; BARTLETT COULD LEAVE OFFICE AS SOON AS 
FEBRUARY 28.  BARTLETT IS THE FOURTH HIGH COURT JUDGE TO 
RESIGN IN THE LAST YEAR.  END NOTE.) 
 
MUGABE IS CLOSER TO HAVING HIS IDEAL COURT 
------------------------------------------ 
 
¶3.  (C) THE DEPARTURE OF TWO INDEPENDENT JUSTICES LEAVES 
THE ZIMBABWE SUPREME COURT UNDER THE INFLUENCE OF ZANU- 
PF.  MUGABE REPLACED GUBBAY WITH ZANU-PF SYCOPHANT 
GODFREY CHIDYAUSIKU AND APPOINTED THREE NEW MEMBERS TO 
THE BENCH IN AUGUST 2001, EXPANDING THE BENCH FROM FIVE 
TO EIGHT MEMBERS.  OF THE SIX REMAINING MEMBERS, ONLY 
TWO CAN BE DESCRIBED AS INDEPENDENT; THE OTHER FOUR ARE 
BEGINNING TO LOOK AMENABLE TO THE RULING PARTY'S LEGAL 
AGENDA.  BELOW IS A SUMMARY OF WHAT WE KNOW ABOUT THE 
REMAINING SIX: 
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PAGE 04        HARARE  00038  01 OF 02  041117Z 
 
-- CHIEF JUSTICE GODFREY CHIDYAUSIKU, AGE 54: FORMER 
JUDGE PRESIDENT OF THE HIGH COURT, BECAME ACTING CHIEF 
JUSTICE IN MARCH 2001 AFTER GUBBAY WAS FORCED TO RETIRE; 
OFFICIALLY APPOINTED IN AUGUST 2001.  CHIDYAUSIKU'S 
LINKS TO ZANU-PF ARE WIDELY KNOWN: HE SERVED IN TWO 
DEPUTY MINISTERIAL POSITIONS IN THE EARLY 1980S AND WAS 
CHAIRMAN OF THE GOVERNMENT'S CONSTITUTIONAL COMMISSION 
IN 1999; OUR CONTACTS TELL US HE IS ALSO SLATED TO 
RECEIVE PROPERTY UNDER THE GOVERNMENT'S LAND 
REDISTRIBUTION PROGRAM.  CHIDYAUSIKU WROTE THE DECEMBER 
3, 2001 DECISION THAT ESSENTIALLY LEGALIZED THE 
GOVERNMENT'S SEIZURE OF COMMERCIAL FARMING PROPERTY (REF 
A).  A GROUP OF BLACK ZIMBABWEAN LAWYERS CIRCULATED A 
LETTER BEFORE CHIDYAUSIKU'S APPOINTMENT CALLING HIM 
"MORALLY UNFIT" TO SERVE AS CHIEF JUSTICE AND CITED 
CASES OF WOMANIZING, PUBLIC OUTBURSTS, SEXUAL 
HARASSMENT, AND PHYSICAL ASSAULT. 
 
-- JUSTICE MISHECK CHEDA: JUDGE OF THE BULAWAYO HIGH 
COURT FROM 1991 UNTIL HIS APPOINTMENT TO THE SUPREME 
COURT IN AUGUST 2001; SERVED AS PERMANENT SECRETARY FOR 
MINISTRY OF JUSTICE 1989-1991.  CHEDA HAS BEEN DESCRIBED 
AS A SOUND JUDGE AND IS A FORMER CRITIC OF CHIDYAUSIKU'S 
PRO-GOVERNMENT RULINGS.  HOWEVER, CHEDA WENT ALONG WITH 
 
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                           CONFIDENTIAL     PTQ6230 
 
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O 040833Z JAN 02 
FM AMEMBASSY HARARE 
TO SECSTATE WASHDC IMMEDIATE 0644 
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 02 HARARE 000038 
 
SIPDIS 
 
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER 
LONDON FOR CHARLES GURNEY 
PARIS FOR CHARLES NEARY 
NAIROBI FOR TERRY PFLAUMER 
 
E.O. 12958: DECL: 01/04/12 
TAGS: PGOV PHUM PINR PHUM PINR ZI
SUBJECT: LOSS OF TWO ZIMBABWE SUPREME COURT JUSTICES 
STRENGTHENS ZANU-PF'S INFLUENCE OVER BENCH 
 
                       CONFIDENTIAL 
 
PAGE 02        HARARE  00038  02 OF 02  041117Z 
THE DECEMBER LAND DECISION LEGALIZING FARM SEIZURES. 
 
-- JUSTICE LUKE MALABA: JUDGE OF THE BULAWAYO HIGH COURT 
FROM 1994 UNTIL HIS APPOINTMENT IN AUGUST 2001; ONCE 
DESCRIBED AS ONE OF THE MOST CAPABLE LAWYERS IN 
MATABELELAND; HAS A STRONG HUMAN RIGHTS BACKGROUND, BUT 
SIGNED ONTO THE DECEMBER LAND RULING. 
 
-- JUSTICE VERNANDA ZIYAMBI: THE FIRST FEMALE ZIMBABWE 
SUPREME COURT JUSTICE; FORMER JUDGE OF THE HARARE HIGH 
COURT.  ZIYAMBI HAS SOMEWHAT WEAKER LEGAL CREDENTIALS 
THAN HER COUNTERPARTS, BUT IS REPORTED TO HAVE STRONG 
RELIGIOUS CONVICTIONS.  ZIYAMBI'S HUSBAND WAS MINISTER 
OF JUSTICE UNTIL HE DIED IN A CAR ACCIDENT IN 1991. 
ZIYAMBI'S CHILDREN REPORTEDLY BLAME ZANU-PF FOR 
ORCHESTRATING HIS DEATH, BUT IT IS UNCLEAR WHETHER 
ZIYAMBI DOES AS WELL. 
 
-- JUSTICE AHMED IBRAHIM, AGE 64: THE LONGEST-SERVING 
MEMBER OF THE CURRENT BENCH (SINCE 1990); THE MOST 
PROMINENT MUSLIM IN ZIMBABWE AND PRESIDENT OF THE LOCAL 
ISLAMIC CULTURAL SOCIETY; WELL-KNOWN FOR HIS RESPECT OF 
THE LAW AND INDEPENDENT THINKING.  IBRAHIM SERVED IN THE 
ATTORNEY-GENERAL'S OFFICE IN THE EARLY 1980S BEFORE HIS 
HIGH COURT APPOINTMENT IN 1984.  JUSTICE MINISTER 
CHINAMASA ATTEMPTED TO STRONG-ARM HIM INTO RESIGNING IN 
FEBRUARY 2001 BUT INTERNATIONAL SUPPORT REPORTEDLY 
CONVINCED HIM TO STAY. 
 
-- JUSTICE WILSON SANDURA, AGE 60: ON THE BENCH SINCE 
1998, HE IS THE COURT'S MOST SENIOR BLACK MEMBER.  HE 
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PAGE 03        HARARE  00038  02 OF 02  041117Z 
SERVED AS A HIGH COURT JUDGE BETWEEN 1983 AND 1997, 
INCLUDING AS JUDGE PRESIDENT FROM 1984.  SANDURA IS 
WIDELY RESPECTED FOR HIS NON-PARTISAN READING OF THE LAW 
AND IS VIEWED AS ONE OF THE TWO LAST REMAINING 
INDEPENDENTS. 
 
COMMENT: COURT UNDER ZANU-PF INFLUENCE 
-------------------------------------- 
 
¶4.  (C) ONE OF THE MOST RESPECTED JUDICIAL INSTITUTIONS 
IN AFRICA AND ONE OF THE GOVERNMENT'S MOST OUTSPOKEN 
WATCHDOGS IS IN DANGER OF BECOMING A RUBBER STAMP FOR 
THE GOZ AND THE ZANU-PF RULING PARTY.  THE DEPARTURE OF 
TWO INDEPENDENT JUSTICES PUTS MUGABE'S RECENT -- AND 
POSSIBLY MORE PLIABLE -- APPOINTMENTS IN A CLEAR 
MAJORITY ON THE BENCH.  OUR SOURCES TELL US THAT CHIEF 
JUSTICE CHIDYAUSIKU IS LEANING ON THE JUNIOR COURT 
MEMBERS (CHEDA, MALABA, ZIYAMBI) TO PRODUCE THE RESULTS 
THAT MUGABE WANTS, I.E. LEGALIZATION OF LAND SEIZURES 
AND THE UPHOLDING OF REPRESSIVE LEGISLATION.  AT LEAST 
TWO OF THESE NEW MEMBERS WHO APPEARED TO HAVE SOLID AND 
INDEPENDENT LEGAL CREDENTIALS (CHEDA AND MALABA), FELL 
UNDER CHIDYAUSIKU'S SWAY ON THE DECEMBER LAND RULING. 
IF MUGABE WANTS REPLACEMENT JUSTICES (THE CONSTITUTION 
STIPULATES THAT THE SUPREME COURT MUST HAVE AT LEAST 
FIVE MEMBERS, BUT PROVIDES NO MAXIMUM LIMIT), HE WILL 
HAVE NO TROUBLE INSTALLING REPLACEMENTS HE VIEWS AS 
SYMPATHETIC TO ZANU-PF'S CAUSES, WITH CHIDYAUSIKU AT THE 
HELM OF THE JUDICIAL SERVICE COMMISSION.  HOWEVER, AT 
THIS POINT, THE PRESIDENT DOES NOT NEED REPLACEMENTS. 
 
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¶5.  (C) COMMENT CONTINUED:  THE TRUE TEST OF THE "NEW" 
COURT'S LEANINGS WILL COME WHEN ORGANIZATIONS OPPOSED TO 
THE GOZ'S POLICIES INTRODUCE LEGAL CHALLENGES TO 
PROPOSED REPRESSIVE LEGISLATION.  JOURNALIST GROUPS AND 
THE MDC ARE ALREADY PREPARING CONSTITUTIONAL CASES 
AGAINST THE ACCESS TO INFORMATION BILL AND THE PUBLIC 
ORDER AND SECURITY BILL, RESPECTIVELY.  ALTHOUGH 
CHIDYAUSIKU DISMISSED THE GOVERNMENT'S INCITEMENT TO 
VIOLENCE CASE AGAINST MDC PRESIDENT MORGAN TSVANGIRAI, 
THE CHIEF JUSTICE GAVE THE GOVERNMENT AN "OUT" BY SAYING 
IT COULD CHANGE THE LAW TO LEGALLY PERMIT FUTURE ACTION 
AGAINST THE OPPOSITION LEADER.  EVEN IF THE SUPREME 
COURT JUSTICES BELIEVE THE REPRESSIVE LEGISLATION IS 
UNCONSTITUTIONAL, WHICH MOST LEGAL EXPERTS HERE AGREE 
THAT IT IS, CHIDYAUSIKU IS LIKELY TO PRESSURE HIS 
COLLEAGUES INTO ISSUING EQUIVOCAL RULINGS, OR POSTPONING 
THEM ALTOGETHER.  END COMMENT. 
 
SULLIVAN 
 
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