Jonathan Moyo, Chinamasa pile pressure on judges

Information Minister Jonathan Moyo and Justice Minister Patrick Chinamasa were piling pressure on judges to resign after the Supreme Court ruling that the land reform programme should be halted, Chief Justice Anthony Gubbay told United States embassy officials.

He said he had appealed to Vice-President Simon Muzenda for protection from war veterans who were calling on the judges to resign too but was instead told that it was the war veterans who felt threatened by the courts.

Gubbay said he and his fellow judges were "determined to remain firm and battle on".

 

Full cable:

 

Viewing cable 01HARARE538, ZIMBABWEAN SUPREME COURT CHIEF JUSTICE HOLDS FIRM

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Reference ID

Created

Released

Classification

Origin

01HARARE538

2001-01-26 12:12

2011-08-30 01:44

CONFIDENTIAL

Embassy Harare

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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------------------BBF18E 261215Z /38

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

 

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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

 

PAGE 01       HARARE 00538 03 OF 03 261215Z

ACTION AF-00

 

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L-00     VCE-00   AC-01   DCP-01 NSAE-00 OIC-02   OMB-01

OPIC-01 PA-00   PM-00   PRS-00   ACE-00   P-00     SP-00

IRM-00   SSO-00   STR-00   TRSE-00 USIE-00 PMB-00   DSCC-00

PRM-01   DRL-02   G-00     NFAT-00 SAS-00   SWCI-00   /010W

------------------BBF1AD 261215Z /38

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.

 

CONFIDENTIAL

 

PAGE 03       HARARE 00538 03 OF 03 261215Z

IRVING

 

CONFIDENTIAL

 

>

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