MDC challenges Mugabe presidential decree

There was keen interest from diplomats and other political watchers when the Movement for Democratic Change challenged a decree issued by President Robert Mugabe prohibiting the nullification of the election of any Member of Parliament.

The case was heard by the Supreme Court on 19 January 2001.

The MDC, which had lost narrowly to the Zimbabwe African National Union- Patriotic Front in the 2000 parliamentary elections was challenging the results in 38 constituencies and only needed to win in 20 to have a majority in Parliament.

United States embassy officials said stakes were extremely high in the case because three of Mugabe’s key ministers, propaganda chief Jonathan Moyo, Lands Minister Joseph Made and Local Government Minister Ignatius Chombo were seen hanging outside the Supreme Court.

According to a diplomatic cable released by Wikileaks, the three were “attempting to spin members of the press”.

 

Full cable:

 

Viewing cable 01HARARE392, SUPREME COURT HEARS MDC CHALLENGE OF MUGABE

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Reference ID

Created

Released

Classification

Origin

01HARARE392

2001-01-19 13:31

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.

 

191331Z Jan 01

 

 

CONFIDENTIAL     PTQ6955

 

PAGE 01       HARARE 00392 01 OF 02 191332Z

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------------------B89C8D 191332Z /38

FM AMEMBASSY HARARE

TO SECSTATE WASHDC IMMEDIATE 8042

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 000392

 

SIPDIS

 

NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH

LONDON FOR GURNEY

PARIS FOR WILLIAMS

NAIROBI FOR PFLAUMER

 

E.O. 12958: DECL. 01/19/11

TAGS: PGOV PHUM PINS ZI

SUBJECT: SUPREME COURT HEARS MDC CHALLENGE OF MUGABE

ELECTORAL DECREE

 

 

CONFIDENTIAL

 

PAGE 02       HARARE 00392 01 OF 02 191332Z

REF: A) 00 HARARE 6955

 

CLASSIFIED BY CHARGE D'AFFAIRES EARL IRVING. REASONS: 1.5

(B) AND (D).

 

SUMMARY

-------

 

1. (C) ON JANUARY 19, ZIMBABWE'S SUPREME COURT HEARD

ARGUMENTS IN THE CASE BROUGHT BY THE OPPOSITION MOVEMENT

FOR DEMOCRATIC CHANGE (MDC) AGAINST PRESIDENT MUGABE'S

RECENTLY-ISSUED DECREE PROHIBITING THE NULLIFICATION OF THE

ELECTION OF ANY MEMBER OF PARLIAMENT. THE MDC ATTORNEY

ARGUED PERSUASIVELY THAT THE DECREE SHOULD BE STRUCK DOWN

BECAUSE IT PURPORTS TO LEGITIMIZE ELECTIONS WHICH WERE NOT

FREE AND FAIR, IN VIOLATION OF THE ELECTORAL ACT, AND

BECAUSE IT SEEKS TO BLOCK JUDICIAL ACCESS TO AGGRIEVED

PARTIES WHOSE CIVIL RIGHTS MAY HAVE BEEN VIOLATED, IN

CONTRAVENTION OF THE CONSTITUTION. THE PRESIDING JUSTICES

GREETED WITH SKEPTICISM THE GOVERNMENT'S ARGUMENTS THAT THE

CASE BELONGED IN THE HIGH COURT, NOT THE SUPREME COURT, AND

THAT PARLIAMENT'S LEGAL COMMITTEE SHOULD BE GIVEN TIME TO

EXAMINE THE PRESIDENTIAL DECREE. AFTER THE PRESENTATION OF

ORAL ARGUMENTS, CHIEF JUSTICE GUBBAY MADE NO COMMITMENT

ABOUT WHEN THE COURT'S DECISION WILL BE HANDED DOWN, BUT,

GIVEN THE SIGNIFICANCE OF THE CASE, WE EXPECT A RULING

WITHIN A MATTER OF DAYS. END SUMMARY.

 

JANUARY 19 HEARING

------------------

 

CONFIDENTIAL

 

PAGE 03       HARARE 00392 01 OF 02 191332Z

2. (U) THE SUPREME COURT ON JANUARY 19 HEARD THE MDC'S

CHALLENGE OF PRESIDENT MUGABE'S RECENT DECREE AMENDING THE

ELECTORAL ACT. AS REPORTED IN REFTEL, MUGABE'S DECREE,

ISSUED ON DECEMBER 8, PROHIBITED THE NULLIFICATION OF THE

ELECTION OF ANY MEMBER OF PARLIAMENT, EFFECTIVELY DERAILING

THE MDC'S LEGAL CHALLENGES TO THE RESULTS IN 38

CONSTITUENCIES IN LAST JUNE'S PARLIAMENTARY ELECTIONS.

POLOFF WAS IN THE PACKED COURTROOM, WHICH ALSO INCLUDED

EDDISON ZVOBGO, A LONG-TIME ZANU-PF STALWART WHO WAS EXPELLED

FROM THE PARTY POLITBURO IN DECEMBER, AND JOURNALISTS FROM

THE NEW YORK TIMES AND BBC.

 

MDC'S ARGUMENTS

---------------

 

3. (U) THE MDC'S LEAD ATTORNEY, CHRIS ANDERSEN, URGED THAT

THE PRESIDENT'S DECREE BE STRUCK DOWN IMMEDIATELY, BECAUSE

IT VIOLATED BOTH THE ELECTORAL ACT AND ZIMBABWE'S

CONSTITUTION. THE ELECTORAL ACT, ANDERSEN EXPLAINED,

REQUIRES THAT ANY ELECTION MUST BE FREELY AND FAIRLY

CONDUCTED. HE POINTED OUT, HOWEVER, THAT THE ELECTION HAD

NOT BEEN CONSISTENT WITH THAT STANDARD, BUT INSTEAD HAD

BEEN FRAUGHT WITH SERIOUS IRREGULARITIES, INCLUDING MURDER,

BEATINGS, AND BALLOT-BOX RIGGING. ANDERSEN QUOTED FROM THE

FINAL REPORT OF THE COMMONWEALTH OBSERVER TEAM, WHICH

CHARACTERIZED THE ELECTION AS MARRED BY A SYSTEMATIC

GOVERNMENT-ORGANIZED CAMPAIGN OF VIOLENCE AND INTIMIDATION.

A FURTHER CONSIDERATION FOR THE COURT, ANDERSEN CONTINUED,

IS THAT THE PRESIDENT HAD A DIRECT PERSONAL INTEREST IN THE

RESULTS OF THE JUNE ELECTION. ALLOWING THE PRESIDENT'S

DECREE TO STAND, THEREFORE, WOULD BE TANTAMOUNT TO

CONFIDENTIAL

 

PAGE 04       HARARE 00392 01 OF 02 191332Z

PERMITTING ONE WITH A PERSONAL INTEREST IN A PARTICULAR

OUTCOME TO REFEREE A SOCCER MATCH.

 

4. (U) ZIMBABWE'S CONSTITUTION, ANDERSEN CONTINUED,

ENSHRINES IN THE JUDICIARY THE POWER TO ARBITRATE

COMPLAINTS FROM CITIZENS ALLEGING CIVIL RIGHTS VIOLATIONS.

SINCE THE ELECTORAL DECREE SEEKS TO BLOCK ACCESS TO THE

COURTS FOR THE VICTIMS OF THE VIOLENCE ASSOCIATED WITH THE

PARLIAMENTARY ELECTION, IT CLEARLY IS UNCONSTITUTIONAL,

ANDERSEN ALLEGED.   ANDERSEN MAINTAINED THAT, EVEN IF THE

JUSTICES WERE TO DISAGREE THAT THE DECREE WAS

UNCONSTITUTIONAL OR VIOLATED THE ELECTORAL ACT, HE HOPED

THEY WOULD AGREE THAT, IN ISSUING IT, THE PRESIDENT

SUBVERTED BOTH THE CONCEPT AND PRACTICE OF DEMOCRACY AS IT

IS UNDERSTOOD IN THE MODERN WORLD.

 

THE GOVERNMENT'S ARGUMENTS

--------------------------

 

5. (U) THE GOVERNMENT RETAINED AS ITS LEAD ATTORNEY A

SOUTH AFRICAN -- MR. CASSIM (AS HEARD) -- INSTEAD OF

FOLLOWING THE NORMAL PRACTICE OF USING ONE OF ITS OWN

LAWYERS IN THE ATTORNEY-GENERAL'S OFFICE, A DECISION WHICH

ELICITED SOME CRITICISM IN THE INDEPENDENT PRESS. CASSIM

MADE TWO ESSENTIAL ARGUMENTS. FIRST, THAT THE ELECTORAL

 

CONFIDENTIAL

 

CONFIDENTIAL     PTQ6956

 

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------------------B89C97 191332Z /38

O 191331Z JAN 01

FM AMEMBASSY HARARE

TO SECSTATE WASHDC IMMEDIATE 8043

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 000392

 

SIPDIS

 

NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH

LONDON FOR GURNEY

PARIS FOR WILLIAMS

NAIROBI FOR PFLAUMER

 

E.O. 12958: DECL. 01/19/11

TAGS: PGOV PHUM PINS ZI

SUBJECT: SUPREME COURT HEARS MDC CHALLENGE OF MUGABE

ELECTORAL DECREE

 

CONFIDENTIAL

 

PAGE 02       HARARE 00392 02 OF 02 191332Z

ACT GIVES THE PRESIDENT THE AUTHORITY TO ISSUE REGULATIONS

RELATING TO ELECTIONS. THE IMPROPER USE OF THAT AUTHORITY,

HE ARGUED, WAS A LEGITIMATE SUBJECT OF DEBATE, BUT ONE THAT

SHOULD BE HEARD IN THE HIGH COURT, NOT THE SUPREME COURT,

AS IT DID NOT INVOLVE CONSTITUTIONAL QUESTIONS. TWO OF THE

FIVE JUSTICES STRONGLY OBJECTED TO CASSIM'S CONTENTION THAT

THE SUPREME COURT DID NOT HAVE JURISDICTION IN THIS CASE.

CASSIM'S SECOND POINT WAS TO URGE THE COURT, IF IT DECIDED

THAT THE CASE DID POSE LEGITIMATE CONSTITUTIONAL ISSUES, TO

REFRAIN FROM HEARING IT UNTIL PARLIAMENT'S LEGAL COMMITTEE

HAD FINISHED EXAMINING THE LEGALITY OF MUGABE'S DECREE.

SEVERAL JUSTICES DISAGREED WITH THE ARGUMENT THAT THE COURT

SHOULD WAIT FOR PARLIAMENT TO CONSIDER THE ISSUE, STRESSING

THAT THESE WERE TWO INDEPENDENT PROCESSES THAT COULD HAPPEN

SIMULTANEOUSLY.

 

COMMENT

-------

 

6. (C) THE STAKES ARE EXTREMELY HIGH IN THIS CASE,

EVIDENCED BY THE PRESENCE OUTSIDE THE COURT OF THREE

GOVERNMENT MINISTERS -- JONATHAN MOYO OF INFORMATION AND

PUBLICITY, JOSEPH MADE OF LANDS, AGRICULTURE, AND

RESETTLEMENT, AND IGNATIUS CHOMBO OF LOCAL GOVERNMENT,

PUBLIC WORKS, AND NATIONAL HOUSING -- ATTEMPTING TO SPIN

MEMBERS OF THE PRESS. MANY OBSERVERS SAID THEY FELT SORRY

FOR CASSIM, AS HE HAD A VERY TALL, PERHAPS IMPOSSIBLE, TASK

IN DEFENDING THE GOVERNMENT'S POSITION. CHIEF JUSTICE

GUBBAY MADE NO COMMITMENT ABOUT WHEN A RULING MIGHT BE

HANDED DOWN, BUT WE EXPECT IT WILL BE IN A MATTER OF DAYS,

GIVEN THE IMPORTANCE OF THE CASE. JUDGING FROM THE STRONG

CONFIDENTIAL

 

PAGE 03       HARARE 00392 02 OF 02 191332Z

SKEPTICISM WITH WHICH THE JUSTICES GREETED CASSIM'S

ARGUMENTS (SEVERAL EVEN ROLLED THEIR EYES AS HE MADE HIS

POINTS), WE ANTICIPATE THE COURT WILL OVERTURN THE DECREE.

SUCH A RULING WOULD PERMIT THE MDC'S CHALLENGES TO THE

RESULTS IN 38 CONSTITUENCIES TO MOVE FORWARD IN THE HIGH

COURT, AND THE MDC WOULD HAVE TO WIN ONLY 20 OF THOSE SEATS

TO SECURE A MAJORITY IN PARLIAMENT. A SUPREME COURT RULING

IN FAVOR OF THE MDC, HOWEVER, WOULD BE ONLY HALF THE

BATTLE, AS THE JUDGE PRESIDENT OF THE HIGH COURT, GODFREY

CHIDAYAUSIKU, IS CLOSELY ALLIED WITH ZANU-PF AND WILL DO

ALL HE CAN TO DELAY ACTION ON THE ELECTORAL CHALLENGES.

 

IRVING

 

CONFIDENTIAL

 

>

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