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Cablegate: Court Cases Update -- Zimbabwe's Stressed Judiciary

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

UNCLAS SECTION 01 OF 03 HARARE 001943

SIPDIS

SENSITIVE

AF/S FOR B. NEULING
NSC FOR SENIOR AFRICA DIRECTOR C. COURVILLE

E. O. 12958: N/A
TAGS: PGOV PHUM SOCI ZI
SUBJECT: COURT CASES UPDATE -- ZIMBABWE'S STRESSED JUDICIARY
STILL DELIVERING

REF: (A) Harare 1787 (B) Harare 1722 (C) Harare 1594 (D)
Harare 633 (E) 03 Harare 1935

1. (SBU) SUMMARY: Several noteworthy cases over the last few
months suggest the continuing vitality of elements within
Zimbabwe's beleaguered judiciary despite political and
professional pressures. Courts dismissed charges in the
Cain Nkala murder trial, for example, and ordered
Information Minister Jonathan Moyo to pay an independent
newspaper publisher damages for defamatory remarks. Other
politically sensitive cases, however, languish indefinitely,
essentially denying justice through prejudicial delays. And
despite a growing string of adverse decisions, the GOZ
continues its strategy of harassing its opponents through
litigation and ignoring many decisions against it.
Nonetheless, Zimbabwean courts retain a surprising level of
trust among the general public and could play a critical
role in national recovery should political turmoil here
recede. END SUMMARY.

Rulings Against the Government
------------------------------

2. (U) The Tsvangirai acquittal last month was not the only
politically sensitive case in which Zimbabwean courts ruled
against the GOZ recently --

-- Nkala Case Dismissed: High Court Judge Sandra Mungwira on
August 5 dismissed all charges against MDC MP Fletcher
Dulini Ncube and five other MDC activists charged in the
murder of ruling party activist Cain Nkala. The dismissal
concludes a trial that lasted nearly three years and
involved a "trial within a trial" (ref E) in which police
confessions were found to have been coerced. The exonerated
defendants indicated they may sue the GOZ over their
treatment in prison.

-- Defamation Damages Against Minister: In July, the High
Court ordered Information Minister Jonathan Moyo to pay
Z$2.5 million (US$450) damages for defamation to the
Associated Newspapers of Zimbabwe, the publisher of the
shuttered Daily News. The damage award, which related to
defamatory statements made by Moyo and Deketeke (alleged to
be the author of the weekly, vicious pseudonymous Nathaniel
Manheru columns) against staff members of the Daily News
(TDN), was just the latest in a string of TDN-related
decisions against the GOZ.

Cases Against the Government
----------------------------

3. (SBU) The courts are entertaining other politically
significant cases that put the GOZ and the ruling party
under pressure --

-- Wrongful Death Claim Against Minister: Minister Without
Portfolio in the President's Office (and former Minister of
Youth Development, Gender and Employment Creation) Elliot
Manyika faces a wrongful death claim of Z$135 million
(US$22,000) filed by the survivors of a murdered MDC
activist. Manyika allegedly shot two activists during the
Zengeza parliamentary by-election campaign (ref D).
Plaintiffs' attorney told us that Manyika would have been
prosecuted but for the personal intervention of Police
Commissioner Chihuri. The attorney told us that the
Minister invited Gunzvezve and the family of Chinozvina to
meet with him for an out of court settlement but no
agreement had been reached. A trial date has yet to be set.

-- Bennet Appeals: MDC MP Roy Bennet is pursuing two court
appeals of his parliamentary "conviction" for pushing down
the Minister of Justice. A constitutional appeal is before
the Supreme Court after being dismissed by the High Court
while an appeal revolving around principles of natural
justice is still before the High Court. Conclusive rulings
are not expected in either action soon and Bennet continues
to serve his sentence "with labor" under arduous conditions.
(Note: MDC MP and Shadow Minister for Justice David Coltart
told us that the party was seeking advocacy on Bennet's
behalf by the Inter-Parliamentary Union and sitting
counterparts in other legislatures, including the U.S.
Congress.)

-- Election Challenges Drag On: None of the 38 election
petitions originally filed in the High Court contesting
outcomes of the 2000 parliamentary elections has been
finally resolved to date. In a typical example, the Supreme
Court on November 5 reserved judgment in the election
petition of the Minister of State for Science and
Technology, Olivia Muchena, who had appealed a High Court
nullification of her election as MP for Mutoko South. Last
month, the Supreme Court reportedly dismissed the appeals of
ruling party MPs Elleck Mkandla and Jaison Machaya against
High Court rulings in favor of MDC challengers in January
2003. Nonetheless, the ruling party MPs are seeking
reinstatement of the appeals and the Speaker of the
Parliament has yet to act on MDC demands that the seats be
declared vacant. (Note: In response to the courts' failure
to resolve these cases, Zimbabwe Lawyers for Human Rights
filed an action with the African Commission for Human Rights
in Dakar, arguing that the inaction violated the African
Charter. The action, which was filed in August, awaits a
GOZ response.)

Resettled Farmers In Court: Attorney contacts told us that
they are increasingly involved in litigation on behalf of
resettled farmers in disputes with their neighbors. In
several cases, the courts have been granting "A1" farmers
(people resettled under small-holder schemes) favorable
orders allowing them to remain on their land in the face of
attempts by party stalwarts to evict them. Courts have
issued preliminary orders enjoining authorities from
preventing the return of settlers burned out of their homes
by authorities last month (ref C). The lawyers advise us
that some, though not all, of the settlers have returned.

Tsvangirai Acquittal to be Appealed?

SIPDIS
------------------------------------

4. (SBU) Meanwhile, the GOZ gives every indication that it
will continue its use of the courts to harass its critics
and the opposition. According to the October 31 edition of
the state-owned newspaper "the Herald", acting attorney
general Bharat Patel said that the GOZ intended to appeal
against the judgment in the Tsvangirai treason trial. Patel
was quoted as saying that the appeal would be filed to the
Supreme Court by mid November. Tsvangirai's attorneys,
however, have not yet received any information from the
state concerning its intentions to appeal. On November 3,
Tsvangirai appeared before a local magistrate, who set a

SIPDIS
hearing for January 13 on the second treason charge, which
concerned Tsvangirai's statements associated with mass
demonstrations. According to MDC sources, the January
hearing may involve the setting of bail and possible seizure
again of Tsvangirai's passport, although the case is
reportedly even weaker than the first charge.

Courts Under Pressure .
-----------------------

5. (SBU) Often viewed as subservient to the executive
branch, Zimbabwe's judiciary still contains elements capable
of rendering significant judgments against the government.
On its face, for example, Mungwira's judgment in the Nkala
murder trial not only strengthens the position of judges but
also that of victims of unlawful arrests. The TDN
defamation holding is just the latest in a series of
decisions supporting freedom of the press. Dismissal of the
ruling party election appeals likewise follows a line of
rulings against the GOZ in election contests. If given
effect, such judgments could have had far reaching
implications for the future conduct of the police, the
country's media, and GOZ election administration. Until
executive-controlled institutions like the police and Media
and Information Commission show willingness to implement
such decisions, however, such cases offer little more than
rhetorical fodder for regime critics - largely Pyrrhic
victories.

6. (SBU) Minister Manyika's situation is symptomatic of
deficiencies in both the court system and the election
environment. His interest in settlement is interesting;
according to Zimbabwean culture if a person causes the death
of an individual he/she must seek forgiveness from the
aggrieved family by paying a token sum as reparation
(kuripa). Failure to do so may result in a curse being
imposed upon that individual and his/her family (ngozi).
Perhaps more significantly, the offer may reflect his
personal and ruling party interest in resolving the matter
away from the glare of public spotlight, especially in view
of regional scrutiny invited by the GOZ for upcoming
elections. Essentially the ruling party's publicly
prominent national campaign manager several months ago,
Manyika's star appears to be waning of late.

7. (SBU) There remains an element of fear within the
judiciary. The example of former Judge President of the
Administrative Court Justice Michael Majuru is illustrative:
he publicly gave a detailed account from South Africa
earlier this year about his forced resignation and exile to
South Africa after constant harassment from ruling party
supporters and direct pressure from the Minister of Justice
in connection with the controversial Daily News case.

8. (SBU) Economic pressure on the largely underpaid bench is
an additional factor. Instruments setting out the terms
under which judges take property under land reform, for
example, reportedly have clauses giving the state
unconditional authority to reclaim the property. According
to a former president of the Law Society, all but five
judges on the Supreme Court and High Court have received
farms under land reform. Interestingly, the state media
earlier this month fingered Judge Garwe, who rendered the
surprise Tsvangirai acquittal, as having failed to sell the
grain from his farm to the Grain Marketing Board as required
- a precursor, perhaps, to his farm being reclaimed by the
state.

9. (SBU) Executive branch pressure and harassment only
compound the myriad challenges imposed on the judiciary by
the economy's collapse. Emigration takes a toll, as many
jurists find their skills in demand in neighboring countries
with similar legal systems. Declining real budgets are
sapping the judicial system's infrastructure. Once
impressive courtrooms and offices are dilapidated, libraries
are depleted and obsolete, and backlogs are growing as
resource constraints have delayed plans to computerize
indefinitely.

. But Still Commanding Respect
------------------------------

10. (SBU) Long delays are becoming the norm in politically
sensitive cases here. Nonetheless, as the court's ever-
growing workload attests, Zimbabweans of all political
stripes continue to view the courts as a resort of some
value. Rule of law remains important to Zimbabweans, a fact
not lost on a GOZ that goes to great lengths publicly to
legitimize its actions legalistically, even as it ignores
selected judicial pronouncements. Local newspapers often
read like a court docket, with innumerable reports on
criminal and civil cases involving prominent political and
business figures. Reports of conclusive disposition of any
cases, however, seem rare.

11. (SBU) Although it remains unclear whether or not the
judgment in Tsvangirai's treason trial was a political one,
Garwe's judgment has further bolstered the faith of many in
Zimbabwe's judiciary. Notwithstanding the likely political
and economic pressure he was under, he ruled even-handedly
throughout the trial, castigated the state's key witness Ari
Ben Menashe repeatedly, and delivered a judgment that most
local attorneys characterized as sound.

12. (SBU) In spite of deteriorating conditions and numerous
constraints, the judiciary retains a strong measure of
public respect. An August 2004 survey conducted in Zimbabwe
by the Mass Public Opinion Institute and Michigan State
University disclosed that 64 percent of respondents had "a
very great deal/a lot of trust" in the courts - the highest
level of trust among 12 national institutions/offices.
Indeed, the judicial system's residual talent, integrity,
and courage - and the trust it still engenders - will be
important in sustaining Zimbabweans' hope for the future and
could be an important foundation to support national
recovery should political conditions improve.

DELL

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