Judge President Godfrey Chidyausiku was sworn in as Zimbabwe’s acting Chief Justice on 13 March 2001 pending the retirement of Chief Justice Anthony Gubbay who had been forced to step down but had reached an amicable agreement with the government.
Gubbay did not attend the swearing in of Chidyausiku but his colleagues did.
Chidyausiku’s appointment was viewed as a fulfilment of the government’s wish to replace Gubbay with a judge perceived to be sympathetic to the Zimbabwe African National Union-Patriotic Front.
Full cable:
Viewing cable 01HARARE1018, ZIMBABWE: CHIDYAUSIKU SWORN IN AS ACTING CHIEF
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This record is a partial extract of the original cable. The full text of the original cable is not available.
141605Z Mar 01
CONFIDENTIAL PTQ9425
PAGE 01 HARARE 01018 01 OF 02 141608Z
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——————D19B55 141608Z /38
FM AMEMBASSY HARARE
TO SECSTATE WASHDC PRIORITY 8424
INFO NSC WASHDC PRIORITY
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
AMEMBASSY NAIROBI
C O N F I D E N T I A L SECTION 01 OF 02 HARARE 001018
SIPDIS
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER
LONDON FOR GURNEY
PARIS FOR WILLIAMS
NAIROBI FOR PFLAUMER
E.O. 12958: DECL. 03/14/11
SUBJECT: ZIMBABWE: CHIDYAUSIKU SWORN IN AS ACTING CHIEF
JUSTICE
CONFIDENTIAL
PAGE 02 HARARE 01018 01 OF 02 141608Z
REF: A) HARARE 918 B) HARARE 861 C) HARARE 644
CLASSIFIED BY CHARGE D’AFFAIRES EARL IRVING. REASONS: 1.5
(B) AND (D).
ACTING CHIEF JUSTICE SWORN IN
—————————–
¶1. (U) IN A LONG-EXPECTED MOVE, PRESIDENT MUGABE SWORE IN
HIGH COURT JUDGE PRESIDENT GODFREY CHIDYAUSIKU AS ACTING
CHIEF JUSTICE OF THE ZIMBABWEAN SUPREME COURT ON MARCH 13.
CHIDYAUSIKU WILL SERVE IN AN ACTING CAPACITY AT LEAST UNTIL
THE FORMAL RETIREMENT OF CHIEF JUSTICE ANTHONY GUBBAY,
CURRENTLY ON LEAVE UNTIL JUNE 30. THE CEREMONY AT STATE
HOUSE WAS ATTENDED BY GUBBAY’S FOUR COLLEAGUES ON THE BENCH
— BUT NOT GUBBAY HIMSELF — JUDGES FROM THE HIGH COURT,
JUSTICE MINISTER PATRICK CHINAMASA, OTHER CABINET
MINISTERS, AND ATTORNEY-GENERAL ANDREW CHIGOVERA. THE
EVENT RECEIVED PROMINENT COVERAGE IN THE GOVERNMENT-
CONTROLLED PRINT AND BROADCAST MEDIA.
COMMENT
——-
¶2. (C) THE GOVERNMENT’S INTENTION TO REPLACE GUBBAY WITH
THE PRO-ZANU-PF CHIDYAUSIKU HAS LONG BEEN AN OPEN SECRET,
AND THE CHIEF JUSTICE’S MARCH 2 AGREEMENT WITH THE GOZ
CONCERNING HIS EARLY RETIREMENT (REF A) MADE THIS POSSIBLE.
TWO PRIMARY QUESTIONS NOW REMAIN UNANSWERED: WILL
CHIDYAUSIKU, DURING HIS THREE-AND-A-HALF MONTHS AS ACTING
CHIEF JUSTICE, BE ABLE TO HELP DISLODGE HIS FOUR NEW
CONFIDENTIAL
PAGE 03 HARARE 01018 01 OF 02 141608Z
COLLEAGUES, AND WILL HE REPLACE GUBBAY PERMANENTLY WHEN THE
CHIEF JUSTICE FORMALLY RETIRES ON JUNE 30?
¶3. (C) THE FIRST QUESTION IS OPEN TO INTERPRETATION, AS
NEITHER THE CONSTITUTION NOR HISTORICAL PRECEDENT ADDRESSES
THE POWERS EXERCISED BY AN ACTING CHIEF JUSTICE WHILE THE
CHIEF JUSTICE IS COMPETENT AND REMAINS IN THE COUNTRY.
GUBBAY’S VIEW, AS ELABORATED ON MARCH 10 TO VISITING AF
A/PDAS MARK BELLAMY, WAS THAT ONLY GUBBAY — UNTIL HIS
RETIREMENT — HAS THE AUTHORITY TO RECOMMEND TO THE
PRESIDENT CONVOCATION OF A TRIBUNAL TO INVESTIGATE THE
EXPULSION OF JUDGES FROM THE BENCH. STERNFORD MOYO,
PRESIDENT OF THE LAW SOCIETY OF ZIMBABWE, AGREED WITH
GUBBAY, TELLING US ON MARCH 14 THAT, DURING THIS INTERIM
PERIOD, CHIDYAUSIKU’S RECOMMENDING ESTABLISHMENT OF A
TRIBUNAL ON HIS OWN — WITHOUT CONSULTING GUBBAY — WOULD
BE UNCONSTITUTIONAL. PRESIDENT MUGABE AND HIS ADVISORS
LIKELY WILL TAKE THE OPPOSITE VIEW, AS THEY ARE ANXIOUS TO
REPLACE THE COURT’S INDEPENDENT-MINDED JURISTS WITH JUDGES
MORE WILLING TO GIVE THE GOVERNMENT A PASS ON THE RULE OF
LAW.
¶4. (C) GUBBAY SURMISED TO BELLAMY THAT, SINCE THE TRIBUNAL
ROUTE IS SO FRAUGHT WITH CONSTITUTIONAL PITFALLS AND SINCE
CHIDYAUSIKU CANNOT ALONE CARRY ZANU-PF’S WATER, MUGABE
LIKELY WOULD TAKE THE EASIER — AND LEGAL — PATH OF SIMPLY
PACKING THE COURT WITH ADDITIONAL, POLITICALLY SYMPATHETIC
JUDGES. WE HAVE HEARD THAT JUSTICE MINISTER PATRICK
CHINAMASA HAS QUIETLY APPROACHED SEVERAL BLACK LAWYERS
ABOUT ACCEPTING JUDICIAL APPOINTMENTS, ALTHOUGH IT IS
UNCLEAR FOR WHICH COURT HE WAS RECRUITING. GUBBAY TOLD
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PAGE 04 HARARE 01018 01 OF 02 141608Z
BELLAMY HE FULLY EXPECTS CHIDYAUSIKU TO BE NAMED AS HIS
PERMANENT REPLACEMENT BEGINNING JULY 1. STERNFORD MOYO,
HOWEVER, SEPARATELY TOLD THE ACTING AF P/DAS THAT HE AND
OTHER MEMBERS OF THE JUDICIAL SERVICES COMMISSION —
CHARGED BY THE CONSTITUTION WITH ADVISING THE PRESIDENT ON
JUDICIAL NOMINEES — WERE WORKING TO TRY TO BLOCK
CHIDYAUSIKU’S ASCENSION TO THE APEX OF ZIMBABWE’S
JUDICIARY.
¶5. (C) WE SUSPECT THE GOZ IS EAGER TO INSTALL A PLIANT
SUPREME COURT AS SOON AS POSSIBLE, AS THE COURT MIGHT SOON
CONSIDER SEVERAL CONSTITUTIONAL CASES THAT COULD HAVE A
DIRECT IMPACT ON THE RULING PARTY’S POLITICAL PROGRAM. THE
HIGH COURT, FOR INSTANCE, IS CURRENTLY HEARING CHALLENGES
TO THE RESULTS IN 37 CONSTITUENCIES IN LAST JUNE’S
PARLIAMENTARY ELECTIONS. A DECISION BY THE HIGH COURT TO
INVALIDATE THE RESULTS IN ANY OF THOSE CONSTITUENCIES —
AND TO CALL FOR NEW ELECTIONS TO FILL THE SEATS — WOULD
WITHOUT DOUBT BE APPEALED TO THE SUPREME COURT. IN
ADDITION, THE MDC PLANS TO CHALLENGE THE CONSTITUTIONALITY
OF THE REPRESSIVE COLONIAL-ERA LAW AND ORDER MAINTENANCE
ACT (LOMA), WHICH THE GOZ HAS USED TO CRACK DOWN ON LEADING
OPPOSITION FIGURES, INCLUDING MDC PRESIDENT MORGAN
TSVANGIRAI AND HIS VICE-PRESIDENT GIBSON SIBANDA. CHIEF
SIPDIS
JUSTICE GUBBAY TOLD ACTING AF P/DAS BELLAMY THAT THE COURT
CONFIDENTIAL
CONFIDENTIAL PTQ9427
PAGE 01 HARARE 01018 02 OF 02 141608Z
ACTION AF-00
INFO LOG-00 NP-00 AID-00 AMAD-00 ACQ-00 CIAE-00 DINT-00
DODE-00 DOTE-00 SRPP-00 DS-00 EB-00 EUR-00 FAAE-00
FBIE-00 VC-00 H-01 TEDE-00 INR-00 IO-00 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 STR-00
TRSE-00 USIE-00 PMB-00 DSCC-00 PRM-01 DRL-02 G-00
NFAT-00 SAS-00 SWCI-00 /010W
——————D19B5B 141608Z /38
P 141605Z MAR 01
FM AMEMBASSY HARARE
TO SECSTATE WASHDC PRIORITY 8425
INFO NSC WASHDC PRIORITY
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
AMEMBASSY NAIROBI
C O N F I D E N T I A L SECTION 02 OF 02 HARARE 001018
SIPDIS
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER
LONDON FOR GURNEY
PARIS FOR WILLIAMS
NAIROBI FOR PFLAUMER
E.O. 12958: DECL. 03/14/11
SUBJECT: ZIMBABWE: CHIDYAUSIKU SWORN IN AS ACTING CHIEF
JUSTICE
CONFIDENTIAL
PAGE 02 HARARE 01018 02 OF 02 141608Z
WAS UNLIKELY TO ISSUE ANY MORE RULINGS ON THE GOVERNMENT’S
FAST TRACK RESETTLEMENT PROGRAM, AS HE AND HIS COLLEAGUES
HAD MADE THEIR POSITION ON THE ILLEGALITY OF THAT EXERCISE
ABSOLUTELY CLEAR.
¶6. (U) BIOGRAPHIC INFORMATION ON CHIDYAUSIKU WILL FOLLOW
SEPTEL.
IRVING
CONFIDENTIAL
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