Information Minister Jonathan Moyo piled pressure on Chief Justice Anthony Gubbay to resign or recuse himself from cases involving the Commercial Famers Union because he had stated way back in 1991 his stance on the land issue.
The Supreme Court was hearing a case in which the CFU was challenging the constitutionality of the government’s fast track land reform programme.
Moyo said if Gubbay did not resign he should remove himself from the CFU case and others on which he had already commented publicly, citing Gubbay’s 1991 comments about the unfeasibility of land reform in Zimbabwe.
Full cable:
Viewing cable 00HARARE6388, ZIMBABWE RULING PARTY DEMAGOGUES ARE TURNING UP
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This record is a partial extract of the original cable. The full text of the original cable is not available.
150527Z Nov 00
CONFIDENTIAL PTQ9196
PAGE 01 HARARE 06388 01 OF 03 150527Z
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INR-00 IO-00 L-00 VCE-00 AC-01 NSAE-00 OIC-02
OMB-01 OPIC-01 PA-00 PM-00 PRS-00 ACE-00 P-00
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——————9F0592 150527Z /38
FM AMEMBASSY HARARE
TO SECSTATE WASHDC PRIORITY 7617
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 03 HARARE 006388
SIPDIS
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH
LONDON FOR CHARLES GURNEY
PARIS FOR BISA WILLIAMS
PASS USTR FOR ROSA WHITAKER
E.O. 12958: DECL: 11/14/10
SUBJECT: ZIMBABWE RULING PARTY DEMAGOGUES ARE TURNING UP
CONFIDENTIAL
PAGE 02 HARARE 06388 01 OF 03 150527Z
THE HEAT ON JUDICIARY
REFTEL: HARARE 6330
CLASSIFIED BY AMBASSADOR TOM MCDONALD FOR REASONS: 1.5
(B) AND (D).
¶1. (C) SUMMARY: ZANU-PF DEMAGOGUES ARE TURNING UP THE
HEAT ON ZIMBABWE’S JUDICIARY IN AN ATTEMPT TO UNDERMINE
THE ONLY GOVERNMENT INSTITUTION THAT STILL RETAINS SOME
INDEPENDENCE FROM THE RULING PARTY. SO FAR, THE THREATS
ARE RHETORICAL IN NATURE, BUT THEY ARE BECOMING MORE
FREQUENT AND DIRECT. ZIMBABWE’S SUPREME COURT IS
CURRENTLY HEARING A CASE BROUGHT BY THE COMMERCIAL
FARMERS ON THE CONSTITUTIONALITY OF THE GOVERNMENT’S
FARM SEIZURES, WHICH HAS LED TO CALLS BY ZANU-PF FOR
CHIEF JUSTICE GUBBAY’S RESIGNATION. OTHER JUDGES ARE
INCREASINGLY FEARFUL THAT GOVERNMENT HARASSMENT OR
THREATS AGAINST THEIR PERSON ARE JUST AROUND THE CORNER.
UP UNTIL NOW, THE GOVERNMENT HAS IGNORED COURT RULINGS
THAT COULD DISRUPT THE RULING PARTY’S PLANS TO STAY IN
POWER, AND MAY SEE LITTLE REASON TO AGGRESSIVELY
INTIMIDATE JUDGES, AS IT HAS OTHER OPPONENTS. HOWEVER,
PRESIDENT MUGABE, INCREASINGLY DESPERATE TO CLING TO
POWER, IS MORE APT TO LASH OUT AT PERCEIVED ENEMIES, AND
ATTACKS ON THE JUDICIARY BEAR CLOSE WATCHING. END
SUMMARY.
¶2. (U) ON NOVEMBER 1, MINISTER OF STATE FOR INFORMATION
AND PUBLICITY JONATHAN MOYO CALLED FOR THE RESIGNATION
OF SUPREME COURT CHIEF JUSTICE ANTHONY GUBBAY. GUBBAY
CONFIDENTIAL
PAGE 03 HARARE 06388 01 OF 03 150527Z
IS HEARING THE COMMERCIAL FARMERS’ UNION’S (CFU) LEGAL
CHALLENGE TO THE CONSTITUTIONALITY OF THE GOVERNMENT’S
FAST-TRACK LAND RESETTLEMENT PROGRAM. MOYO STATED THAT
IF GUBBAY DOES NOT RESIGN, HE SHOULD REMOVE HIMSELF FROM
THE CFU CASE AND OTHERS ON WHICH HE HAS ALREADY
COMMENTED PUBLICLY, CITING GUBBAY’S 1991 COMMENTS ABOUT
THE UNFEASIBILITY OF LAND REFORM IN ZIMBABWE. TO ADD
PRESSURE ON GUBBAY, TWO ZANU-PF PARLIAMENTARIANS, PHILIP
CHIYANGWA AND RICHARD MAJANGE, ARE DRAWING UP A MOTION,
WITH THE HELP OF A 12-MEMBER ZANU-PF LEGAL COMMITTEE,
THAT CALLS FOR PRESIDENT MUGABE TO SET UP A TRIBUNAL TO
INVESTIGATE GUBBAY’S “ABUSE OF POWER.” THE DRAFT MOTION
DOES NOT LIST ANY SPECIFIC CHARGES, ACCORDING TO THE
NOVEMBER 2 “THE FINANCIAL GAZETTE.” THE MOTION WAS DUE
TO BE TABLED IN PARLIAMENT WHEN IT RECONVENES NOVEMBER
16 TO CONSIDER THE BUDGET, BUT A CHECK WITH PARLIAMENT
OFFICIALS REVEALED THAT THE MEASURE HAS YET TO BE LISTED
ON PARLIAMENT’S AGENDA.
¶3. (C) IN A CONVERSATION WITH DCM AND POLOFF ON
NOVEMBER 2, HIGH COURT JUSTICE YUNUS OMERJEE REPORTED
THAT HE IS INCREASINGLY FEARFUL THAT GOVERNMENT
HARASSMENT AND INTIMIDATION ARE JUST AROUND THE CORNER.
THE LATEST ROUND OF RHETORICAL ATTACKS AGAINST THE
JUDICIARY HAS REDUCED MORALE TO AN ALL-TIME LOW,
ACCORDING TO OMERJEE. JUDGES ARE AFRAID TO BE SEEN WITH
AMERICANS AND OTHER WESTERNERS OUT OF FEAR OF COMING
UNDER GREATER SCRUTINY BY THE SECURITY SERVICES. THEY
ARE TRYING TO KEEP A LOW PROFILE AT LEAST UNTIL THE
CURRENT COURT SESSION FINISHES AT THE END OF NOVEMBER.
OMERJEE STATED THAT HE DOES NOT KNOW OF ANY JUDGES WHO
CONFIDENTIAL
PAGE 04 HARARE 06388 01 OF 03 150527Z
HAVE RECEIVED THREATS OR WHO HAVE BEEN HARASSED, BUT HE
BELIEVES THAT IT MAY NOT BE LONG BEFORE IT STARTS.
¶4. (C) UNIVERSITY OF ZIMBABWE POLITICAL SCIENCE
PROFESSOR JOHN MAKUMBE CHARACTERIZED THE LATEST UPTURN
IN ATTACKS ON THE JUDICIARY AS MUGABE PLAYING THE “RACE
CARD.” MUGABE IS SO INFURIATED WITH WHITE ZIMBABWEANS,
HE IS GOING TO MAKE ALL THEIR LIVES MISERABLE, MAKUMBE
OPINED (MOST OF ZIMBABWE’S HIGH COURT AND SUPREME COURT
JUSTICES ARE WHITE). MAKUMBE BELIEVES THAT IF MUGABE
CANNOT FORCE JUDGES TO RESIGN OUTRIGHT, HE WILL
“PAUPERIZE” THEM ONCE THEY RETIRE. HE CITED THE CASE OF
A JUDGE WHO RETIRED A FEW YEARS AGO AND HAD MADE
CONTROVERSIAL JUDGEMENTS AGAINST THE GOVERNMENT. THE
GOVERNMENT VIRTUAL CUT OFF HIS PENSION AND STOPPED
PROVIDING THE PERKS HE WAS ENTITLED TO UNDER HIS
RETIREMENT CONTRACT. THE JUDGE WAS FORCED TO SELL HIS
HOME AND FURNISHINGS AT AUCTION, AND NOW LIVES IN
POVERTY, ACCORDING TO MAKUMBE. (COMMENT: MAKUMBE MAY
HAVE BEEN REFERRING TO FORMER CHIEF JUSTICE ENOCH
DUMBUTSHENA, ONE OF THE FOUNDERS OF THE NOW-DEFUNCT
FORUM PARTY. END COMMENT.) THREE JUDGES WILL BE COMING
UP FOR RETIREMENT IN THE NEXT FEW YEARS, MAKUMBE ADDED.
CONFIDENTIAL
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SP-00 STR-00 TRSE-00 USIE-00 PMB-00 DSCC-00 PRM-02
DRL-02 G-00 NFAT-00 SAS-00 SWCI-00 /010W
——————9F059E 150528Z /38
P 150527Z NOV 00
FM AMEMBASSY HARARE
TO SECSTATE WASHDC PRIORITY 7618
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 03 HARARE 006388
SIPDIS
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH
LONDON FOR CHARLES GURNEY
PARIS FOR BISA WILLIAMS
PASS USTR FOR ROSA WHITAKER
E.O. 12958: DECL: 11/14/10
SUBJECT: ZIMBABWE RULING PARTY DEMAGOGUES ARE TURNING UP
CONFIDENTIAL
PAGE 02 HARARE 06388 02 OF 03 150528Z
THE HEAT ON JUDICIARY
¶5. (C) POLOFF MET HIGH COURT JUSTICE FERGUS BLACKIE
NOVEMBER 9 TO GET HIS ASSESSMENT OF THREATS AGAINST THE
JUDICIARY. BLACKIE IS KNOWN RECENTLY FOR HIS DECISION
TO PROHIBIT ZANU-PF FROM SPENDING THE MDC’S SHARE OF
GOVERNMENT FUNDING FOR POLITICAL PARTIES UNTIL A RULING
IS MADE. (AT A NOVEMBER 14 HEARING, THE GOVERNMENT WAS
DUE TO PRESENT EVIDENCE THAT THE MDC DID NOT SUBMIT THE
PROPER PAPERWORK FOR GOVERNMENT FUNDING BY THE JUNE
DEADLINE.) BLACKIE SAID THAT NEITHER HE NOR ANY OF HIS
COLLEAGUES HAVE RECEIVED THREATS AGAINST THEIR PERSON–
YET. HE BELIEVES INSTEAD THAT THE CENTRAL INTELLIGENCE
ORGANIZATION (CIO) IS CONDUCTING “RESEARCH” TO DIG UP
DIRT ON THE JUSTICES TO DISCREDIT THEM OR BLACKMAIL THEM
INTO RESIGNING. IT WOULD BE EASIER THAN DISMISSING THEM
BECAUSE JUSTICES CAN BE DISMISSED ONLY AFTER A LONG,
CUMBERSOME PROCESS THAT REQUIRES THE ESTABLISHMENT OF A
TRIBUNAL, BLACKIE STATED.
¶6. (C) IT IS NO SECRET THAT GODFREY CHIDIYASIKU, THE
JUDGE PRESIDENT OF THE HIGH COURT, IS A ZANU-PF
LOYALIST, AND HIS ADMINISTRATION OF THE COURT HAS BEEN
BIASED, BLACKIE CONTINUED. (THE JUDGE PRESIDENT IS
CHARGED WITH ASSIGNING COURT CASES.) THERE ARE AT LEAST
TWO OTHER HIGH COURT JUSTICES, OUT OF 15, WHO HAVE PRO-
GOVERNMENT LEANINGS, BLACKIE BELIEVES. HIGH AND SUPREME
COURT JUSTICES ARE APPOINTED BY THE PRESIDENT TO TERMS
THAT EXTEND UNTIL RETIREMENT; JUSTICES MUST RETIRE AT
THE AGE OF 65 UNLESS THEY GET A MEDICAL PERMIT STATING
THAT THEY ARE MENTALLY AND PHYSICALLY FIT, IN WHICH CASE
CONFIDENTIAL
PAGE 03 HARARE 06388 02 OF 03 150528Z
THEY CAN SERVE UNTIL 70. HE WENT ON TO SAY THAT HE SEES
THE JUDICIARY AS THE ONLY THING STANDING BETWEEN
ZIMBABWEANS AND A “SLIDE INTO DICTATORSHIP.”
¶7. (C) SUPREME COURT CHIEF JUSTICE ANTHONY GUBBAY
(STRICTLY PROTECT) TOLD POLOFF NOVEMBER 10 THAT HE
BELIEVES HE IS IN A MORE VULNERABLE POSITION THAN THE
OTHER JUSTICES. THE PRESIDENT CAN SUSPEND THE CHIEF
JUSTICE ON ANY GROUNDS, BUT HE CANNOT SUSPEND THE OTHER
SUPREME AND HIGH COURT JUSTICES–ONLY THE CHIEF JUSTICE
CAN, AND ONLY FOR MALFEASANCE OR INCOMPETENCE, ACCORDING
TO GUBBAY. THIS LEAVES GUBBAY PARTICULARLY VULNERABLE
TO THE WHIMS OF THE PRESIDENT, BUT HE DOES NOT THINK
THAT MUGABE WILL ACT AGAINST HIM IN THE NEAR FUTURE,
DESPITE THE GOVERNMENT RHETORIC CALLING FOR HIS
RESIGNATION. (GUBBAY IS DUE TO RETIRE IN 2002.)
VISIBLY PERTURBED, THE CHIEF JUSTICE CHARACTERIZED
JONATHAN MOYO’S STATEMENT ABOUT HIS 1991 REMARKS ON LAND
REFORM AS “COMPLETELY FALSE” AND SAID THAT THE JUSTICE’S
FULL STATEMENT PRINTED IN “THE HERALD” UNWITTINGLY
PROVED THAT MOYO WAS LYING ABOUT THE CHIEF JUSTICE’S
RECORD.
¶8. (C) GUBBAY WENT ON TO SAY HE WAS RELIEVED THAT
VOTERS REJECTED THE GOVERNMENT’S PROPOSED CONSTITUTION
IN THE FEBRUARY REFERENDUM BECAUSE IT WOULD HAVE REMOVED
THE SUPREME COURT’S AUTHORITY TO HEAR CONSTITUTIONAL
CASES. IT WOULD HAVE ESTABLISHED A SPECIAL
CONSTITUTIONAL COURT THAT MUGABE WOULD HAVE BEEN FREE TO
PACK WITH HIS SUPPORTERS. THE DRAFT CONSTITUTION WOULD
ALSO HAVE INCREASED THE SUPREME COURT’S NUMBERS FROM
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PAGE 04 HARARE 06388 02 OF 03 150528Z
FIVE TO 11 AND GIVEN MUGABE THE ABILITY TO PACK THAT
COURT AS WELL. WHEN ASKED ABOUT THE GOVERNMENT IGNORING
THE SUPREME COURT’S ORDERS, GUBBAY EMPHASIZED THAT THE
GOZ HAS ONLY RECENTLY IGNORED RULINGS PERTAINING TO
LAND, AND HAS GENERALLY FOLLOWED THE COURT’S ORDERS.
¶9. (C) THE GOVERNMENT’S RESPONSE TO THE SUPREME COURT’S
NOVEMBER 10 RULING (REFTEL) THAT THE FARM OCCUPATIONS
ARE ILLEGAL AND MUST END HAS BEEN SURPRISINGLY
LACKLUSTER. SOME MINISTERS, SUCH AS LANDS, AGRICULTURE
AND RESETTLEMENT MINISTER JOSEPH MADE WENT AS FAR TO
SUGGEST THE GOVERNMENT WOULD COMPLY WITH THE SUPREME
COURT’S ORDER. INFORMATION MINISTER JONATHAN MOYO, WHO
HAS MADE A HABIT OF ATTACKING THE JUDICIARY, PASSED UP
THE OPPORTUNITY THIS TIME AND INSTEAD PORTRAYED THE
RULING AS A REAFFIRMATION OF WHAT THE GOVERNMENT HAS
BEEN TRYING TO ACCOMPLISH ALL ALONG ON LAND REFORM. THE
SUPREME COURT IS NOT OUT OF THE WOODS, YET, HOWEVER, AS
THE RECENT RULING WAS ONLY A RESPONSE TO AN URGENT
APPLICATION BY THE COMMERCIAL FARMERS’ UNION (CFU) ON
THE LEGALITY OF THE FARM OCCUPATIONS. THE CHIEF JUSTICE
TOLD POLOFF THAT THE CFU’S CHALLENGE ON THE
CONSTITUTIONALITY OF THE GOVERNMENT’S WHOLE RESETTLEMENT
SCHEME IS STILL BEFORE THE COURT. GUBBAY SAID THAT THE
CONFIDENTIAL
CONFIDENTIAL PTQ9198
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ACTION AF-00
INFO LOG-00 NP-00 AID-00 AMAD-00 CIAE-00 INL-00 DODE-00
SRPP-00 DS-00 EB-00 EUR-00 VC-00 H-01 TEDE-00
INR-00 IO-00 L-00 VCE-00 AC-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-02
DRL-02 G-00 NFAT-00 SAS-00 SWCI-00 /010W
——————9F05A3 150528Z /38
P 150527Z NOV 00
FM AMEMBASSY HARARE
TO SECSTATE WASHDC PRIORITY 7619
INFO NSC WASHDC PRIORITY
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
AMEMBASSY NAIROBI
C O N F I D E N T I A L SECTION 03 OF 03 HARARE 006388
SIPDIS
NSC FOR SENIOR AFRICA DIRECTOR GAYLE SMITH
LONDON FOR CHARLES GURNEY
PARIS FOR BISA WILLIAMS
PASS USTR FOR ROSA WHITAKER
E.O. 12958: DECL: 11/14/10
SUBJECT: ZIMBABWE RULING PARTY DEMAGOGUES ARE TURNING UP
CONFIDENTIAL
PAGE 02 HARARE 06388 03 OF 03 150528Z
THE HEAT ON JUDICIARY
CASE WILL LIKELY TAKE MONTHS TO RESOLVE, AND A RULING
WON’T BE FORTHCOMING UNTIL JANUARY AT THE EARLIEST.
¶10. (C) COMMENT: ALTHOUGH WE ARE ENCOURAGED THAT THE
GOVERNMENT APPEARS TO BE WITHHOLDING JUDGMENT FOR THE
TIME-BEING ON THE COURT’S RULING, THE JUDICIARY OPERATES
IN A MORE HOSTILE ENVIRONMENT NOW THAN IT DID TWO MONTHS
AGO. MANY JUSTICES ARE RELUCTANT TO BE SEEN IN PUBLIC
WITH AMERICANS AND OTHER WESTERNERS OUT OF FEAR OF
COMING UNDER GREATER SCRUTINY FROM THE SECURITY
SERVICES. ALL HAVE TOLD US THAT THE GOVERNMENT’S VERBAL
ATTACKS HAVE ADDED PRESSURE TO THEIR ALREADY STRESSFUL
JOBS, AND THEY FEAR THAT IT COULD STILL TURN INTO
OUTRIGHT INTIMIDATION. UP UNTIL NOW, THE GOVERNMENT HAS
IGNORED COURT RULINGS THAT WOULD DISRUPT ITS LAND REFORM
PROGRAM, AND IT MAY SEE LITTLE REASON TO AGGRESSIVELY
INTIMIDATE JUDGES, AS IT HAS OTHER OPPONENTS. HOWEVER,
PRESIDENT MUGABE, WHO SEES HIMSELF AS UNDER SIEGE FROM
ALL SIDES, IS MORE LIKELY TO TURN THE FORCES OF VIOLENCE
ON HIS PERCEIVED ENEMIES THAN EVER BEFORE. HE HAS YET
TO CROSS THAT LINE WITH THE JUDICIARY, BUT ANY ATTACKS
ON THE LAST BASTION OF OBJECTIVE GOVERNMENT IN ZIMBABWE
BEAR CLOSE WATCHING. WE WILL CONTINUE TO ACTIVELY MEET
WITH JUSTICES TO SHOW THEM SUPPORT AND CONCERN. END
COMMENT.
MCDONALD
CONFIDENTIAL
PAGE 03 HARARE 06388 03 OF 03 150528Z
CONFIDENTIAL
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