Judge opposed Ian Smith regime but……

Judge Nicholas McNally who had opposed the Ian Smith regime found himself on the wrong side again when President Robert Mugabe’s government wanted him out arguing that he was one of the colonial holdovers.

According to the United States embassy McNally resented the pressure but he had to ensure his personal safety, that of his family and preserve his own financial security.

Full cable:

Viewing cable 01HARARE694, ANOTHER SUPREME COURT JUSTICE IS SHOWN THE DOOR

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

091144Z Feb 01

CONFIDENTIAL     PTQ0023

PAGE 01       HARARE 00694 01 OF 02 091143Z

ACTION AF-00

INFO LOG-00   NP-00   AID-00   AMAD-00 ACQ-00   CIAE-00 INL-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   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 R-00     PMB-00   DSCC-00

PRM-01   DRL-02   G-00     NFAT-00 SAS-00   SWCI-00   /009W

——————C364B0 091143Z /38

FM AMEMBASSY HARARE

TO SECSTATE WASHDC IMMEDIATE 8200

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 000694

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER

LONDON FOR GURNEY

PARIS FOR WILLIAMS

NAIROBI FOR PFLAUMER

PASS USAID FOR AFR/SA C. PALMA

PASS USTR FOR ROSA WHITAKER

E.O. 12958: DECL. 02/09/11

CONFIDENTIAL

PAGE 02       HARARE 00694 01 OF 02 091143Z

TAGS: PGOV PHUM PINS PINR ZI

SUBJECT: ANOTHER SUPREME COURT JUSTICE IS SHOWN THE DOOR

REF: HARARE 644

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

(B) AND (D).

SUMMARY

——-

¶1. (C) AFTER FORCING SUPREME COURT CHIEF JUSTICE ANTHONY

GUBBAY INTO EARLY RETIREMENT ON FEBRUARY 2 (REFTEL), THE

GOVERNMENT HAS NOW TURNED ITS ATTENTION TO GUBBAY’S FOUR

COLLEAGUES ON ZIMBABWE’S HIGHEST BENCH. ON FEBRUARY 9,

JUSTICE MINISTER PATRICK CHINAMASA ASKED FOR THE

RESIGNATION OF JUSTICE NICHOLAS MCNALLY AND WAS EXPECTED TO

MAKE THE SAME DEMAND LATER IN THE DAY OF JUSTICE AHMED

IBRAHIM. MCNALLY, WHO REACHES THE MANDATORY RETIREMENT AGE

OF 70 IN DECEMBER OF THIS YEAR, IS INCLINED TO SUBMIT HIS

RESIGNATION, CONVINCED THAT THE ONLY ALTERNATIVE IS FURTHER

INTIMIDATION AND LIKELY PHYSICAL HARM BY THE GOVERNMENT’S

SO-CALLED WAR VETERANS AND SUSPENSION OF HIS PENSION. END

SUMMARY.

GO, OR ELSE

———–

¶2. (C) ZIMBABWEAN SUPREME COURT JUSTICE NICHOLAS MCNALLY

(PROTECT) TOLD POLITICAL SECTION CHIEF ON FEBRUARY 9 THAT

JUSTICE MINISTER PATRICK CHINAMASA HAD ASKED HIM EARLIER

CONFIDENTIAL

PAGE 03       HARARE 00694 01 OF 02 091143Z

THAT DAY TO SUBMIT HIS RESIGNATION, EVEN THOUGH HE DOES NOT

REACH THE MANDATORY RETIREMENT AGE OF 70 UNTIL DECEMBER OF

THIS YEAR. ASKED WHAT WOULD HAPPEN IF HE REFUSED,

CHINAMASA SAID THE PRESIDENT DID NOT WANT MCNALLY TO GET

HURT, BUT, IF HE DECLINED TO COMPLY WITH THE GOVERNMENT’S

REQUEST, “THERE WILL BE AN UGLY CONFRONTATION.”

¶3. (C) THE JUSTICE TOLD POLCHIEF HE IS INCLINED TO GIVE IN

TO CHINAMASA’S ULTIMATUM. ALTHOUGH MCNALLY WOULD FEEL

TERRIBLE ABOUT “DESERTING” ZIMBABWEANS WHO RELY ON THE

JUDICIARY TO BE AN EFFECTIVE CHECK ON THE EXECUTIVE,

PARTICULARLY DURING THESE DIFFICULT TIMES, HE FELT AS

THOUGH HE HAS LITTLE CHOICE. THE JUSTICE IS CONVINCED

THAT, IF HE WERE TO CHOOSE TO STAY ON, THE SO-CALLED WAR

VETERANS WOULD BE DIRECTED TO INTENSIFY THEIR INTIMIDATION

OF HIM AND LIKELY WOULD SEEK TO DO PHYSICAL HARM TO HIM OR

HIS FAMILY. IN ADDITION, MCNALLY SAID HE WILL BE DEPENDENT

UPON HIS PENSION ONCE HE RETIRES, AND FEARS THAT THE

GOVERNMENT MIGHT SIMPLY SUSPEND PAYMENT OF IT. BESIDES,

THE GOVERNMENT HAS MADE CLEAR ITS DETERMINATION TO

CONTINUE TO IGNORE JUDICIAL RULINGS AND HAS NOW STOPPED

BOTHERING EVEN TO APPEAR IN COURT TO ANSWER CLAIMS FROM

FARMERS AND MEMBERS OF THE OPPOSITION. A FURTHER

CONSIDERATION IS THAT MCNALLY COULD NOT COUNTENANCE WORKING

FOR GODFREY CHIDYAUSIKU, THE LIKELY CANDIDATE TO REPLACE

ANTHONY GUBBAY AS CHIEF JUSTICE. THE NORMALLY RESERVED

MCNALLY CALLED THE PRO-ZANU-PF CHIDYAUSIKU A “SLIMY

BASTARD.” CHINAMASA REPORTEDLY IS EYEING THE CHIEF JUSTICE

POSITION HIMSELF, BUT MCNALLY THOUGHT CHIDYAUSIKU WAS THE

ODDS-ON FAVORITE.

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PAGE 04       HARARE 00694 01 OF 02 091143Z

¶4. (C) MCNALLY SAID CHINAMASA WOULD BE MEETING LATER IN

THE DAY WITH HIS COLLEAGUE, JUSTICE AHMED IBRAHIM, AND

WOULD DEMAND HIS IMMEDIATE RESIGNATION AS WELL. IBRAHIM IS

ONLY 63, BUT MCNALLY THOUGHT HE WOULD BE INCLINED TO COMPLY

WITH CHINAMASA’S DEMAND. WHAT REMAINS UNCLEAR, MCNALLY

OFFERED, IS WHETHER THE GOVERNMENT WOULD DEMAND THE

DEPARTURE OF THE COURT’S TWO BLACK JUSTICES, AND WHETHER OR

NOT THEY WOULD AGREE TO GO IF PRESSED.

COMMENT

——-

¶5. (C) AFTER FORCING CHIEF JUSTICE GUBBAY INTO EARLY

RETIREMENT ON FEBRUARY 2 (REFTEL), THE GOVERNMENT IS NOW

INTIMIDATING HIS COLLEAGUES INTO STEPPING DOWN AS WELL.

THE DEPARTURE OF ALL THREE JUDGES (TWO WHITE AND ONE OF

ASIAN HERITAGE) WOULD KNOCK OUT 60 PERCENT OF THE SUPREME

COURT IN A SEVEN-DAY PERIOD. MCNALLY, WHO OPPOSED THE IAN

SMITH REGIME AND HAS SERVED ON THE SUPREME COURT SINCE

1984, CLEARLY RESENTED THE GOVERNMENT’S PRESSURE, BUT

ENSURING HIS PERSONAL SAFETY AND THAT OF HIS FAMILY, ALONG

WITH THE NEED TO PRESERVE HIS FINANCIAL SECURITY IN

RETIREMENT, PROVIDE COMPELLING REASONS TO GO. THESE

DEPARTURES, HOWEVER, DRIVE THE STAKE FURTHER INTO THE HEART

OF THE RULE OF LAW HERE, AND REMOVES THE ONLY GENUINE CHECK

CONFIDENTIAL

CONFIDENTIAL     PTQ0024

PAGE 01       HARARE 00694 02 OF 02 091143Z

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   NSAE-00 OIC-02   OMB-01   OPIC-01 PA-00

PM-00   PRS-00   ACE-00   P-00     SP-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   /009W

——————C364B2 091143Z /38

O 091144Z FEB 01

FM AMEMBASSY HARARE

TO SECSTATE WASHDC IMMEDIATE 8201

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 000694

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER

LONDON FOR GURNEY

PARIS FOR WILLIAMS

NAIROBI FOR PFLAUMER

PASS USAID FOR AFR/SA C. PALMA

PASS USTR FOR ROSA WHITAKER

E.O. 12958: DECL. 02/09/11

CONFIDENTIAL

PAGE 02       HARARE 00694 02 OF 02 091143Z

TAGS: PGOV PHUM PINS PINR ZI

SUBJECT: ANOTHER SUPREME COURT JUSTICE IS SHOWN THE DOOR

ON A PRESIDENT DETERMINED TO RETAIN POWER AT ALL AND ANY

COSTS. END COMMENT.

IRVING

CONFIDENTIAL

>

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