Judge put Smith’s law on test

Judge Moses Chinhengo, who was presiding over Movement for Democratic Change leader Morgan Tsvangirai’s case, decided to refer the legality of the Law and Order Maintenance Act to the Supreme Court rather than focus on the charges that Tsvangirai was facing.

Tsvangirai was charged with terrorism, sabotage and inciting violence after telling people at a rally that if President Robert Mugabe did not go peacefully he would be removed violently.

He was charged under the Law and Order Maintenance Act which was enacted by the Ian Smith regime to suppress African nationalism.

Tsvangirai’s lawyer Chris Andersen requested that the case be referred to the Supreme Court for determination of whether the Law and Order Maintenance Act was consistent with the country’s constitution.

Chinhengo agreed to refer the case to the Supreme Court because the case was of significant public interest and the highest court in the land had to rule once and for all on the constitutionality of the Law and Order Maintenance Act.

Full cable:

Viewing cable 01HARARE1536, CRIMINAL CASE AGAINST MDC PRESIDENT TSVANGIRAI REFERRED

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

071601Z May 01

CONFIDENTIAL     PTO6314

PAGE 01       HARARE 01536 071552Z

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——————E84CAD 071553Z /38

FM AMEMBASSY HARARE

TO SECSTATE WASHDC IMMEDIATE 8811

INFO NSC WASHDC IMMEDIATE

SOUTHERN AFRICAN DEVELOPMENT COMMUNITY

AMEMBASSY NAIROBI

C O N F I D E N T I A L HARARE 001536

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER LONDON FOR GURNEY

PARIS FOR BISA WILLIAMS

NAIROBI FOR PFLAUMER

E.O. 12958: DECL. 05/07/11

TAGS: PGOV KDEM PINS ZI

SUBJECT: CRIMINAL CASE AGAINST MDC PRESIDENT TSVANGIRAI REFERRED

TO SUPREME COURT

REF: HARARE 767

CONFIDENTIAL

PAGE 02       HARARE 01536 071552Z

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

(B) AND (D).

¶1. (U) MOVEMENT FOR DEMOCRATIC CHANGE (MDC) PRESIDENT MORGAN

TSVANGIRAI APPEARED BEFORE HIGH COURT JUDGE MOSES CHINHENGO ON

SIPDIS

MAY 7 TO FACE CHARGES — UNDER THE COLONIAL-ERA LAW AND ORDER

MAINTENANCE ACT — OF TERRORISM AND SABOTAGE AND OF INCITING

PUBLIC VIOLENCE. AS REPORTED REFTEL, THE CHARGES REFER TO

TSVANGIRAI’S STATEMENT AT A POLITICAL RALLY LAST SEPTEMBER 30

SIPDIS

THAT PRESIDENT MUGABE WOULD BE REMOVED VIOLENTLY IF HE DID NOT

CHOOSE TO GO PEACEFULLY. THE STANDING ROOM ONLY CROWD INCLUDED

SENIOR MDC OFFICIALS, FOREIGN AND LOCAL JOURNALISTS, EMBASSY’S

POLITICAL SECTION CHIEF AND HIS FSN ASSISTANT, AND A RANGE OF

OTHER INTERESTED OBSERVERS. DURING MOST OF THE HOUR-LONG

HEARING, A GROUP OF APPROXIMATELY 100 MOSTLY YOUNG MEN STOOD ON

THE STREET OUTSIDE CHANTING PRO-MDC SLOGANS, UNDER THE WATCHFUL

EYE OF A LARGE CONTINGENT OF RIOT POLICE.

¶2. (U) THE HEARING DID NOT DEAL WITH THE SUBSTANCE OF THE

CHARGES. RATHER, JUDGE CHINHENGO FOCUSED EXCLUSIVELY ON THE

REQUEST BY TSVANGIRAI’S LEAD ATTORNEY, CHRIS ANDERSEN, THAT THE

CASE BE REFERRED TO THE SUPREME COURT FOR A DETERMINATION OF

WHETHER THE LAW AND ORDER MAINTENANCE ACT (LOMA) IS CONSISTENT

WITH ZIMBABWE’S CONSTITUTION. ANDERSEN CONTENDED THAT THE LOMA

ARTICLES UNDER WHICH TSVANGIRAI IS CHARGED — 51 AND 58 —

VIOLATE THE CONSTITUTION BY IGNORING THE GUARANTEE OF FREEDOM OF

EXPRESSION, BY PLACING THE ONUS ON THE DEFENDANT TO PROVE HIS

INNOCENCE, AND BY DISREGARDING THE CONSTITUTIONAL PROTECTION

AGAINST EXCESSIVE PUNISHMENT, AS THE MAXIMUM PENALTY FOR

CONVICTION IN THIS CASE IS LIFE IMPRISONMENT. PROSECUTOR

CONFIDENTIAL

PAGE 03       HARARE 01536 071552Z

NATHANIEL SIBANDA CONTENDED THAT THE CASE SHOULD PROCEED TO TRIAL

IMMEDIATELY, GIVEN THE VERY SERIOUS CHARGES AND THE NEED FOR

GOVERNMENT TO MAKE CLEAR THAT, IN HIS WORDS, CALLING FOR THE

VIOLENT OVERTHROW OF A LAWFULLY-ELECTED LEADER IS NOT PERMISSIBLE

IN A DEMOCRATIC SOCIETY.

¶3. (U) AFTER DELIBERATING FOR THREE HOURS, JUDGE CHINHENGO

ANNOUNCED HIS INTENTION TO REFER THE CASE TO THE SUPREME COURT,

WHICH SHOULD, HE SAID, WEIGH IN BECAUSE THE CASE IS A MATTER OF

SIGNIFICANT PUBLIC INTEREST. IN ADDITION, CHINHENGO DECLARED,

THE NATION’S HIGHEST COURT SHOULD RULE ONCE AND FOR ALL ON THE

CONSTITUTIONALITY OF LOMA, A MUCH-CRITICIZED LAW — DRAFTED,

IRONICALLY, BY THE IAN SMITH REGIME — WHICH GAVE THE COLONIAL

GOVERNMENT SWEEPING POWERS IN ITS EFFORT TO SUPPRESS BLACK

NATIONALISTS.

COMMENT

——-

¶4. (C) CHINHENGO’S RULING MUST BE CONSIDERED A SMALL BUT

IMPORTANT VICTORY FOR TSVANGIRAI, AS THE JUDGE ESSENTIALLY AGREED

WITH HIS LEGAL TEAM’S CONTENTION THAT THE BASIS FOR THE CHARGES

AGAINST HIM MIGHT BE SUPERSEDED BY THE CONSTITUTION. THIS IS A

CRUCIAL TEST CASE, BOTH BECAUSE THE GOVERNMENT REGULARLY USES THE

LAW AND ORDER MAINTENANCE ACT TO INTIMIDATE THE POLITICAL

OPPOSITION AND BECAUSE MANY OBSERVERS INTERPRET THE CONSTITUTION

AS PROHIBITING CONVICTED FELONS FROM RUNNING FOR THE PRESIDENCY,

ALTHOUGH THE DOCUMENT IS VAGUE ON THIS POINT. IT IS IMPOSSIBLE

TO PREDICT WHAT THE SUPREME COURT WILL DO. IT COULD DECIDE TO

REFER THE CASE BACK TO THE HIGH COURT FOR TRIAL. ALTHOUGH THE

CHARGES IN THIS CASE ARE CLEARLY POLITICALLY MOTIVATED —

CONFIDENTIAL

PAGE 04       HARARE 01536 071552Z

TSVANGIRAI WAS NOT ATTEMPTING TO INCITE VIOLENCE OR ENGAGING IN

SIPDIS

TERRORISM OR SABOTAGE — THE COURT MIGHT BE RELUCTANT TO STRIKE

DOWN BOTH ARTICLES IN FULL, FOR FEAR THAT DOING SO MIGHT REMOVE

AN IMPORTANT LEGAL MECHANISM FOR USE AGAINST GENUINE PERPETRATORS

OF THESE CRIMES. ON THE OTHER HAND, AN EXAMINATION OF THE

INTENTIONS OF THE ORIGINAL DRAFTERS OF THE LOMA MIGHT MAKE THE

JUSTICES INCLINED TO OVERTURN THE RELEVANT ARTICLES. THE

NATION’S ATTENTION WILL NOW TURN TO THE SUPREME COURT, WHICH WE

ANTICIPATE WILL NOT HEAR THE CASE FOR AT LEAST SEVERAL MONTHS.

IRVING

CONFIDENTIAL

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