MDC presidential election challenge hearing starts

The Movement for Democratic Change’s case in which it was seeking the invalidation of the 2002 presidential election results began on 3 November 2003 but the party was not happy with the presiding judge Ben Hlatshwayo.

The party felt that the former University of Zimbabwe lecturer was too close to Information Minister Jonathan Moyo and had a pro-government track record. He had also seized a farm from a white farmer and was facing a legal challenge.

MDC Secretary for Legal Affairs David Coltart, however, said the party had decided against seeking recusal of Hlatshwayo because the case would be difficult to win and would only delay the hearing of the election petition.

Full cable:

Viewing cable 03HARARE2185, ELECTION PETITION HEARINGS UNDERWAY

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

031524Z Nov 03

C O N F I D E N T I A L HARARE 002185

SIPDIS

AF/S FOR M. RAYNOR

NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER

LONDON FOR C. GURNEY

PARIS FOR C. NEARY

NAIROBI FOR T. PFLAUMER

E.O. 12958: DECL: 11/03/2013

TAGS: PGOV PHUM ZI

SUBJECT: ELECTION PETITION HEARINGS UNDERWAY

REF: HARARE 2123

Classified By: Political Officer Win Dayton under Section 1.5(b)(d)

¶1. (U) Presided over by High Court Justice Hlatshwayo,

hearings on the MDC’s petition seeking invalidation of

Zimbabwe’s 2002 election results commenced November 3.

Attorneys for the MDC spent the day reviewing arguments

advanced in the party’s petition (e-mailed to AF/S),

interrupted occasionally with questions by a soft-spoken

Justice Hlatshwayo. The day’s first order of business was a

shifting — on petitioner’s motion — of the court venue to a

larger courtroom within the High Court to accommodate the

modest crowd of several dozen spectators, which included

foreign diplomats.

¶2. (C) Last week’s naming of Hlatshwayo as presiding justice

was an unwelcome development for the MDC. A relative

newcomer to the bench, Hlatshwayo already has developed a

pro-government track record in politically sensitive cases,

including a recent contest over elections in Chegutu, in

which he upheld the election’s result despite the violent

obstruction of MDC members from registering their

candidacies. A former university lecturer known for his

outspokenly socialist views, Hlatshwayo was seen as a close

protege of Information Minister Jonathan Moyo when they

served on a constitutional commission together in the run-up

to the 2000 constitutional referendum. He seized a farm in

connection with the government’s land reform program and is

respondent in a legal challenge being brought by the

aggrieved farmer.

¶3. (C) MDC Secretary for Legal Affairs David Coltart told

poloff that the MDC had decided against seeking recusal of

Justice Hlatshwayo (contrary to reports in the

government-controlled press). Such a motion would have been

difficult to win and would have served only to delay

commencement of an examination of the case’s merits.

Hlatshwayo’s assignment to the case only served to underscore

the inevitability of the case’s outcome, but the MDC was

pleased to have proceedings underway in any event. Coltart

said the presence of U.S. Federal District Judge Davis (here

on behalf of the American Bar Association) and another Kenyan

jurist as international observers was critical in keeping

Hlatshwayo “honest” — at least on technical motions such as

the venue change.

¶4. (C) COMMENT: Today’s edition of the

government-controlled Herald carried nothing on the hearing,

underscoring the government’s interest in minimizing coverage

of the case at home even as the MDC seeks to maximize

coverage abroad. Although prospects for an overturning of

the election result seem unlikely, timetable for the case’s

progress remains an uncertain variable. As reported reftel,

constitutional arguments are likely to be wrapped up within

the next week or so. The High Court can decide on them

itself or refer them to the Supreme Court for judgment —

either step could take months. Assuming a finding for the

government in this first phase, the case would then proceed

to a second phase that would address evidence of specific

incidents of intimidation and misconduct — a spectacle the

government would prefer to defer until next year, if ever.

SULLIVAN

(47 VIEWS)