Mtetwa said McNally decided to stay on after getting support from Vatican

Supreme Court Judge Nicholas McNally was emboldened to stay on after receiving a flood of supportive calls from around the world including the Vatican, lawyer Beatrice Mtetwa told United States embassy officials.

McNally had been pressured to leave by Justice Minister Patrick Chinamasa who had already succeeded in getting Chief Justice Antony Gubbay to resign.

McNally told an embassy official that he had called Chinamasa to tell him that he had decided to decline his kind offer.

McNally sent a defiant letter to the Herald stating that the Supreme Court did not favour any particular group and gave all Zimbabweans, including landless peasants, a fair hearing.

Full cable:

Viewing cable 01HARARE766, REMAINING ZIMBABWE SUPREME COURT JUSTICES STAND

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CONFIDENTIAL     PTO4844

PAGE 01       HARARE 00766 01 OF 02 161136Z

ACTION AF-00

INFO LOG-00   NP-00   AID-00   AMAD-00 ACQ-00   CIAE-00 USNW-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 PMB-00   DSCC-00 PRM-01

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

——————C69783 161136Z /38

FM AMEMBASSY HARARE

TO SECSTATE WASHDC IMMEDIATE 8243

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 000766

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER

LONDON FOR GURNEY

PARIS FOR WILLIAMS

NAIROBI FOR PFLAUMER

E.O. 12958: DECL. 02/16/11

TAGS: PGOV PHUM KDEM PINS PINR ZI

SUBJECT: REMAINING ZIMBABWE SUPREME COURT JUSTICES STAND

FIRM FOR NOW

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PAGE 02       HARARE 00766 01 OF 02 161136Z

REFS: A) HARARE 694, B) HARARE 644

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

(B) AND (D).

¶1. (C) AFTER JUSTICE MINISTER PATRICK CHINAMASA STRONG-

ARMED CHIEF JUSTICE ANTHONY GUBBAY INTO RESIGNING (REF B),

THE REMAINING FOUR SUPREME COURT JUSTICES ARE STANDING FIRM

FOR NOW. JUSTICE NICHOLAS MCNALLY TOLD POLITICAL CHIEF ON

FEBRUARY 13 THAT AFTER CHINAMASA PRESSURED HIM TO RESIGN ON

FEBRUARY 9 (REF A), HE LATER CALLED CHINAMASA AND TOLD HIM

THAT HE HAD DECIDED TO “DECLINE HIS KIND OFFER.” AT FIRST,

MCNALLY WAS INCLINED TO GIVE IN, BUT THEN HE JUST COULD NOT

BRING HIMSELF TO DO IT, HE TOLD US. MCNALLY NOW PLANS TO

STAY ON UNTIL THE END OF THE YEAR WHEN HE REACHES THE

MANDATORY RETIREMENT AGE. ACCORDING TO PROMINENT ATTORNEY

BEATRICE MTETWA, MCNALLY WAS EMBOLDENED TO STAY ON AFTER

RECEIVING A FLOOD OF SUPPORTIVE CALLS FROM AROUND THE

WORLD, INCLUDING FROM THE VATICAN. MCNALLY SENT A DEFIANT

LETTER TO THE GOVERNMENT-OWNED “THE HERALD,” WHICH WAS

PUBLISHED IN THE FEBRUARY 15 EDITION, STATING THAT THE

SUPREME COURT DOES NOT FAVOR ANY PARTICULAR GROUP AND GIVES

ALL ZIMBABWEANS, INCLUDING LANDLESS PEASANTS, A FAIR

HEARING.

¶2. (C) JUSTICE AHMED IBRAHIM, WHO WAS ALSO APPROACHED BY

CHINAMASA FEBRUARY 9 AND ASKED TO RESIGN (REF A), IS

WAVERING, BUT HAS NOT DECIDED WHETHER OR NOT HE WILL QUIT.

IBRAHIM REPORTEDLY TOLD CHINAMASA THAT HE WOULD HAVE TO

CONSULT WITH HIS FAMILY BEFORE HE MAKES A DECISION. THE

FEBRUARY 15-21 “FINANCIAL GAZETTE” REPORTED THAT IBRAHIM’S

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PAGE 03       HARARE 00766 01 OF 02 161136Z

FAMILY HAS URGED HIM TO STEP DOWN, BUT THAT HE IS UNDER

PRESSURE FROM OTHER JUDGES TO STAY ON.

¶3. (C) IN A CONVERSATION WITH THE CHARGE FEBRUARY 15,

JUSTICE WILSON SANDURA SAID THAT HE WOULD NOT RESIGN UNDER

PRESSURE, EVEN THOUGH HE AND HIS BLACK COLLEAGUE, JUSTICE

SIMBARASHE MUCHECHETERE, HAVE NOT YET BEEN APPROACHED BY

CHINAMASA. SANDURA SAID THAT BOTH MUCHECHETERE AND IBRAHIM

WILL STAY. SANDURA SUSPECTS THAT THE PRESSURE WILL COME,

HOWEVER, BECAUSE HIGH COURT JUDGE PRESIDENT GODFREY

CHIDYAUSIKU — GUBBAY’S LIKELY REPLACEMENT AS CHIEF JUSTICE

— DOES NOT WANT TO TAKE OVER THE TOP SPOT ON THE BENCH IF

THE OTHER JUSTICES REMAIN. IN FACT, SANDURA TOLD THE

CHARGE THAT CHIDYAUSIKU HAS IDENTIFIED AT LEAST FOUR

CURRENTLY-SERVING HIGH COURT JUDGES HE WILL INSIST

ACCOMPANY HIM TO THE SUPREME COURT, ESSENTIALLY PACKING THE

COURT WITH JUDGES SYMPATHETIC TO THE RULING ZANU-PF.

(COMMENT: IT IS OUR UNDERSTANDING THAT ZIMBABWEAN LAW

REQUIRES A MINIMUM OF FIVE SUPREME COURT JUSTICES BUT DOES

NOT ESTABLISH A MAXIMUM NUMBER, MEANING THAT PRESIDENT

MUGABE COULD APPOINT AS MANY JUSTICES AS HE CONSIDERS

NECESSARY. PACKING THE COURT IS THE EASIEST WAY FOR THE

PRESIDENT TO DILUTE THE INFLUENCE OF THE SITTING JUSTICES.

IT IS VERY DIFFICULT TO REMOVE A MEMBER OF ZIMBABWE’S

HIGHEST COURT, EVEN FOR CAUSE. ZIMBABWE HAS NO JUDICIAL

CODE OF CONDUCT TO SERVE AS A STANDARD AND THE PROCESS

ITSELF IS STACKED AGAINST THE EXECUTIVE BY THE

CONSTITUTION. END COMMENT.)

¶4. (C) STERNFORD MOYO, PRESIDENT OF THE LAW SOCIETY OF

ZIMBABWE, TOLD US ON FEBRUARY 16 THAT HE HAS SPOKEN

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PAGE 04       HARARE 00766 01 OF 02 161136Z

INDIVIDUALLY WITH EACH OF THE JUDGES, AND HAS URGED THEM TO

STAND FIRM. IN THE MEANTIME, HE HAS SUCCESSFULLY MARSHALED

PUBLIC STATEMENTS OF SUPPORT FOR THE JUSTICES FROM THE LAW

SOCIETIES OF ZAMBIA AND SOUTH AFRICA. MOYO NOTED THAT THE

INTERNATIONAL BAR ASSOCIATION INTENDED, WITHIN A WEEK, TO

SEND A DELEGATION TO ZIMBABWE TO PRESS THE GOVERNMENT TO

STAND DOWN FROM ITS ATTACKS AGAINST THE JUDICIARY. MOYO

WAS CONFIDENT THAT JUSTICES SANDURA AND MUCHECHETERE WOULD

REFUSE TO RESIGN, BUT THOUGHT THAT IBRAHIM COULD GO EITHER

WAY.

¶5. (C) COMMENT: ZIMBABWE’S SUPREME COURT JUSTICES ARE AT A

CRITICAL CROSSROADS. THREE OF THE FIVE — SANDURA,

MUCHECHETERE, AND IBRAHIM — ARE SEVERAL YEARS FROM

RETIREMENT AGE, AND THAT CAN SEEM LIKE A LONG TIME UNDER

THE CURRENT TENSE CIRCUMSTANCES. PRIVATE, INTERNATIONAL

CALLS OF SUPPORT, AS WELL AS THE SYMPATHETIC PUBLIC

STATEMENTS FROM THEIR LEGAL COLLEAGUES IN THE REGION —

HAVE UNDOUBTEDLY BOLSTERED THE RESOLVE OF THE REMAINING

JUSTICES. THE LEGAL COMMUNITY HAS URGED THE JUSTICES TO

HANG ON LONG ENOUGH TO ALLOW TIME FOR THE SHOCK OF

CHINAMASA’S DEMANDS TO WEAR OFF, AND TO ALLOW SUPPORT FROM

DOMESTIC AND INTERNATIONAL GROUPS TO COALESCE. THAT

STRATEGY SEEMS TO BE WORKING FOR NOW. HOWEVER, IF THE

INCUMBENT JUSTICES DO DECIDE TO STAY PUT, WE SUSPECT THAT

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PAGE 01       HARARE 00766 02 OF 02 161136Z

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     /009W

——————C69785 161136Z /38

O 161137Z FEB 01

FM AMEMBASSY HARARE

TO SECSTATE WASHDC IMMEDIATE 8244

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 000766

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER

LONDON FOR GURNEY

PARIS FOR WILLIAMS

NAIROBI FOR PFLAUMER

E.O. 12958: DECL. 02/16/11

TAGS: PGOV PHUM KDEM PINS PINR ZI

SUBJECT: REMAINING ZIMBABWE SUPREME COURT JUSTICES STAND

FIRM FOR NOW

CONFIDENTIAL

PAGE 02       HARARE 00766 02 OF 02 161136Z

PRESIDENT MUGABE WILL MOVE TO APPOINT ADDITIONAL, PRO-ZANU-

PF JURISTS. END COMMENT.

IRVING

CONFIDENTIAL

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