Mudzuri says Chombo is undermining MDC

The former mayor of Harare Elias Mudzuri who was suspended from his post by Local Government Minister Ignatius Chombo told United States embassy officials that Chombo was trying to undermine the Movement for Democratic Change by persecuting him so that he could seize control of municipalities that the Zimbabwe African National Union- Patriotic Front could not win through the ballot.

Mudzuri was commenting on his case after the High Court had deferred a decision of Chombo’s application that Mudzuri should not perform his duties as mayor.

Mudzuri told United States ambassador to Zimbabwe Joseph Sullivan on 17 September 2003 that the court had demurred indefinitely because it had no evidence to support Chombo’s dismissal but was unwilling to go against the government.

He said the cowed court was playing into the government’s plan to seize de facto control of the municipalities it was incapable of winning electorally by incrementally replacing legally incapacitated municipal authorities with acting appointees beholden to Chombo.

Mudzuri said that the performance of the acting Mayor, though from the MDC, was degrading the level of municipal service and public trust and that – by design – could taint the entire MDC.

Full cable:

Viewing cable 03HARARE1935, COURT DECISIONS CLOUD CIVIL RIGHTS, POLITICAL

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

UNCLAS SECTION 01 OF 03 HARARE 001935

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER

LONDON FOR C. GURNEY

PARIS FOR C. NEARY

NAIROBI FOR T. PFLAUMER

SENSITIVE

E.O. 12958: N/A

TAGS: PGOV PHUM SOCI ZI

SUBJECT: COURT DECISIONS CLOUD CIVIL RIGHTS, POLITICAL

WATERS

REF: (A) HARARE 1911 (B) HARARE 361

SENSITIVE BUT UNCLASSIFIED. NOT FOR INTERNET POSTING.

PROTECT ACCORDINGLY.

¶1. (SBU) SUMMARY: The Supreme and High Courts of Zimbabwe

this month have made several notable judgments that may

shape the future of jurisprudence in the country. Judgments

in cases involving The Daily News (TDN) and High Court

Justice Paradza set precedents with potentially far-reaching

implications for the independence of the press and

judiciary, while progress in the Nkala murder trial and

legal battles over suspended Harare Mayor Elias Mudzuri’s

tenure will affect the domestic political climate. The

cases bear out continuing uncertainty for litigants in

politically sensitive cases, with potentially critical

consequences for civil society, the judiciary, the

opposition, and the integrity of the constitution.   END

SUMMARY.

First TDN Ruling Subordinates Constitutional Rights to

Legislative Law

——————————————— ———

¶2. (U) The September 11 Supreme Court ruling in The Daily

News case (ref A) seems to say that one cannot bring forward

a constitutional claim unless one has first complied with

the law to be challenged. Even if the law may irrevocably

damage a constitutional right, an individual may still not

challenge that law. That leaves the question of how one can

get immediate protection from a law that violates a

constitutional right? (Note: the High Court’s provisional

order of September 18 allowing TDN to publish again did not

question the September 11 order, which only concluded that

the Court could not hear TDN’s constitutional challenge

until it had complied with the law. End Note.)

¶3. (SBU) The ruling sets a troublesome precedent for

individuals who seek to challenge the implementation of laws

that seek to strengthen the government’s hold over the media

and civic organizations. A notable example already alarming

the NGO community is the Private Voluntary Organizations

(PVO) Act, which requires NGOs to register. Most NGOs in

the country have not registered with the Ministry of Public

Service, Labor and Social Welfare and may be considered to

be operating illegally. The Ministry is drafting a new Act,

which is expected to be more stringent than the current one.

The TDN ruling could be taken to require that NGOs register

with the Ministry under the Act before they attempt to

challenge the Act’s objectionable provisions. (Note:

Further developments relating to TDN case reported septel.

End Note.)

Paradza Case Offers Hope to Judiciary

————————————-

¶4. (SBU) The Supreme Court ruled on September 16 that the

arrest, detention and remand of High Court Justice Benjamin

Paradza in February (ref B) this year was unlawful. Paradza

had been charged with defeating the course of justice or

alternatively trying to contravene the Prevention of

Corruption Act. The charges stemmed from allegations that

he had contacted three fellow judges of the High Court in an

effort to influence them to release a passport belonging to

his business partner. Justice Paradza’s attorney Jonathan

Samkange told us that he was pleasantly surprised by this

judgment, which he attributed to the composition of the

bench. He told us that Justice Paradza’s legal team asked

Chief Justice Chidyausiku and Justice Cheda to recuse

themselves from the case because each was personally

involved in the matter. Samkange asserted that the judgment

would have been unfavorable if not for the presence of

Justice Sandura, who is viewed as non-partisan. Justice

Sandura asked probing questions, which forced the state

attorneys to concede that the state’s actions had been

unlawful. Samkange told us that Justice Paradza would be

suing all the parties who were involved in his unlawful

arrest. This ruling will strengthen the position of judges,

affording greater protection from future unlawful arrests.

Nkala Murder Case Showcases Alleged Government Abuses

——————————————— ——–

¶5. (U) The trial of MDC MP Fletcher Duluni Ncube and five

other MDC activists continues in the High Court. The case

has now become “a trial within a trial” as the court looks

into allegations of torture raised by three of the witnesses

during the course of the trial. Remember Moyo, Khetani

Sibanda and Sazini Mpofu claim that the police forced them

into making confessions. They claim that they were

assaulted, denied food, denied access to legal

representation and unduly influenced. The court is

currently hearing the testimony of the third witness Sazini

Mpofu, who alleges that the police threatened to kill

members of his family. The police deny the allegations of

torture and maintain that the three admitted to the crime

freely and voluntarily. All three witnesses are currently

in remand prison.

¶6. (SBU) The court will need to determine if these

allegations are true before it decides to admit their

statements as evidence during the trial. The defense

attorney told us that all three men have been receiving

better treatment in remand prison since they raised the

issue of being tortured. Initially they complained to the

court about being forced to wear prison uniforms to trial.

They also complained to their attorneys about not being

allowed to eat food with other prisoners in remand. The

court ordered that they be allowed to wear civilian

clothing. Since the allegations of state involvement in the

death of MDC MP Learnmore Jongwe in remand prison, the three

have also been allowed to eat with other prisoners. MDC MP

Fletcher Dulini Ncube remains out of police custody.

Although his health has improved, Duluni Ncube has never

recovered from losing vision in one of his eyes during the

time he was arrested and imprisoned.

Mayor’s Plight Highlights the Court as Political

Battleground

——————————————— —

¶7. (SBU) In the long running battle between Minister of

Local Governance Ignatius Chombo and Harare’s MDC Mayor

Elias Mudzuri, the High Court deferred decision on Chombo’s

application to confirm a provisional order barring the

suspended mayor from performing council duties. Mudzuri

asserted to the Ambassador on September 17 that the Court

had demurred indefinitely because it had no evidence to

support Chombo’s dismissal but was unwilling to go against

the government. According to Mudzuri, the list of wild

charges against him had boiled down to a handful of still

unsubstantiated charges – essentially ones relating to

alleged interference with a government “turnaround strategy”

and malfeasance associated with manpower audit.

¶8. According to Mudzuri, the cowed court was playing into

the government’s plan to seize de facto control of the

municipalities it was incapable of winning electorally: it

would incrementally replace legally incapacitated municipal

authorities with acting appointees beholden to Chombo.

Meanwhile, as Mudzuri committed his time and resources to

litigation, he maintained that the performance of the acting

Mayor (an allegedly compromised MDC colleague) was degrading

the level of municipal service and public trust that – by

design – could taint the entire MDC. The Mayor is fighting

a two-front war: even as he contends with Chombo in court,

he must respond to inquiries from a related investigatory

commission established by Chombo to investigate the charges.

Comment

——-

¶9. (SBU) At independence in 1980, Zimbabwe’s civil court

system was handling hundreds of cases a year; it now buckles

under a caseload of tens of thousands. This overcapacity

bears testament that the courts remain a resort of first and

last resort for many Zimbabweans — increasingly so in the

political battles between the government and its critics.

The ruling party generally has wielded the law as a sword,

but the sword often has proved to be double-edged. Meant as

a message to the judiciary, the Paradza case backfired.

Similarly, the Nkala case is showcasing the ruling party’s

violent side, not the opposition’s, as the state originally

intended. Even when the courts are inclined to favor the

government, pro-government rulings have tended to provoke a

public backlash, as with the adverse TDN actions and, to a

lesser extent, the Mayor’s case.

¶10. (SBU) The presiding judge remains a key variable in the

outcome of any case. The government over time has devoted

considerable effort to bending the judiciary to its will,

whether through judicial appointments that it controls, by

outright intimidation or, ironically, through the court

system – as it attempted to do in the Paradza case. Pro-

government Chief Justice Chidyausiku exerts considerable

influence throughout the bench and can determine the outcome

of cases over which he chooses to preside. On the other

hand, Justice Sandura and others retain considerable

influence and are able to influence colleagues so long as

Chidyausiku is not sitting alongside.

¶11. (SBU) Despite a toll imposed by attrition among the

independent-minded, the bench continues to field a host of

objective judges with full command of Zimbabwe’s relatively

rich and mature jurisprudence. Whether they are beholden to

the ruling party or not, though, all judges are acutely

conscious of the political milieu in which they operate.

This explains in part the frequent tendency of judges to

defer decisions — at once unwilling either to violate the

letter of the law or to hazard their careers on the

integrity of a ruling.

¶12. (SBU) The state’s disappointment in selected recent

cases can be expected to sharpen its efforts to bring to

heel an institution regarded by many as fatally compromised

but still capable of occasionally exerting meaningful checks

and balances on a dominant executive branch. In any event,

government strategies to hedge against or circumvent court

rulings legislatively and administratively (as in the TDN

case), left unchecked, will continue to reduce the

judiciary’s importance over time. The continuing TDN saga,

the upcoming Tsvangirai treason trial (now due to recommence

October 27 upon further postponement by presiding Justice

Garwe), and the opposition’s election challenge (November)

will further test a judicial system straining mightily under

resource and political challenges.

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