President Robert Mugabe got closer to having his ideal court when two independent judges Nicholas McNally and Simbarashe Muchechetere left the scene, one through death and the other by resigning, according to the United States embassy.
Mugabe had already replaced the Chief Justice Anthony Gubbay with his man Godfrey Chidyausiku.
The embassy said of the six remaining judges, only two could be described as independent. The other four were beginning to look amenable to the ruling party’s legal agenda.
The embassy gave an assessment of each of the six judges: Godfrey Chidyausiku, Misheck Cheda, Luke Malaba, Vernanda Ziyambi, Ahmed Ibrahim and Wilson Sandura.
Full cable:
Viewing cable 02HARARE38, LOSS OF TWO ZIMBABWE SUPREME COURT JUSTICES
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This record is a partial extract of the original cable. The full text of the original cable is not available.
040833Z Jan 02
CONFIDENTIAL PTQ6228
PAGE 01 HARARE 00038 01 OF 02 041117Z
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
PC-01 PM-00 PRS-00 ACE-00 P-00 SP-00 SSO-00
STR-00 TRSE-00 USIE-00 PMB-00 DSCC-00 PRM-00 DRL-02
G-00 NFAT-00 SAS-00 SWCI-00 /009W
——————533A32 041117Z /38
FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 0643
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 000038
SIPDIS
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER
LONDON FOR CHARLES GURNEY
PARIS FOR CHARLES NEARY
NAIROBI FOR TERRY PFLAUMER
E.O. 12958: DECL: 01/04/12
TAGS: PGOV PHUM PINR PHUM PINR ZI
SUBJECT: LOSS OF TWO ZIMBABWE SUPREME COURT JUSTICES
STRENGTHENS ZANU-PF’S INFLUENCE OVER BENCH
REFS: A) ’01 HARARE 3631, B) ’01 HARARE 2345,
C) ’01 HARARE 766
CLASSIFIED BY POLITICAL OFFICER TODD FAULK FOR REASONS:
1.5 (B) AND (D).
¶1. (C) SUMMARY: THE DECEMBER 27 DEATH OF SUPREME COURT
JUSTICE SIMBARASHE MUCHECHETERE AND THE DECEMBER 31
RETIREMENT OF JUSTICE NICHOLAS MCNALLY BRINGS INTO
QUESTION THE FUTURE ROLE OF WHAT HAS STOOD AS AN AFRICAN
MODEL OF JUDICIAL INDEPENDENCE. ONLY TWO OF THE SIX
REMAINING MEMBERS CAN BE DESCRIBED AS VERIFIABLY
INDEPENDENT. CHIEF JUSTICE GODFREY CHIDYAUSIKU HAS
ALREADY PROVEN HIMSELF AS AN INSTRUMENT OF ZANU-PF, AND
THE ROLE OF THE REMAINING THREE JUSTICES REMAINS UNCLEAR,
DESPITE INITIAL INDICATIONS THAT THEY TOO MAY BE
FAVORABLE TO THE ZANU-PF AGENDA. HOW GROUPS PLANNING
CONSTITUTIONAL CHALLENGES TO PENDING REPRESSIVE
LEGISLATION FARE IN THEIR LEGAL CASES WILL CLARIFY THE
ULTIMATE POSTURE OF THE BENCH. END SUMMARY.
LOSS OF TWO INDEPENDENTS
————————
¶2. (C) EARLY ON DECEMBER 27, SUPREME COURT JUSTICE
SIMBARASHE MUCHECHETERE, AGE 57, DIED IN HIS BULAWAYO
HOME, REPORTEDLY FROM MALARIA COMPLICATIONS.
MUCHECHETERE’S SUDDEN DEATH CAME AS A SURPRISE BECAUSE
HE WAS BELIEVED TO BE IN GOOD HEALTH. HE WAS WELL-
REGARDED ON THE BENCH, ON WHICH HE HAD SERVED SINCE
1993, AND WAS GENERALLY VIEWED AS INDEPENDENT OF PARTY
CONFIDENTIAL
PAGE 03 HARARE 00038 01 OF 02 041117Z
POLITICS. ON DECEMBER 31, JUSTICE NICHOLAS MCNALLY
OFFICIALLY RETIRED FROM THE HIGHEST COURT AFTER REACHING
THE MANDATORY RETIREMENT AGE OF 70. (NOTE: ZIMBABWEAN
JUDGES NORMALLY MUST RETIRE AT 65, BUT IF THEY CAN
DEMONSTRATE GOOD MENTAL AND PHYSICAL HEALTH TO A DOCTOR,
THEY CAN STAY ON TO THE AGE OF 70, AFTER WHICH NO
EXTENSION IS POSSIBLE. END NOTE.) IN FEBRUARY 2001,
JUSTICE MINISTER PATRICK CHINAMASA ATTEMPTED TO FORCE
MCNALLY INTO EARLY RETIREMENT — AFTER SUCCESSFULLY
DOING SO WITH CHIEF JUSTICE ANTHONY GUBBAY — BUT
MCNALLY RESISTED. MCNALLY WAS KNOWN LOCALLY FOR HIS
RESPECT OF THE LAW. (NOTE: THE JANUARY 3 EDITION OF THE
GOVERNMENT-CONTROLLED “THE HERALD” REPORTED THAT HIGH
COURT JUDGE DAVID BARTLETT UNEXPECTEDLY RESIGNED ON
DECEMBER 31; BARTLETT COULD LEAVE OFFICE AS SOON AS
FEBRUARY 28. BARTLETT IS THE FOURTH HIGH COURT JUDGE TO
RESIGN IN THE LAST YEAR. END NOTE.)
MUGABE IS CLOSER TO HAVING HIS IDEAL COURT
——————————————
¶3. (C) THE DEPARTURE OF TWO INDEPENDENT JUSTICES LEAVES
THE ZIMBABWE SUPREME COURT UNDER THE INFLUENCE OF ZANU-
PF. MUGABE REPLACED GUBBAY WITH ZANU-PF SYCOPHANT
GODFREY CHIDYAUSIKU AND APPOINTED THREE NEW MEMBERS TO
THE BENCH IN AUGUST 2001, EXPANDING THE BENCH FROM FIVE
TO EIGHT MEMBERS. OF THE SIX REMAINING MEMBERS, ONLY
TWO CAN BE DESCRIBED AS INDEPENDENT; THE OTHER FOUR ARE
BEGINNING TO LOOK AMENABLE TO THE RULING PARTY’S LEGAL
AGENDA. BELOW IS A SUMMARY OF WHAT WE KNOW ABOUT THE
REMAINING SIX:
CONFIDENTIAL
PAGE 04 HARARE 00038 01 OF 02 041117Z
— CHIEF JUSTICE GODFREY CHIDYAUSIKU, AGE 54: FORMER
JUDGE PRESIDENT OF THE HIGH COURT, BECAME ACTING CHIEF
JUSTICE IN MARCH 2001 AFTER GUBBAY WAS FORCED TO RETIRE;
OFFICIALLY APPOINTED IN AUGUST 2001. CHIDYAUSIKU’S
LINKS TO ZANU-PF ARE WIDELY KNOWN: HE SERVED IN TWO
DEPUTY MINISTERIAL POSITIONS IN THE EARLY 1980S AND WAS
CHAIRMAN OF THE GOVERNMENT’S CONSTITUTIONAL COMMISSION
IN 1999; OUR CONTACTS TELL US HE IS ALSO SLATED TO
RECEIVE PROPERTY UNDER THE GOVERNMENT’S LAND
REDISTRIBUTION PROGRAM. CHIDYAUSIKU WROTE THE DECEMBER
3, 2001 DECISION THAT ESSENTIALLY LEGALIZED THE
GOVERNMENT’S SEIZURE OF COMMERCIAL FARMING PROPERTY (REF
A). A GROUP OF BLACK ZIMBABWEAN LAWYERS CIRCULATED A
LETTER BEFORE CHIDYAUSIKU’S APPOINTMENT CALLING HIM
“MORALLY UNFIT” TO SERVE AS CHIEF JUSTICE AND CITED
CASES OF WOMANIZING, PUBLIC OUTBURSTS, SEXUAL
HARASSMENT, AND PHYSICAL ASSAULT.
— JUSTICE MISHECK CHEDA: JUDGE OF THE BULAWAYO HIGH
COURT FROM 1991 UNTIL HIS APPOINTMENT TO THE SUPREME
COURT IN AUGUST 2001; SERVED AS PERMANENT SECRETARY FOR
MINISTRY OF JUSTICE 1989-1991. CHEDA HAS BEEN DESCRIBED
AS A SOUND JUDGE AND IS A FORMER CRITIC OF CHIDYAUSIKU’S
PRO-GOVERNMENT RULINGS. HOWEVER, CHEDA WENT ALONG WITH
CONFIDENTIAL
CONFIDENTIAL PTQ6230
PAGE 01 HARARE 00038 02 OF 02 041117Z
ACTION AF-00
INFO LOG-00 NP-00 AID-00 AMAD-00 ACQ-00 CIAE-00 INL-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 PC-01 PM-00 PRS-00 ACE-00 P-00
SP-00 SSO-00 STR-00 TRSE-00 USIE-00 PMB-00 DSCC-00
PRM-00 DRL-02 G-00 NFAT-00 SAS-00 SWCI-00 /009W
——————533A36 041118Z /38
O 040833Z JAN 02
FM AMEMBASSY HARARE
TO SECSTATE WASHDC IMMEDIATE 0644
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 000038
SIPDIS
NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER
LONDON FOR CHARLES GURNEY
PARIS FOR CHARLES NEARY
NAIROBI FOR TERRY PFLAUMER
E.O. 12958: DECL: 01/04/12
TAGS: PGOV PHUM PINR PHUM PINR ZI
SUBJECT: LOSS OF TWO ZIMBABWE SUPREME COURT JUSTICES
STRENGTHENS ZANU-PF’S INFLUENCE OVER BENCH
CONFIDENTIAL
PAGE 02 HARARE 00038 02 OF 02 041117Z
THE DECEMBER LAND DECISION LEGALIZING FARM SEIZURES.
— JUSTICE LUKE MALABA: JUDGE OF THE BULAWAYO HIGH COURT
FROM 1994 UNTIL HIS APPOINTMENT IN AUGUST 2001; ONCE
DESCRIBED AS ONE OF THE MOST CAPABLE LAWYERS IN
MATABELELAND; HAS A STRONG HUMAN RIGHTS BACKGROUND, BUT
SIGNED ONTO THE DECEMBER LAND RULING.
— JUSTICE VERNANDA ZIYAMBI: THE FIRST FEMALE ZIMBABWE
SUPREME COURT JUSTICE; FORMER JUDGE OF THE HARARE HIGH
COURT. ZIYAMBI HAS SOMEWHAT WEAKER LEGAL CREDENTIALS
THAN HER COUNTERPARTS, BUT IS REPORTED TO HAVE STRONG
RELIGIOUS CONVICTIONS. ZIYAMBI’S HUSBAND WAS MINISTER
OF JUSTICE UNTIL HE DIED IN A CAR ACCIDENT IN 1991.
ZIYAMBI’S CHILDREN REPORTEDLY BLAME ZANU-PF FOR
ORCHESTRATING HIS DEATH, BUT IT IS UNCLEAR WHETHER
ZIYAMBI DOES AS WELL.
— JUSTICE AHMED IBRAHIM, AGE 64: THE LONGEST-SERVING
MEMBER OF THE CURRENT BENCH (SINCE 1990); THE MOST
PROMINENT MUSLIM IN ZIMBABWE AND PRESIDENT OF THE LOCAL
ISLAMIC CULTURAL SOCIETY; WELL-KNOWN FOR HIS RESPECT OF
THE LAW AND INDEPENDENT THINKING. IBRAHIM SERVED IN THE
ATTORNEY-GENERAL’S OFFICE IN THE EARLY 1980S BEFORE HIS
HIGH COURT APPOINTMENT IN 1984. JUSTICE MINISTER
CHINAMASA ATTEMPTED TO STRONG-ARM HIM INTO RESIGNING IN
FEBRUARY 2001 BUT INTERNATIONAL SUPPORT REPORTEDLY
CONVINCED HIM TO STAY.
— JUSTICE WILSON SANDURA, AGE 60: ON THE BENCH SINCE
1998, HE IS THE COURT’S MOST SENIOR BLACK MEMBER. HE
CONFIDENTIAL
PAGE 03 HARARE 00038 02 OF 02 041117Z
SERVED AS A HIGH COURT JUDGE BETWEEN 1983 AND 1997,
INCLUDING AS JUDGE PRESIDENT FROM 1984. SANDURA IS
WIDELY RESPECTED FOR HIS NON-PARTISAN READING OF THE LAW
AND IS VIEWED AS ONE OF THE TWO LAST REMAINING
INDEPENDENTS.
COMMENT: COURT UNDER ZANU-PF INFLUENCE
————————————–
¶4. (C) ONE OF THE MOST RESPECTED JUDICIAL INSTITUTIONS
IN AFRICA AND ONE OF THE GOVERNMENT’S MOST OUTSPOKEN
WATCHDOGS IS IN DANGER OF BECOMING A RUBBER STAMP FOR
THE GOZ AND THE ZANU-PF RULING PARTY. THE DEPARTURE OF
TWO INDEPENDENT JUSTICES PUTS MUGABE’S RECENT — AND
POSSIBLY MORE PLIABLE — APPOINTMENTS IN A CLEAR
MAJORITY ON THE BENCH. OUR SOURCES TELL US THAT CHIEF
JUSTICE CHIDYAUSIKU IS LEANING ON THE JUNIOR COURT
MEMBERS (CHEDA, MALABA, ZIYAMBI) TO PRODUCE THE RESULTS
THAT MUGABE WANTS, I.E. LEGALIZATION OF LAND SEIZURES
AND THE UPHOLDING OF REPRESSIVE LEGISLATION. AT LEAST
TWO OF THESE NEW MEMBERS WHO APPEARED TO HAVE SOLID AND
INDEPENDENT LEGAL CREDENTIALS (CHEDA AND MALABA), FELL
UNDER CHIDYAUSIKU’S SWAY ON THE DECEMBER LAND RULING.
IF MUGABE WANTS REPLACEMENT JUSTICES (THE CONSTITUTION
STIPULATES THAT THE SUPREME COURT MUST HAVE AT LEAST
FIVE MEMBERS, BUT PROVIDES NO MAXIMUM LIMIT), HE WILL
HAVE NO TROUBLE INSTALLING REPLACEMENTS HE VIEWS AS
SYMPATHETIC TO ZANU-PF’S CAUSES, WITH CHIDYAUSIKU AT THE
HELM OF THE JUDICIAL SERVICE COMMISSION. HOWEVER, AT
THIS POINT, THE PRESIDENT DOES NOT NEED REPLACEMENTS.
CONFIDENTIAL
PAGE 04 HARARE 00038 02 OF 02 041117Z
¶5. (C) COMMENT CONTINUED: THE TRUE TEST OF THE “NEW”
COURT’S LEANINGS WILL COME WHEN ORGANIZATIONS OPPOSED TO
THE GOZ’S POLICIES INTRODUCE LEGAL CHALLENGES TO
PROPOSED REPRESSIVE LEGISLATION. JOURNALIST GROUPS AND
THE MDC ARE ALREADY PREPARING CONSTITUTIONAL CASES
AGAINST THE ACCESS TO INFORMATION BILL AND THE PUBLIC
ORDER AND SECURITY BILL, RESPECTIVELY. ALTHOUGH
CHIDYAUSIKU DISMISSED THE GOVERNMENT’S INCITEMENT TO
VIOLENCE CASE AGAINST MDC PRESIDENT MORGAN TSVANGIRAI,
THE CHIEF JUSTICE GAVE THE GOVERNMENT AN “OUT” BY SAYING
IT COULD CHANGE THE LAW TO LEGALLY PERMIT FUTURE ACTION
AGAINST THE OPPOSITION LEADER. EVEN IF THE SUPREME
COURT JUSTICES BELIEVE THE REPRESSIVE LEGISLATION IS
UNCONSTITUTIONAL, WHICH MOST LEGAL EXPERTS HERE AGREE
THAT IT IS, CHIDYAUSIKU IS LIKELY TO PRESSURE HIS
COLLEAGUES INTO ISSUING EQUIVOCAL RULINGS, OR POSTPONING
THEM ALTOGETHER. END COMMENT.
SULLIVAN
CONFIDENTIAL
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