Mugabe closer to having his ideal court

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

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——————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

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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:

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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

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——————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

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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.

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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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