Topper Whitehead played key role in presidential election challenge

The Movement for Democratic Change called for the annulment of the results of the 2002 presidential elections through a 135-page legal challenge claiming that President Robert Mugabe had stolen the election.

“Our lawyers have uncovered mountains of hardcore and powerful evidence of electoral fraud,” MDC leader Morgan Tsvangirai, who lost to Mugabe by more than 400 000 votes, said.

According to a United States embassy official most of the information in the legal challenge was gathered by Topper Whitehead, described as an MDC supporter who held no official position in the party.

Whitehead said one of the reasons why the MDC had gone to court was to provide leverage in the talks with ZANU-PF due to reconvene the following month.

According to the embassy several MDC officials said that the party had no hope of success in its legal challenge of the election but it wanted to pursue all possible avenues and be seen as taking some kind of action.

Full cable:

Viewing cable 02HARARE927, ZIMBABWE OPPOSITION FILES LEGAL CHALLENGE TO

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

C O N F I D E N T I A L HARARE 000927

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER

LONDON FOR CHARLES GURNEY

PARIS FOR CHARLES NEARY

NAIROBI FOR TERRY PFLAUMER

E.O. 12958: DECL: 04/16/12

TAGS: PGOV PHUM ZI

SUBJECT: ZIMBABWE OPPOSITION FILES LEGAL CHALLENGE TO

PRESIDENTIAL ELECTION

REF: HARARE 913

Classified by Political Officer Todd Faulk for reasons:

1.5 (b) and (d).

¶1. (U) On April 12, the opposition Movement for

Democratic Change (MDC) filed with the High Court a 135-

page legal challenge to President Mugabe’s declared

victory in the March presidential poll. The filing was

made just before the 30-day deadline to submit electoral

challenges elapsed. The lawsuit calls for an annulment

of the election result and a new election under

international supervision. In an April 11 press

statement, MDC President Morgan Tsvangirai stated that

the election “was stolen from the people of Zimbabwe,”

and that the MDC sees “the legal process as

complementing the political process.” “Our lawyers have

uncovered mountains of hardcore and powerful evidence of

electoral fraud,” Tsvangirai claimed, but he clearly

acknowledged that the legal case’s biggest hurdle is

overcoming the judicial system subverted by the ruling

party.

¶2. (C) On April 15, poloff spoke to Topper Whitehead,

who gathered most of the information presented in the

legal challenge. He is an MDC supporter, but holds no

official position in the party. Whitehead stated that

President Mugabe, along with Registrar-General Tobaiwa

Mudede, Minister of Justice Patrick Chinamasa, and

Electoral Supervisory Chairman Sobusa Gula-Ndebele, are

respondents in the case. All have been served with

papers to appear in court, except Mugabe, whose office

refuses to accept them; there are ways around this,

Whitehead said, but it would lead to delays in the court

hearing the case. Whitehead conveyed that the MDC is

gathering affidavits from polling agents, presiding

officers and voters who can attest to instances of

electoral fraud. Thousands of pages of documentation

and videotape from hundreds of eyewitnesses have already

been gathered. One of the reasons the MDC is going to

court over the election, Whitehead opined, is to provide

leverage in the talks with ZANU-PF due to reconvene on

May 13 (REFTEL). The MDC would like to have the option

of dropping the case if the talks lead to some sort of

resolution.

¶3. (C) In a related development, Whitehead informed

poloff that last week the Supreme Court ruled against an

earlier MDC legal measure challenging the validity of

Section 158 of the Electoral Act, which gives Mugabe the

power to issue decrees regarding the conduct of

elections. It was a 4-to-1 decision in which Wilson

Sandura was the only dissenter. A copy of the decision

has not been made available to the MDC yet, Whitehead

added, but the Court basically ruled that the issue was

not a constitutional one and should be heard in the High

Court first. As a result, the Section 158 challenge has

now been incorporated into the MDC’s latest lawsuit.

¶4. (C) Comment: We have been told by several MDC

officials that the MDC has no hope of success in its

legal challenge of the election but that it wants to

pursue all possible avenues and be seen as taking some

kind of action. It is also a useful bargaining chip in

the inter-party talks — one of the few the opposition

has left. It is too early to tell how the case will

proceed in the courts, but experience suggests ZANU-PF

will use its influence to ensure the courts drag out the

proceedings — and consume the MDC’s resources — before

ultimately throwing the case out. End comment.

Whitehead

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