Zimbabweans still have confidence in the judicial system


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Zimbabweans still had confidence in the judicial system with 64 percent saying that they had a lot of trust in the country’s courts despite the so-called breakdown in the rule of law.

This confidence was bolstered by recent judgments against the government in politically sensitive cases.

Movement for Democratic Change leader Morgan Tsvangirai was acquitted of treason charges following allegations that he had attempted to assassinate President Robert Mugabe.

MDC treasurer Fletcher Dulini Ncube and five others were acquitted of murder charges against war veterans leader Cain Nkala.

Information Minister Jonathan Moyo was ordered to pay Z$2.5 million in damages for defamation to the Associated Newspapers of Zimbabwe, publishers of the Daily News.

 

Full cable:

 

Viewing cable 04HARARE1943, COURT CASES UPDATE — ZIMBABWE’S STRESSED JUDICIARY

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Reference ID

Created

Released

Classification

Origin

04HARARE1943

2004-11-30 14:42

2011-08-30 01:44

UNCLASSIFIED//FOR OFFICIAL USE ONLY

Embassy Harare

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 001943

 

SIPDIS

 

SENSITIVE

 

AF/S FOR B. NEULING

NSC FOR SENIOR AFRICA DIRECTOR C. COURVILLE

 

E. O. 12958: N/A

TAGS: PGOV PHUM SOCI ZI

SUBJECT: COURT CASES UPDATE — ZIMBABWE’S STRESSED JUDICIARY

STILL DELIVERING

 

REF: (A) Harare 1787 (B) Harare 1722 (C) Harare 1594 (D)

Harare 633 (E) 03 Harare 1935

 

1. (SBU) SUMMARY: Several noteworthy cases over the last few

months suggest the continuing vitality of elements within

Zimbabwe’s beleaguered judiciary despite political and

professional pressures. Courts dismissed charges in the

Cain Nkala murder trial, for example, and ordered

Information Minister Jonathan Moyo to pay an independent

newspaper publisher damages for defamatory remarks. Other

politically sensitive cases, however, languish indefinitely,

essentially denying justice through prejudicial delays. And

despite a growing string of adverse decisions, the GOZ

continues its strategy of harassing its opponents through

litigation and ignoring many decisions against it.

Nonetheless, Zimbabwean courts retain a surprising level of

trust among the general public and could play a critical

role in national recovery should political turmoil here

recede. END SUMMARY.

 

Rulings Against the Government

——————————

 

2. (U) The Tsvangirai acquittal last month was not the only

politically sensitive case in which Zimbabwean courts ruled

against the GOZ recently —

 

— Nkala Case Dismissed: High Court Judge Sandra Mungwira on

August 5 dismissed all charges against MDC MP Fletcher

Dulini Ncube and five other MDC activists charged in the

murder of ruling party activist Cain Nkala. The dismissal

concludes a trial that lasted nearly three years and

involved a “trial within a trial” (ref E) in which police

confessions were found to have been coerced. The exonerated

defendants indicated they may sue the GOZ over their

treatment in prison.

 

— Defamation Damages Against Minister: In July, the High

Court ordered Information Minister Jonathan Moyo to pay

Z$2.5 million (US$450) damages for defamation to the

Associated Newspapers of Zimbabwe, the publisher of the

shuttered Daily News. The damage award, which related to

defamatory statements made by Moyo and Deketeke (alleged to

be the author of the weekly, vicious pseudonymous Nathaniel

Manheru columns) against staff members of the Daily News

(TDN), was just the latest in a string of TDN-related

decisions against the GOZ.

 

Cases Against the Government

—————————-

 

3. (SBU) The courts are entertaining other politically

significant cases that put the GOZ and the ruling party

under pressure —

 

— Wrongful Death Claim Against Minister: Minister Without

Portfolio in the President’s Office (and former Minister of

Youth Development, Gender and Employment Creation) Elliot

Manyika faces a wrongful death claim of Z$135 million

(US$22,000) filed by the survivors of a murdered MDC

activist. Manyika allegedly shot two activists during the

Zengeza parliamentary by-election campaign (ref D).

Plaintiffs’ attorney told us that Manyika would have been

prosecuted but for the personal intervention of Police

Commissioner Chihuri. The attorney told us that the

Minister invited Gunzvezve and the family of Chinozvina to

meet with him for an out of court settlement but no

agreement had been reached. A trial date has yet to be set.

 

— Bennet Appeals: MDC MP Roy Bennet is pursuing two court

appeals of his parliamentary “conviction” for pushing down

the Minister of Justice. A constitutional appeal is before

the Supreme Court after being dismissed by the High Court

while an appeal revolving around principles of natural

justice is still before the High Court. Conclusive rulings

are not expected in either action soon and Bennet continues

to serve his sentence “with labor” under arduous conditions.

(Note: MDC MP and Shadow Minister for Justice David Coltart

told us that the party was seeking advocacy on Bennet’s

behalf by the Inter-Parliamentary Union and sitting

counterparts in other legislatures, including the U.S.

Congress.)

 

— Election Challenges Drag On: None of the 38 election

petitions originally filed in the High Court contesting

outcomes of the 2000 parliamentary elections has been

finally resolved to date. In a typical example, the Supreme

Court on November 5 reserved judgment in the election

petition of the Minister of State for Science and

Technology, Olivia Muchena, who had appealed a High Court

nullification of her election as MP for Mutoko South. Last

month, the Supreme Court reportedly dismissed the appeals of

ruling party MPs Elleck Mkandla and Jaison Machaya against

High Court rulings in favor of MDC challengers in January

2003. Nonetheless, the ruling party MPs are seeking

reinstatement of the appeals and the Speaker of the

Parliament has yet to act on MDC demands that the seats be

declared vacant. (Note: In response to the courts’ failure

to resolve these cases, Zimbabwe Lawyers for Human Rights

filed an action with the African Commission for Human Rights

in Dakar, arguing that the inaction violated the African

Charter. The action, which was filed in August, awaits a

GOZ response.)

 

Resettled Farmers In Court: Attorney contacts told us that

they are increasingly involved in litigation on behalf of

resettled farmers in disputes with their neighbors. In

several cases, the courts have been granting “A1” farmers

(people resettled under small-holder schemes) favorable

orders allowing them to remain on their land in the face of

attempts by party stalwarts to evict them. Courts have

issued preliminary orders enjoining authorities from

preventing the return of settlers burned out of their homes

by authorities last month (ref C). The lawyers advise us

that some, though not all, of the settlers have returned.

 

Tsvangirai Acquittal to be Appealed?

 

SIPDIS

————————————

 

4. (SBU) Meanwhile, the GOZ gives every indication that it

will continue its use of the courts to harass its critics

and the opposition. According to the October 31 edition of

the state-owned newspaper “the Herald”, acting attorney

general Bharat Patel said that the GOZ intended to appeal

against the judgment in the Tsvangirai treason trial. Patel

was quoted as saying that the appeal would be filed to the

Supreme Court by mid November. Tsvangirai’s attorneys,

however, have not yet received any information from the

state concerning its intentions to appeal. On November 3,

Tsvangirai appeared before a local magistrate, who set a

 

SIPDIS

hearing for January 13 on the second treason charge, which

concerned Tsvangirai’s statements associated with mass

demonstrations. According to MDC sources, the January

hearing may involve the setting of bail and possible seizure

again of Tsvangirai’s passport, although the case is

reportedly even weaker than the first charge.

 

Courts Under Pressure .

———————–

 

5. (SBU) Often viewed as subservient to the executive

branch, Zimbabwe’s judiciary still contains elements capable

of rendering significant judgments against the government.

On its face, for example, Mungwira’s judgment in the Nkala

murder trial not only strengthens the position of judges but

also that of victims of unlawful arrests. The TDN

defamation holding is just the latest in a series of

decisions supporting freedom of the press. Dismissal of the

ruling party election appeals likewise follows a line of

rulings against the GOZ in election contests. If given

effect, such judgments could have had far reaching

implications for the future conduct of the police, the

country’s media, and GOZ election administration. Until

executive-controlled institutions like the police and Media

and Information Commission show willingness to implement

such decisions, however, such cases offer little more than

rhetorical fodder for regime critics – largely Pyrrhic

victories.

 

6. (SBU) Minister Manyika’s situation is symptomatic of

deficiencies in both the court system and the election

environment. His interest in settlement is interesting;

according to Zimbabwean culture if a person causes the death

of an individual he/she must seek forgiveness from the

aggrieved family by paying a token sum as reparation

(kuripa). Failure to do so may result in a curse being

imposed upon that individual and his/her family (ngozi).

Perhaps more significantly, the offer may reflect his

personal and ruling party interest in resolving the matter

away from the glare of public spotlight, especially in view

of regional scrutiny invited by the GOZ for upcoming

elections. Essentially the ruling party’s publicly

prominent national campaign manager several months ago,

Manyika’s star appears to be waning of late.

 

7. (SBU) There remains an element of fear within the

judiciary. The example of former Judge President of the

Administrative Court Justice Michael Majuru is illustrative:

he publicly gave a detailed account from South Africa

earlier this year about his forced resignation and exile to

South Africa after constant harassment from ruling party

supporters and direct pressure from the Minister of Justice

in connection with the controversial Daily News case.

 

8. (SBU) Economic pressure on the largely underpaid bench is

an additional factor. Instruments setting out the terms

under which judges take property under land reform, for

example, reportedly have clauses giving the state

unconditional authority to reclaim the property. According

to a former president of the Law Society, all but five

judges on the Supreme Court and High Court have received

farms under land reform. Interestingly, the state media

earlier this month fingered Judge Garwe, who rendered the

surprise Tsvangirai acquittal, as having failed to sell the

grain from his farm to the Grain Marketing Board as required

– a precursor, perhaps, to his farm being reclaimed by the

state.

 

9. (SBU) Executive branch pressure and harassment only

compound the myriad challenges imposed on the judiciary by

the economy’s collapse. Emigration takes a toll, as many

jurists find their skills in demand in neighboring countries

with similar legal systems. Declining real budgets are

sapping the judicial system’s infrastructure. Once

impressive courtrooms and offices are dilapidated, libraries

are depleted and obsolete, and backlogs are growing as

resource constraints have delayed plans to computerize

indefinitely.

 

. But Still Commanding Respect

——————————

 

10. (SBU) Long delays are becoming the norm in politically

sensitive cases here. Nonetheless, as the court’s ever-

growing workload attests, Zimbabweans of all political

stripes continue to view the courts as a resort of some

value. Rule of law remains important to Zimbabweans, a fact

not lost on a GOZ that goes to great lengths publicly to

legitimize its actions legalistically, even as it ignores

selected judicial pronouncements. Local newspapers often

read like a court docket, with innumerable reports on

criminal and civil cases involving prominent political and

business figures. Reports of conclusive disposition of any

cases, however, seem rare.

 

11. (SBU) Although it remains unclear whether or not the

judgment in Tsvangirai’s treason trial was a political one,

Garwe’s judgment has further bolstered the faith of many in

Zimbabwe’s judiciary. Notwithstanding the likely political

and economic pressure he was under, he ruled even-handedly

throughout the trial, castigated the state’s key witness Ari

Ben Menashe repeatedly, and delivered a judgment that most

local attorneys characterized as sound.

 

12. (SBU) In spite of deteriorating conditions and numerous

constraints, the judiciary retains a strong measure of

public respect. An August 2004 survey conducted in Zimbabwe

by the Mass Public Opinion Institute and Michigan State

University disclosed that 64 percent of respondents had “a

very great deal/a lot of trust” in the courts – the highest

level of trust among 12 national institutions/offices.

Indeed, the judicial system’s residual talent, integrity,

and courage – and the trust it still engenders – will be

important in sustaining Zimbabweans’ hope for the future and

could be an important foundation to support national

recovery should political conditions improve.

 

DELL

(12 VIEWS)

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Charles Rukuni
The Insider is a political and business bulletin about Zimbabwe, edited by Charles Rukuni. Founded in 1990, it was a printed 12-page subscription only newsletter until 2003 when Zimbabwe's hyper-inflation made it impossible to continue printing.

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