Cablegate: The Supreme Court Strikes Down Loma Sections That

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FM AMEMBASSY HARARE
TO SECSTATE WASHDC 6127
INFO AMEMBASSY GABORONE
AMEMBASSY LILONGWE
AMEMBASSY LUSAKA
AMEMBASSY MAPUTO
AMEMBASSY PRETORIA
AMEMBASSY WINDHOEK
AMEMBASSY LONDON
AMEMBASSY PARIS

UNCLAS HARARE 002763

SIPDIS

LONDON FOR PFLAUMER

PARIS FOR BISA WILLIAMS

E.O. 12958: N/A
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SUBJECT: THE SUPREME COURT STRIKES DOWN LOMA SECTIONS THAT
INTERFERE WITH FREE SPEECH

REF: HARARE 01174

1. ON MAY 22, THE ZIMBABWE SUPREME COURT RULED IN FAVOR OF
THE INDEPENDENTLY OWNED "THE STANDARD NEWSPAPER" EDITOR,
MARK CHAVUNDUKA, AND CHIEF REPORTER, RAY CHOTO, WHO
CHALLENGED THE CONSTITUTIONALITY OF SECTION 50(2) OF THE
LAW AND ORDER MAINTENANCE ACT (LOMA)(REFTEL). THE COURT
FOUND THAT THE LOMA SECTION 50, WHICH MAKES IT A CRIME TO
WRITE "FALSE STATEMENTS THAT ARE LIKELY TO CAUSE FEAR AND,
ALARM AND DESPONDENCY AMONG THE PUBLIC" CONTRAVENED SECTION
20(1) OF THE CONSTITUTION, WHICH PROVIDES FOR FREEDOM OF
EXPRESSION. THE SUPREME COURT DECISION WILL NOW RESULT IN
ALL CHARGES AGAINST THE TWO JOURNALISTS UNDER THE LOMA
BEING DROPPED IN THE MAGISTRATES COURT. THE TWO
JOURNALISTS WERE CHARGED UNDER THE LOMA IN JANUARY 1999,
AFTER PUBLISHING A STORY IN THE STANDARD REPORTING THAT THE
GOVERNMENT HAD FOILED A "COUP" ATTEMPT. THEY WERE ARRESTED
BY THE POLICE AND CREDIBLY ALLEGED THAT THEY WERE TORTURED
BY THE MILITARY DURING THEIR DETENTION. THE NEWSMEN WERE
OUT ON BAIL AND HAD FACED A SEVEN-YEAR JAIL SENTENCE IF
THEY HAD BEEN CONVICTED.

2. THE JUDGMENT ISSUED BY CHIEF JUSTICE ANTHONY GUBBAY HELD
THAT SECTION 50(2) OF THE LOMA WAS UNCONSTITUTIONAL, AS IT
LIMITED FREEDOM OF EXPRESSION ESPECIALLY THAT OF THE PRESS.
THE COURT FOUND THAT SECTION 50 (2) WAS VAGUE AND
OPPRESSIVE AND LEFT IT TO THE GOVERNMENT TO REWRITE THE
UNCLASSIFIED

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SECTION.

3. COMMENT: THIS IS ONLY THE SECOND TIME IN THE POST-
INDEPENDENCE ZIMBABWE THAT A SECTION OF THE LOMA HAS BEEN
FOUND UNCONSTITUTIONAL. THIS IS A MAJOR VICTORY FOR
OPPOSITION PARTIES WHO HAVE BEEN TRYING TO HAVE THE LOMA
STRICKEN FROM THE LEGAL BOOKS. HOWEVER, OTHER SECTIONS OF
THE LOMA REMAIN IN FORCE AND HAVE RECENTLY BEEN INVOKED BY
THE MINISTER OF HOME AFFAIRS, DUMISO DABENGWA, WHO CITED
THE ESCALATING POLITICAL VIOLENCE IN FACE OF THE SCHEDULED
GENERAL ELECTIONS ON JUNE 24 AND 25. END COMMENT.

MCDONALD#

UNCLASSIFIED

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