Cablegate: Police Stymie Court Judgment for Daily News

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

271424Z Oct 03

UNCLAS SECTION 01 OF 02 HARARE 002132

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER
LONDON FOR C. GURNEY
PARIS FOR C. NEARY
NAIROBI FOR T. PFLAUMER

SENSITIVE

E.O. 12958: N/A
TAGS: PHUM SOCI PGOV KPAO KMDR ZI
SUBJECT: POLICE STYMIE COURT JUDGMENT FOR DAILY NEWS

REF: (A) HARARE 1997 (B) HARARE 1943 and previous

SENSITIVE BUT UNCLASSIFIED. NOT FOR INTERNET POSTING.
PROTECT ACCORDINGLY.

1. (SBU) SUMMARY: Following a ruling by the Administrative
Court in its favor October 24, The Daily News (TDN)
published a truncated October 25 issue before a police raid
closed the offices of parent Associated Newspapers of
Zimbabwe (ANZ) later that day. The Media and Information
Commission (MIC) will appeal the court's judgment, which
ordered it to be recomposed and to issue a certificate of
registration to ANZ by November 30. The judgment did not by
its terms authorize immediate resumption of operations by
ANZ and certain factions within the Government are expected
to resist renewed publication even after November 30. END
SUMMARY.

2. (U) Justice Michael Majuru, President of Zimbabwe's
Administrative Court, on October 24 ruled in favor of the
ANZ, publishers of TDN and "The Daily News on Sunday"
(TDNS), after hearing ANZ's appeal of the state-appointed
Media and Information Commission's (MIC) refusal to grant it
an operating license. The court found for ANZ on all three
grounds elaborated in its appeal: that the MIC was
improperly constituted, that it acted outside its statutory
authority, and that it was unduly biased. It ordered that
the MIC be reconstituted in accordance with the terms of
AIPPA and that, upon its reconstitution, it grant ANZ an
operating license by November 30. If the MIC failed to
comply by this date, ANZ would be deemed registered and
could start its operations immediately.

3. (U) Immediately after the judgment was rendered, TDN
printed an eight-page October 25 edition headlining "We're
Back!" on the front page and reporting on various other
news. The paper printed 100,000 copies that quickly sold
out.

4. (SBU) Armed police raided and shut down ANZ's offices
during the middle of the day on October 25. They arrested
18 journalists and other employees working on what would
have been the October 26 edition of TDNS. Police in
Bulawayo on October 26 also arrested Washington Sansole, a
retired High Court judge and ANZ Board member. He is being
held on charges of "publishing without a license." Police
in Harare also arrested Tuleto Nkomo, the niece of the ANZ
Chief Executive Officer Samuel Nkomo (and niece of ruling
party Chairman John Nkomo), who was the only Nkomo present
when they visited Nkomo's residence on October 25. The 30-
year old niece had no working association with ANZ.

5. (SBU) As of the afternoon on October 27, police had
released the journalists without charging them. Police
charged the niece under the colonial-era Miscellaneous
Offences Act and released her after payment of a ZD 10,000
(USD 2) fine. Of ANZ's nine directors, five in Harare had
reported to police and were resisting efforts to have them
incarcerated on unspecified charges. Sansole made an urgent
application to the High Court in Bulawayo for immediate
release pending arraignment. The rest of the directors
reside outside the country. Armed police have sealed ANZ
facilities.

6. (SBU) ANZ lawyers and officials are adamant that
publishing the October 25 edition was lawful since the
ruling rendered some of the media regulations under the
controversial Access to Information and Protection of
Privacy Act (AIPPA) invalid. Bolstering their confidence
was the fact that the MIC's improper constitution meant that
every registration it issued was technically void, rendering
all related publications "outlaws," not just the ANZ's. In
the view of government lawyers, however, the ANZ jumped the
gun and was in contempt of court. To drive its case home,
the MIC has said it will appeal the ruling, declaring that
"the court has misdirected itself in ways that are not just
fundamental but also unprecedented." Legal sources quoted
by the government-controlled press predicted a drawn out
legal case that could drag on for several months while ANZ
remains unproductive.

7. (SBU) COMMENT: The Administrative Court's judgment
represents yet another Pyrrhic victory for the embattled
ANZ. Hoping to avoid having the case bounced back to it
after a near-certain future MIC determination against ANZ,
the court took the rare step of not simply remanding the
case for reconsideration but -- on the ground of clear bias
-- instructing the Commission to issue the certificate of
registration. ANZ's decision to resume publication before
receiving the ordered certificate may be second-guessed but
we see no indication that the government will be any more
likely to permit publication even after November 30, the
date by which the court commanded its registration. Appeal
from the Administrative Court's decision lies with the
Supreme Court, which already has found once against ANZ in
the decision that served as pretext for the paper's initial
shutdown last month.

8. (SBU) COMMENT (CONT'D): Behind the scenes, significant
elements within ZANU-PF quietly want to see ANZ operations
resume as soon as possible -- in part to counter the
dominant influence of Information Minister Jonathon Moyo, to
whose confidence and authority this latest swift police
action bears testimony. That the unpopular Moyo continues
to wield as much power as he does is symptomatic of a
dysfunctional policy-making environment within the ruling
party and the pernicious power of those who enjoy Mugabe's
favor, as Moyo apparently does.

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