The ZIMBABWE Situation Our thoughts and prayers are with Zimbabwe
- may peace, truth and justice prevail.

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Friday, 6 July, 2001, 11:49 GMT 12:49 UK
Zimbabwe targets all white farms
Farm invaders
Zimbabwe's farm invasions have hit food production
Agricultural officials say that almost all of Zimbabwe's white-owned farms have now been listed for take-over by the government, following the addition of another 529 farms on Friday.

This comes just a day after Finance Minister Simba Makoni admitted that Zimbabwe is running out of food and needs foreign aid to help it to buy grain from abroad.

The officials told AFP news agency on condition of anonymity that nearly all the 6,000 white-owned farms in Zimbabwe have been earmarked for resettlement.

Robert Mugabe has previously said that only half of the 12 million hectares of white-owned land would be seized.

Experts, donors and the opposition have repeatedly predicted that such a radical programme of land reform would slash Zimbabwe's food production - a warning dismissed by the government.

Bread in Harare
Prices of staples like bread have soared
Officials say that 104,000 black families have been resettled on 3.5 million hectares of land in the past year however many complain that they have been "dumped" with no government aid.

Zimbabwe is facing its worst economic crisis since independence from Britain 21 years ago.

A chronic lack of foreign currency has led to a shortage of fuel and other essential imports.

Dried up

United Nations experts say that Zimbabwe will need to buy up to 600,000 tonnes of cereals.

Foreign aid to Zimbabwe has largely dried up because of concerns about human rights and the actions of President Robert Mugabe against his political opponents.

Around 40 opposition activists and white farmers have been killed in political violence in the past 15 months.

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JOHANNESBURG, 5 July (IRIN) - Zimbabweans should brace themselves for
another round of massive price increases before the end of this year as
the twin effects of disruptions to farm activities and the necessity to
import huge quantities of the staple maize and wheat started to take their
toll on the tottering economy, the weekly ‘Financial Gazette reported on
Thursday. The government planned to import 570,000 mts of maize and
100,000 mts of wheat this year at a total cost of over 6.6 billion
Zimbabwe dollars, the report said. The government itself, according to an
AP report, had begun asking donors for aid to make up for looming food

The ‘Financial Gazette’ speculated that expenditure on food imports could
be much higher than the $6.6 billion because of the foreign currency
crisis which had spawned a thriving parallel market for hard cash in the
country. Rates on the black market were as high as 190 Zimbabwe dollars
for US $1, while dealers on the formal inter-bank market traded at a
mid-rate of 55 Zimbabwe dollars to US $1. Analysts told the newspaper the
unbudgeted spending on food imports would significantly push up the
government’s total expenditure during this calendar and fiscal year and
would impact negatively on Zimbabwe’s overall macroeconomic environment.
The Treasury had not anticipated food shortfalls.

Kingdom Financial Holdings economist Howard Sithole was quoted saying the
government had two options, one of which would be to pass on the extra
expenditure on the maize and wheat imports to the consumer. “The other
option available to them would be to subsidise the prices of mealie-meal
and other foodstuffs like bread and flour,” Sithole said. But he added
that subsidies were not a feasible option because of the cash crisis faced
by the government and the domino effect a subsidy would have on the rest
of the economy.  The analysts spoke as the government proposed legislation
this week to reintroduce the state-run Grain Marketing Board’s (GMB)
monopoly on maize marketing. The proposed legislation would see the GMB
being the sole buyer and seller of the staple maize for an unspecified
number of months.
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JOHANNESBURG, 5 July (IRIN) - Two farming experts said this week that farm
workers and their families would emerge the biggest losers if the
government pressed ahead with its planned land seizures. Godfrey
Magaramo-mbe, director of the Zimbabwe Farm Community Trust (ZFCT) - a
non-governmental body which works to improve the conditions of farm
workers in Zimbabwe - and Ewan Roger of the Agriculture Labour Bureau,
noted that very few farm workers had been considered for resettlement
under the present fast-track exercise, the ‘Financial Gazette reported on

About 40 000 farm workers had already lost their jobs after self-styled
mobs of war veterans seized commercial farms last year and halted
production in many of them, the report said. “The government is not
including the farm workers in the resettlement scheme and some workers
already displaced by these disturbances are already creating illegal
settlements on the fringes of the commercial farms,” Roger was quoted
saying. The government said last week it had targeted another 1,000
large-scale commercial farms for compulsory acquisition. Although it had
listed more than 2,000 farms for seizure, the Commercial Farmers’ Union
(CFU) said only 1, 000 farms were new listings. The CFU sad the new
listings brought to 5,000 the number of properties listed for compulsory
acquisition under the Land Acquisition Act and represented eight million
hectares of all fertile land in Zimbabwe.

According to the report, although top CFU executives refused to be
interviewed on record this week, industry experts said the mainstream
commercial farming community would be left with only 800 farms if the
government proceeded to seize all the farms listed last week. Until now
the CFU had a membership of 3,600 farmers who shared 5,800 large-scale
farms employing 350,000 registered farm workers, the report said.
Magaramombe was quoted saying that apart from the 40,000 farm workers who
had already lost their jobs, he fully supported CFU estimates that 300,000
more would lose their jobs by the middle of next year if the government
proceeded with the acquisitions advertised last week.

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Farm Invasions and Security Report
Thursday 5th July 2001
Every attempt is made to provide a comprehensive report of ongoing activities in relation to farm invasions, but many incidents are unreported due to communications constraints, fear of reprisals and a general weariness on the part of farmers.  Farmers names and in some cases, farm names, are omitted to minimise the risk of reprisal.
Police responded well to a forced eviction of an elderly couple from a homestead in the Victory Block area.  In conjunction with neighbours and farm workers, their occupancy has been restored.  5 arrests were made.
NRB officers are seeking to impose fines on farms in the Mashonaland Central Region, who have residual tobacco plants in fields where they have been prevented from "ploughing in".
The increase in disruptions of seasonal on-farm tasks is being sustained; accompanied by threats to vacate farms and homes; to remove cattle, to stop irrigating etc.
The illegal sale of plots by war vet leaders continues in Marondera South.
The illegal occupiers of Beatrice Club have agreed to vacate the now disfigured premises.
There were no reports received from Matabeleland Region.
Mashonaland Central
Centenary - Pegging of farms continues and a number of farms have been reinvaded. DDF are ploughing and drilling boreholes on 2 farms.
Victory Block - At Rusumbi Farm, illegal occupiers broke into the owner's elderly parents' home and temporarily evicted them. The community responded with police and 5 of the instigators were arrested. Farm workers assisted by moving furniture back into the home and a police presence was left at the farm. The owner of Msitwi River Ranch  was confronted by illegal occupiers armed with axes and sticks who instructed him to discontinue any further work on the farm.
Mvurwi - Mr Maguti, DA, 2 policemen and about 40 illegal occupiers visited Chidziwa farm and informed the owner that they were resettling the farm. The following week, Stephen Nyarora, Mr Mavunga, Mr Kaseke, teachers from Whaddon Chase School and several illegal occupiers informed the owner to stop all work on the farm as the land now belonged to them. A skeleton hut was erected at the entrance of the farm and illegal occupiers left. Work operations on the farm have continued.  A Natural Resources Board Representative has been active in the area and fined the owner of Hariana who was prevented by illegal occupiers from destroying regrowth. 
Tsatsi - Illegal occupiers continue to prevent normal farming operations, make outrageous demands accompanied by threats, move livestock around the area, chop wood indiscriminately and poach wildlife. In many cases Police have responded poorly due to the problem being a "political" one.
Mutepatepa - About 80 illegal occupiers gathered outside the security fence at  Solomio in response to Agritex Officials' refusal to proceed with pegging the farm. Police and war vet leaders defused the situation, but illegal occupiers refuse to allow any work aside from tending the current wheat crop and tobacco grading. A work stoppage occurred at Frinton and police responded.
Mashonaland West North
Chinhoyi - Hillpass Farm has been fast tracked. Illegal occupiers on Finnlands Farm are trying to extort money from the owner and issued death threats to the family. Illegal occupiers are chopping down gum trees on Magog Farm. Police refuse to react.
Mhangura - The MIC Mhangura, told the owner of Cotswold Farm not to reap his maize as it belonged to illegal occupiers. Government valuators visited Long Valley Farm.
Mashonaland West South
General - Maize theft, poaching and snaring of wildlife is prevalent in the area. Timber is being cut for re-sale in Chegutu and Kadoma towns. Police are looking into the matter.
Chegutu - Agritex have removed the owners steel fence standards to peg plots on Torduff Farm. The owner removed the standards and put them back on the fence. The DA Chegutu requested the owner be arrested for removing Agritex pegs. No arrest has been made.
Kadoma - An altercation between farm workers and illegal occupiers on Milverton Estates, resulted in illegal occupiers beating 9 farm workers wives and children. Police were notified. Illegal occupiers are pegging on cultivated lands and near farm owners' homesteads.  Agritex are pegging on Hellaby and Alabama Farms and told the owner of Hellaby to stop his tractors working as they will be pegging in the middle of prepared lands.
Chakari - On Rondor, illegal occupiers have pegged in a cattle paddock and told the owner not to move his cattle in there. Police reacted.
Mashonaland East
Wedza - An illegal occupiers who is also a special constable, was arrested for killing a weaner on Poltimore. DDF are ploughing on Finevara section. Illegal occupiers are pegging on Dudley. Illegal occupiers herded cattle on Markwe into a field of oats, complaining that they had eaten their thatching grass, clothes and maze meal. The owner of Mbima was prevented from laying irrigation pipes by illegal occupiers. War vet Chigwedere demanded that the owner pay $6500 for huts illegal occupiers had built using stolen timber. The demand was rejected. 11 head of cattle are missing on Hele. Roofing stolen by illegal occupiers on Collace has been recovered. Cattle dipping has been ceased and 23 head of cattle are missing. Illegal occupiers are demanding that the owner vacate the farm as it now belongs to them. Farm security guards were threatened by illegal occupiers. Agritex are pegging on Chard. 200 gum trees have been cut down and the wood stolen by illegal occupiers on Hull. Agritex has commenced pegging on Fels. A dispute between illegal occupiers occurred on Farm Alpha, and was resolved when money paid for plots was returned. War vet Isaac, currently residing on Ruware, pegged a maize land on Markwe. A support unit vehicle drove through the farm fence and dropped off 8 illegal occupiers. Poaching continues on Liliefontein. Illegal occupiers lit 2 fires on Southlawn when they drove past the farm. Under the DA's instructions, illegal occupiers are pegging on Leap Year. A large section of fence was stolen on Emma. A work stoppage has occurred on Plymtree. Agritex have cut a boundary fence on Rapaka to enable access for their vehicles.  The owner of Igugu was told by illegal occupiers to discharge all farm workers. Tobacco grading and paprika work has been stopped. 30 head of cattle were driven off Leap Farm by illegal occupiers. Farm workers were threatened by war vet Chigwedere on Repaka, if they continued laying irrigation piping.
Marondera - Illegal occupier Isaac Majuru demanded the removal of cattle and thatch cutters on Monora and ordered the cattle farm worker to vacate his home. DDF have pegged the whole of Wenimbe and further land preparation has been stopped.
Marondera North - Work stoppages on Chapungu, Dormervale and Cambridge  continue. Further work stoppages are occurring on Mtukwa, Dorset, Warwick and Norfolk.
Marondera (South) - A number of farms continue to experience work stoppages. About 60 aggressive illegal occupiers visited the owner of Chipesa and issued death threats. 25 ha of prepared land has been pegged by Agritex. Illegal occupiers Masimbi and Majuru are responsible for many work stoppages and widespread illegal sale of plots on farms in the district.
Macheke / Virginia - Illegal occupiers demanded that a family member of the owner of Glen Somerset and a garden worker vacate the farm. About 200 illegal occupiers from Nyazuma village moved onto Malda to claim their plots. About 30 illegal occupiers from Murehwa arrived on Mazuri looking for accommodation. A government drilling team arrived on Welcome Home and pitched their tents. UMP District and DA Mapfuma arrived on Linden and left the illegal occupiers chairman Ernest Mashonga to assist Agritex with pegging the farm.  There has been an upsurge of hut building by illegal occupiers on Mignon farm. Wood and irrigation equipment is being stolen and police refuse to react. Illegal occupiers are building huts and chopping wood from commercial gum plantations on Marylands, Lamjung and Nyagadzi. Police were notified. More fencing has been stolen by illegal occupiers on Klipspringer Kop. 3 people were arrested on Nyagadzi for stealing tobacco. Pegging continues on Royal Visit. The work stoppage on Riverside continues. The situation became tense and the owners family were vacated. Illegal occupiers allowed the owner to remain on the farm. Extensive ploughing by illegal occupiers is occurring on Castledene Pines. Section 5 orders are being widely distributed.
Beatrice - Illegal occupiers agreed to vacate the Beatrice Club after a meeting with the provincial party leadership.
Bromley / Ruwa / Enterprise - Section 5 orders are being re-issued in Enterprise and Goromonzi.
Featherstone - About 30 illegal occupiers accused American guests and a professional hunter of being foreign journalists on Palestine, and that they must vacate the farm.
Harare South - Illegal occupiers on Witham Estates stopped farm workers from cutting wood. DDF are pegging on Walmer Farm. War vet Nkomo told the manager of Amalinda Estates to stop tobacco cropping, but allowed dairy and flower operations to continue. About 30 tonnes of wood a day is being stolen. Marimba police refuse to react. 12 illegal occupiers moved onto Walmer. When illegal occupiers were asked for their I.D's and names they became aggressive and left. 15 aggressive illegal occupiers marched round Amalinda farm with axes and pangas and axed a 6 inch irrigation main line. DDF tractors continue to plough on Swallowfield which has caused extensive damage to the drip irrigation scheme. Illegal occupiers threatened farm workers saying they would return to beat them.
Mutare - The owner of Cynara Farm and his assistant were assaulted and manhandled.
Headlands - There is a complete work stoppage on Woodlands Farm.
Chipinge - Illegal occupiers on Avontuur Farm broke a fence, resulting in a sheep escaping and being about a meter in the proximity of illegal occupiers rape, which they are claiming $20,000 compensation. Police reacted and resolved the matter. The owner of Grassflats Farm was prevented by illegal occupiers from cutting grass for mulching and given 2 weeks to remove cattle off the farm.
Nyazura - DDF tractors moved onto Drene Farm to plough.
General - Few cattle have been moved back from the green zone to the red zone, in Mwenezi, after police informed illegal occupiers to do so.
Mwenezi - The owner of Marikanga Ranch was attacked by about 40 illegal occupiers, who kidnapped 4 farm workers, including a 60 year old man. Farm workers were severely beaten, as were the abducted 4 who were held for 24 hours and subjected to political interrogation. Chikombedzi Police reacted, but failed to make arrests pending orders from Chiredzi Dispol. No further action has been taken 4 days later.  Illegal occupiers pegged on Wentzelhof Ranch. The owner of Rutenga Ranch is lifting snares planted by illegal occupiers, on a daily basis. The local police and DA refuse to respond. Illegal occupiers are ignoring any instructions issued by the Provincial Land Committee.
Chiredzi - Telephone copper wire is being stolen by illegal occupiers and being used to make snares on Samba Ranch.
Gutu / Chatsworth - Cattle on Wheatlands Farm were herded by illegal occupiers onto a neighbouring farm. The owners daughter went to report the incident to the DA and whilst in the office, picked up a file on the receptionists desk. The receptionist accused the owner's daughter of assault and the owner's daughter was escorted out of the office. The DA and MIC later visited the owner to resolve the situation. Illegal occupiers on Felixburg Farm prevented the owner from loading 3 truckloads of cattle. The dispersed cattle are now being chased by illegal occupiers into the owners homestead security fence. Illegal occupiers on Battlefields Ranch want access to a homestead on the farm, belonging to the owner's son, so they can turn it into a beer hall.
Save Conservancy - The situation remains unchanged.
General - In most areas, there is nothing of an unusual nature to report. Illegal occupations and related problems continue.
Kwe Kwe - Fast track pegging and surveying of cropping blocks on recently designated farms is being carried out. Poaching, stock theft, gold panning and general crime is rampant.
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Zim unions show their mettle

The labour movement begins its campaign against Robert Mugabe's re-election



imbabwe’s trade unions delivered a stinging rebuke to President Robert Mugabe’s government on Tuesday by launching a two-day national strike that stopped virtually all industry and 80% of commerce.

The Zimbabwe Congress of Trade Unions (ZCTU) called the strike in protest at the government’s recent 70% increase in fuel prices, which has caused transport and staple food prices to soar and is expected to raise the inflation rate from 60% to 100% this year.

It was the first public display of the labour movement’s dissatisfaction with Mugabe’s government since it backed the opposition party, the Movement for Democratic Change (MDC), in the parliamentary elections a year ago. It is widely seen as the beginning of the opposition to Mugabe’s campaign for re-election next April.

Factories were closed in Harare, Bulawayo, Mutare, Gweru and other cities. Banks and big shops shut and tobacco auctions were cancelled, causing an estimated loss of US$2,5-million.

The government, however, described the strike as a failure. The government-owned Zimbabwe Broadcasting Corporation described it as unsuccessful and the work of foreign agents. The state-controlled Herald newspaper said that thousands of workers had tried to go to their jobs but were locked out by white factory owners trying to sabotage the government.

There were no union-led rallies or marches, since workers were told to stay at home to prevent a violent reaction by the police or the army. But local residents reported that army units had beaten people in Chitungwiza, Budiriro and Dzivarasekwa, and on Tuesday three bread delivery lorries were burned in Budiriro. Three journalists photographing the incidents were arrested and charged with interfering with police operations.

“The strike is successful nationwide,” the ZCTU’s secretary general, Wellington Chibebe, said. “We are sending a strong message to government that the workers want better management of the economy.”

“Very few working families can afford three meals a day any longer — many cannot even afford two meals a day,” said Chibebe, explaining the growing anger. “Studies show that a family of four needs Z$14 000 [about R1 900] a month for food, rent and other expenses. Many of our workers are only earning Z$3 000 [about R400] a month. So you can see how desperate our workers are.

“They are angry at the government because it has failed in its responsibility for good economic management.” Zimbabwe’s unemployment rate is estimated at more than 50% and its gross domestic product has fallen for the past three years.

The MDC, which sprang from the labour movement in 1999 — its president, Morgan Tsvangirai, previously held Chibebe’s post — refrained from joining actively in the strike, to allow the ZTCU to rebuild its capacity for protest. The ZCTU claims to represent 90% of Zimbabwe’s workers, or about 2,1-million of its 12,5-million people.

The government has tried to neutralise it by supporting the rival Federation of Trade Unions (FTU), which is run by the war veterans’ leader, Joseph Chinotimba. Last week the FTU threatened several factory owners and workers with violence.

“We are striking for the betterment of our lives. We want change because we are hungry,” a waiter, Evans Mudzi, said. “We know the government wants the police to hit us, so we are staying in our homes. This strike is putting people in the right direction and that is towards voting for change in the presidential elections next year. Our best hope is in our ballot.”

Meanwhile Tsvangirai, who was in London this week, said that he had secured pledges from Britain, Europe and the United States to provide independent observers for next year’s presidential election, when he will stand against Mugabe.

With seven parliamentary by-elections pending, Tsvangirai is anxious for foreign monitors to be present in the coming months to prevent the intimidation of voters.

There were widespread complaints of fraud and violence during last year’s parliamentary elections. In the past week Tsvangirai has been received at the State Department in Washington, by the new British Foreign Secretary, Jack Straw, and by three European Union commissioners: Chris Patten, Neil Kinnock and Poul Nielsen.

“Whereas before people were prepared to listen to the MDC but regard it as a protest movement, now there’s acceptance of the MDC as a political party,” said Tsvangirai.

International pressure on Mugabe’s government is increasing. Last week the EU council of ministers gave it 60 days to restore the rule of law and end illegal farm occupations or face sanctions. The Commonwealth is sending a delegation. Mugabe has agreed to let the foreign ministers visit, but is trying to limit the scope of their study to the land problem.

In recent days his government has pressed ahead with land seizures, harassment of factory workers and restrictions on the press. It forced the British journalist David Blair, a correspondent for the Daily Telegraph, to leave the country. It has listed another 1 400 farms for seizure, bringing the total to nearly 5 000. Only 500 farms have not been designated.

Although Mugabe said recently that he would like to improve relations with the Commonwealth, and even with the British government, his recent action shows he is not willing to moderate his policies.

-- The Mail&Guardian, July 6, 2001

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Threat to Mugabe

Mail & Guardian (Johannesburg)

July 6, 2001
Posted to the web July 5, 2001

President Robert Mugabe's government declared this week's general strike called by Zimbabwe's trade unions illegal. That the vast majority of the country's 1,2-million employed workers bravely chose to ignore the ban suggests that it is Zanu-PF's choking grip on Zimbabwe that lacks legitimacy.

The intimidatory threats issued by the despised "war veterans", who have turned their attention in recent months from white-owned farms to factories and businesses, were also ignored.

Mugabe's thugs would no doubt like to provoke the sort of violence with which they have been associated in the past. And as before, the security forces have tried to prevent free and fair reporting. That very little violence has so far occurred is vastly to the credit of Zimbabwe's citizens, not to a government that is now in a virtual state of war with its own people.

Mugabe was right about one thing this week: this mass action is not just about the recent 70% rises in fuel prices, or the resulting inflationary impact on the cost of basic foodstuffs. It is not simply about an economy broken almost beyond repair, about schools without resources and hospitals without medicines.

Nor is it only about corruption in high places, about the assaults on an independent judiciary, about the government's contempt for the rule of law. Mugabe said the strike was, at heart, political. And he is correct. It represents an enormous challenge to his own continued tenure as president. And more than that, it challenges the power monopoly enjoyed by Zanu-PF since independence over 20 years ago.

If last year's general elections had been properly conducted, the ruling party might already be out of office. By his egregious conduct then and since, Mugabe has gone a long way to guaranteeing not only his own eventual downfall but also that of the movement he once honourably led in the battle against white minority rule.

At age 77, he cannot last forever. His neighbours know it. His smarter associates and Zimbabwe's many overseas friends know it. His people know it and would wish to be shot of him. Yet by clinging to power, against all reason, and trying to fiddle yet another term next year, Mugabe looks set to ensure that much that he painstakingly built up will be torn down with him.

A man who was one of Africa's most respected revolutionaries is now on the wrong, losing side of a popular revolution. The clock is ticking. It is a great pity he cannot hear it.

The untouchables

Some South African's are, indeed, more equal than others.

It seems that, if you manage to achieve a certain rank in the African National Congress or form part of its nomenklatura in government or industry, the chances of your being pursued for inept or improper behaviour are minimal. The rest of us would not merit such indulgence from our own families. But membership of the ANC aristocracy can evidently earn you a level of immunity that would be the envy of a fox in a hen house on the day the local farmer went to town.

As a member of the chosen, you can make a cock-up as manager of a state parastatal that costs the public hundreds of millions of rands -- yet escape censure. You can be a minister of evident incompetence and do-nothingness -- yet survive in the Cabinet. You can have participated in the kidnap of a young boy subsequently killed by thugs in your employ -- yet still be an ANC MP, president of the ANC Women's League and a member of the ruling party's highest organ between conferences, its national working committee. You can have been minister of defence during the drawing up of contracts for the largest arms deal in the country's history, resign and, within a few months, be reincarnated as a businessman, multimillionaire and major beneficiary of those self-same contracts -- yet escape even a public hint of disquiet from senior colleagues for ethically questionable behaviour. You can be the head of the nation's defence forces, of its air force, of the main national arms procurer or of Parliament's main defence committee, and have an expensive luxury vehicle made available to you at a very substantial discount by one of the successful bidders for contracts under the arms deal -- yet not be required even to resign your post.

On the other hand, you can be an honourable member of the ANC -- such as Andrew Feinstein MP clearly is -- and be isolated and threatened behind your back with expulsion from the party if you demonstrate a willingness to defend during meetings of Parliament's public accounts committee the principles of honesty and accountability to which your party continues to lay claim. The list goes on -- and on.

We on this newspaper have warned before that the ANC and this government are becoming synonymous in the eyes of many with sleaze and personal enrichment by their leading members. Our own and others' appeals for exemplary action against those who, on the face of it, are abusing the party's ethical principles or the standards of good state or corporate governance have had no effect on those with the power to act. The hostility and, sometimes, the f-u silence that has greeted these appeals demonstrates an arrogance at leadership level for which, we have no doubt, the party will at some time -- perhaps sooner than it thinks -- pay a heavy electoral price.

That alone should give the party leadership pause for thought, though we would prefer considerations of good governance and morality to be more persuasive.

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World News: West to provide monitors for Zimbabwe election

July 6, 2001 1:03am

Source: The Irish Times, July 05, 2001, Page 13


The Zimbabwean opposition leader, Mr Morgan Tsvangirai, said yesterday he had secured pledges from Britain, Europe and the US to provide independent observers for next year's presidential election, when he will stand against President Robert Mugabe.

With seven parliamentary by-elections pending, Mr Tsvangirai is anxious for foreign monitors to be present in the coming months to prevent the intimidation of voters.

There were widespread complaints of fraud and violence during last year's parliamentary elections.

The diplomatic offensive by the leader of the Movement for Democratic Change (MDC) has coincided with a two-day general strike by an estimated 3 million Zimbabweans in protest at the government's recent 70 per cent increase in fuel prices.

Speaking in London yesterday, Mr Tsvangirai repeatedly distanced the MDC from direct involvement in the strike, but commented: 'Increasing petrol prices [so much] has been suicidal.

'It's completely insensitive. If they are going to adjust the prices they should do it in a way people can still afford fuel.'

In the past week Mr Tsvangirai has been received at the State Department in Washington, by the new British Foreign Secretary, Mr Jack Straw, and by three EU commissioners: Mr Chris Patten, Mr Neil Kinnock and Mr Poul Nielsen.

'Whereas before people were prepared to listen to the MDC but regard it as a protest movement, now there's acceptance of the MDC as a political party,' said Mr Tsvangirai.

Late last month the EU set a two-month deadline for Mr Mugabe to end Zimbabwe's political violence and interference with the independence of the judiciary, and guarantee freedom of speech.

Industry and commerce remained largely closed on the second day of the national strike, which was called by the Zimbabwe Congress of Trade Unions as a protest against economic mismanagement.

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Mugabe, Muzenda clash

Dumisani Muleya
PRESIDENT Mugabe has cancelled the controversial US$40 million ($5 billion) project between the Posts and Telecommunications Corporation (PTC) and prominent businessman Delma Lupepe’s Zimbabwe Express (Zimex) company, it emerged yesterday.

Government sources said Mugabe cancelled the optic fibre telecommunications deal on Tuesday. It is understood he was annoyed by the project thought to have been authorised by his deputy Simon Muzenda.

The contract — initially signed on December 18 2000 and later revisited on June 6 — has triggered heated exchanges within the Ministry of Transport and Communications.

Minister Swithun Mo-mbeshora was understood to have clashed with PTC managers opposed to the deal. Sources said Mombeshora prevailed after Muzenda intervened on his behalf to “get things done”.

It has been alleged that Mombeshora received kickbacks for facilitating Lupepe’s project. Sources claimed that Lupepe financed the minister’s family holiday to Florida last December.

However, Mombeshora denied receiving any money from Lupepe. He said he was not even aware the deal had been cancelled.

“I’m not aware of that (revoking of the deal),” he said. “It was signed before I came to the ministry.”

Mombeshora said when he was appointed minister last July he found four deals on the table. Lupepe said his deal was approved in April last year and signed in November 2000.

Former Information minister Chen Chimutengwende was in charge when some of the contracts were signed.

Regarding the Florida holiday, Mombeshora said he went there on his own means.

“I went there using my own money,” he said. “Every year I go on holiday. I have been to Durban, Mauritius, London, and other places. I have got my own way of getting money.”

In an interview yesterday, Lupepe said he had not paid Mombeshora anything.

“I don’t have to pay people to invest. I don’t know how, where and when he goes for holidays,” he said. “I’m not into paying people.”

Lupepe also brushed aside suggestions that he was building a service station and access road for Muzenda in Gutu Growth Point.

Muzenda, who three years ago was mired in the controversial $2 billion ZBC pay-perview deal, chairs a cabinet committee on privatisation of state enterprises.

Efforts to get comment from Muzenda were unsuccessful. “He is committed until Monday,” his personal assistant said when contacted for comment.

Sources said the saga started in 1999 when the PTC wanted to revamp its antiquated telecommunications lines between Zimbabwe and South Africa. The parastatal wanted to install digital microwave dishes between Messina, South Africa’s gateway into Zimbabwe, Beitbridge, Masvingo, and Gweru to replace the analogue system currently in use.

The idea, sources said, was to improve efficiency along that route which carries 70% of

Zimbabwe’s international traffic to South Africa.

It is understood the PTC entered into an agreement with South Africa’s Telkom within the Sadc Regional Information Infrastructure (SRII) protocol to carry out the project.

Work on the PTC/Telkom project was said to be almost complete. Mugabe and President Thabo Mbeki of South Africa were expected to commission the project next month.

“Lupepe made a proposal for his optic fibre project last year after he heard of the PTC/Telkom project,” a source said. “He knew it was a lucrative deal and wanted to be involved but there was no way he could have been accommodated within the same project.”

Sources said PTC management gave Lupepe a “useless” optic fibre pro-ject between Bulawayo and Beitbridge after a lot of political pressure.

“It is a useless project because there is no traffic for him. Telkom has already agreed to direct all its traffic through the PTC system,” said a source.

Lupepe was given six months from December last year to finish his Bulawayo-Beitbridge project. However, the project failed to take off. Last month he went back to the PTC to renew it and obtained further deals.

“He was awarded the Plumtree/Bulawayo/ Gweru/Harare and the Mutare projects on top of Bulawayo/Beitbridge,” the source said.
“There was no tender and his company has not yet started work.”

Sources said Lupepe has not started work because he was waiting for funds from South Africans who wanted him to secure cellular telephony company Net*One for them. The investors want-ed a stake or outright purchase of the company.

But Lupepe said he has secured US$125 million ($16 billion) from US, UK, and South African investors for invest- ment in telecommunications.

It is understood that Lupepe had another project with PTC signed three years ago in which he made about $2 billion.

“His company, Bernard Construction, was digging trenches for lines and he was paid a lot of money,” another source said. “Now he wanted to go into a ‘post-digging’ project and make more money.”

Lupepe said he won his ongoing projects in Harare, Bulawayo and Mutare through a tender system. He denied making $2 billion, saying he only got $600 million.

On the allegation that he was being paid $5 million every week “just for digging”, Lupepe said that was untrue. He said he received $5 million every month from PTC as payment of a $120 million debt, which the parastatal once owed him.

Official sources said PTC consultants Price-WaterhouseCoopers were worried about these developments ahead of the parastatal’s privatisation in December.

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Sibangilizwe Ndlovu
THE famous English legal dictum that says “Be you ever so high, the law is above you” was given full application last week with the extradition of Slobodan Milosevic, the former Yugoslav strong-man, to the War Crimes Tribunal at The Hague.

The move to prosecute Milosevic several years after his indictment should send a chilling message to all dictators who have committed war crimes, crimes against humanity and genocide. Fear is without doubt gripping Zimbabwe’s State House as Robert Mugabe, our very own Balkan tyrant, begins to see that the arm of the law is long enough to reach even those in the highest positions of power.

Last week Milosevic was handed over to the tribunal, facing charges of planning and ordering a campaign of terror, persecution and violence against Kosovo Albanians at the end of the 1990s. There are also possibilities that charges against him will be extended to include crimes in Bosnia and Croatia.

The handover of Milosevic came after his arrest in Serbia on April 1 on charges of corruption, abuse of power and economic sabotage.

Had it not been the case that Zimbabwe’s constitution forbids the trial of presidents on both civil and criminal cases, such charges would without doubt be competent against Mugabe and his cronies who have crushed the country’s economy through corruption, greed and avarice.

An interesting discussion that has ensued since the handover of Milosevic has been whether Mugabe can also be prosecuted for war crimes, crimes against humanity and the genocide he committed in Matabeleland and the Midlands just after Independence.

Arguably, the same charges can be extended to include the recent murder of more than 35 opposition supporters during last year’s parliamentary election. The recent violence on the farms and persecution of racial minorities confirm the view that if avarice and political power are the lifeblood of tyranny and dictatorship, then genocide is the means by which it is secured.

Mugabe’s egregious violations of the 1949 Geneva Convention Against Torture in the persecution of journalists and political opponents, the 1965 Convention on the Elimination of all Forms of Racial Discrimination, his violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide with the Matabeleland atrocities in the 1980s — all justify the need for a virile campaign for his trial in an International Tribunal, pending the coming into force of the Rome Statute of the International Criminal Court adopted on July 17 1998.

Human rights activists have estimated that Mugabe butchered over 20 000 people in western Zimbabwe and the Midlands in his callous campaign for the creation of a one-party state. Interestingly, the pressure to extradite Milosevic intensified at a time when numerous mass graves were being exhumed in Belgrade and Nis with evidence of Albanians murdered during his brutal shelling of Kosovo before the timely intervention of Nato that brought the beginning of his downfall.

Similarly, mass graves have been found in Matabeleland as evidence of Mugabe’s atrocities after Independence, mainly in the Gwanda, Matobo and Bhalagwe areas as well as the human remains recently discovered in Old Hat Mine in Silobela in the Midlands.

Just as evidence is available to show the nocturnal transfer of dead bodies from Kosovo to Belgrade as a way of concealing evidence, eye witnesses have also testified in Zimbabwe that nocturnal departure of trucks from Bhalagwe to the mine shafts in Antelope and Kezi areas were seen regularly by survivors of that massacre.

In the same atrocities, evidence is awash of how security agents maimed, killed, raped and kidnapped civilians, exterminating their fetus, burning victims and burying them alive while forcing the survivors to eat the flesh of their dead, and a plethora of other evil and heinous deeds.

Just like Milosevic who rewarded a fellow war crimes monger with a ministerial position at the Defence ministry, Mugabe went ahead to reward Perence Shiri with the position of Air Force commander.

It is an uncontested fact that civilians suffered under the international crime of genocide and ethnic cleansing in the 1980s and civic organisations as well as affected groups would need to exert the appropriate pressure on the international community for the prosecution of Mugabe for these wrongs for which he has refused to apologise.

Concerted efforts are required to bring forensic investigators into the country to excavate all sites and come up with further evidence of the crimes committed as has been done in Bosnia and Serbia.

Indeed, mounting such legal steps would be difficult but not impossible to pursue for the families that have never been provided with any remedies for the Gukurahundi atrocities. It would be a lot easier to sue than would be the case in the domestic courts, as rules can be relaxed in the international trials to allow anonymous witnesses and secret testimony so that the defendants would not be able to identify those accusing them.

This is a relaxation that is already enforceable in the Hague Tribunal, and serves very well to encourage affected families to come forward with evidence without the fear of reprisal.

Arguments on sovereignty and other defences attributed to the principle of sovereignty of state decisions would not hold water in the International Tribunal. Recent acceptable reasoning in international law has been that the concept of state sovereignty has limits, as failure to recognise such limits would merely provide a veneer for dictators to wield unbridled power.

It is for the same reason that the Serbian authorities did not find it necessary to obtain prior approval from the current Yugoslav president for the extradition, nor could it have made any sense to wait for the outcome of the appeal to the constitutional court on the legality of his extradition.

In fact, with the inherently universal jurisdiction of international tribunals and the concerns they are created to address, the supremacy of their jurisdiction over those of national domestic courts may require an extradition even before the exhaustion of local remedies.

Considering that the consequences of genocide are clearly more ominous than any single domestic statutory law, the extradition of offenders like Milosevic and Mugabe should be every country’s concern in this century to show that no leader can ever be above the law.

The preservation of a peaceful global existence and maintenance of humanity’s sacred values of civilisation requires the prosecution of all heads of state accused of genocidal behaviour without exception.

A look into recent developments from the Rwanda Tribunal’s judgments reveals a very comfortable burden of proof on the part of prosecution to establish that crimes against humanity were committed.

It has recently been ruled that a government and its officers will more often have vicarious responsibility for all crimes against humanity occurring in its territory. Mere failure to use the police under their command to prevent killings, or to punish the perpetrators, would amount to tacit authorisation of genocidal behaviour justifying the prosecution and conviction of responsible state officials.

In fact, available case law already suggests that the explicit and implicit approval of genocidal behaviour by state officials would be sufficient to obtain conviction without the need to prove physical involvement in the offences.

It is trite that even in the Nuremberg trials, acquiescence and toleration of the crimes by state officials was sufficient as opposed to actual promotion of violence. Milosevic, and Mugabe in his capacity as the then prime minister and Defence minister as well as his officers who executed the Gukurahundi killings, would be found liable on this basis.

It would also be important to remind readers that Milosevic’s extradition came amidst great opposition from the political structures in Yugoslavia, the main incentive being the promise of over US$1 billion in aid for the reconstruction of the country’s destroyed infrastructure and sickly economy. The aid subsequently awarded to the government has also be seen as a “democratic dividend” for return to democracy and the rule of law in Yugoslavia.

That being the case, there are clear signs that in Zimbabwe, should there be a chance for democratic elections where citizens hope to choose another leader other than the paranoid and peevish Mugabe, the latter may find himself succombing to the same fate. We are also mindful of the fact that like Yugoslavia, Zimbabwe is currently burdened with a shocking foreign debt of over US$5 billion.

The parallels are all too clear.

l Ndlovu is a Zimbabwean currently based in Kosovo.

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Eric Bloch
THE state of the Zimbabwean economy is so distressed, and impacts so adversely and negatively upon almost all, that the minds of most people are focused almost continuously, and to the near exclusion of virtually all else, upon economic issues (save occasionally to bewail the recurrent defeats of the Warriors or the frequency of new appointments to the captaincy of Zimbabwean cricket!).

Recently, the most pronounced of the economic considerations which have been the centre of attention has been Zimbabwe’s chronic insufficiency of foreign exchange.

Being a very import-dependant country, adequate availability of foreign exchange is a prerequisite of a healthy economy. Every sector of the economy is reliant upon imports, be it fuel, energy, raw materials, finished goods, plant, machinery, equipment and other capital goods, or consumables and spares. The other sectors of society are equally dependant upon such imports, be they health, education, defence or merely (but importantly) family home life.

In the last three years Zimbabwe has sustained monumental decreases in the amounts of foreign exchange available to it. Many erroneously attribute the diminished availability almost entirely to reduced export performance and markedly lesser tourist patronage.
Whilst these are undoubted contributors, they are not the greatest ones.

Of far greater impact has been the combined effect of discontinuance of balance-of-payments support by the International Monetary Fund (IMF), the suspension of many programmes in Zimbabwe of the World Bank, the very considerable withdrawal of aid previously provided by donor states and agencies, the withdrawal of lines of credit by the leading banking institutions and other financiers of the world and by suppliers to Zimbabwean commerce and industry, and a nearly complete cessation of foreign direct investment (FDI) in Zimbabwe.

All of these have been occasioned by controllable circumstances. Foremost has been the unwillingness of government to enforce law and order and thereby to create a stable environment, its determined alienation of most of the international community, its equally determined disregard for macro-economic fundamentals, and its total lack of consistency in the application of fiscal, monetary and economic policies (the sole consistency being always to do that which is destructive, ineffectual, inadequate or at variance to economic needs).

Government has steadfastly ignored the realities and failed to acknowledge that which was necessary to reverse the economic ills and restore wellbeing to the sources of livelihood of Zimbabwe’s people. By doing so, it has allowed the situation to worsen continuously and at increasing speed.

It is, therefore, heartening in the extreme that over the last fortnight the Minister of Finance and Economic Development, Simba Makoni saw fit to “buck the system” and to “say it as it is”, instead of as the president, the minister of fiction and myth, and most of the cabinet, pretend it to be, blinding themselves to the facts.

First, at the Zimbabwe Tobacco Association congress, he acknowledged unreservedly that the Zimbabwean dollar was grossly overvalued.

A week later, at a National Economic Consultative Forum (NECF) meeting he delivered a brilliant overview of the Zimbabwean economic malaise. He noted that the balance-of-payments is in a precarious position, with performance on both current and capital account deteriorating “significantly over the last five years”.

He admitted to prohibitively high inflation, severe shortages, and that the country’s economic policies have been characterised by a “stop, start, stop, start” syndrome. (By way of example, he highlighted that when he had effected currency devaluation shortly after coming into office, he had stated that regular further devaluations would be effected in cognisance of movement in purchasing power parity and the disparity between the inflation rate in Zimbabwe and the inflation rates of its principal trading partners, but that in practice there had been no further formalised devaluations, albeit indirectly those had occurred through the operations of the “parallel market”.

Although there had been a resolute denial of the existence of such a market, he now admitted to it). He emphasised that the erratic implementation syndrome of the past had to be replaced with one of consistency, combined with a sense of urgency and absolute transparency.

Of major significance was his statement that every farmer, whether black or white, communal or commercial, must be able to farm with an absolute sense of security, and with a knowledge that he will be enable to harvest without hindrance all crops planted. In doing so, he was underscoring the need for law and order to be maintained and enforced, and for human rights to be fully respected.

He also stressed that the depressed state of the economy is such that there can be no “quick fix”, but that that should not deter an urgent commencement of recovery measures, to be pursued dynamically, innovatively and with conviction. And he emphasised that resolution of Zimbabwe’s economic problems could not be achieved by any one single policy or act.

Much would need to be done, and addressing the foreign currency situation was but one element. Moreover, insofar as that was concerned, the position could not be rectified merely by recourse to currency devaluation. Makoni, with much assuredness and conviction in his voice, said that it was amply demonstrated that there is a “need to put in place measures to stimulate the supply of foreign exchange and economic growth”, and continued that this must be done for all economic sectors.

In order to do so, each sector would have to be facilitated, and he outlined examples of urgent actions to be evaluated and implemented by government to stimulate tourism, mining and energy, agriculture, indu- stry and financial services. Now he will have to demonstrate that he can motivate his cabinet colleagues to pursue the suggestions, and to develop others and to do so rapidly but thoroughly.

Makoni is wholly correct when he says that no one act will eliminate the critical foreign exchange shortages. Zimbabwe needs a co-ordinated programme of foreign exchange management and creation. That programme must contain a variety of measures. First and foremost must be the preservation of the very limited sources of foreign exchange inflows that still exist.

This necessitates that the viability of exporters is restored and maintained. To that end, notwithstanding associated negative repercussions, Zimbabwe has no option but to devalue its currency, and to do so substantially.

Disguised devaluations by way of ineffectual, so-called monetary export incentives, will no suffice. If Zimbabwe does not devalue, tobacco growers will be unable to produce a crop next year. If Zimbabwe does not devalue, the viability of most mines, horticulturists and manufacturers will be destroyed. If Zimbabwe does not devalue, its much weakened tourism industry has no prospect of recovery.

Concurrently, Zimbabwe must vigorously enforce law and order, respect the judiciary, treat all its peoples equitably and without discrimination in general, and especially without racial, tribal or gender bias. That will contribute markedly to a re-establishment of an economically conducive environment, and one regarded as a desirable investment destination. Whilst doing so, it must assiduously pursue reconciliation and harmony, co-operation and collaboration with the international community.

Zimbabwe must also, as repeatedly said by Makoni, strive to increase its foreign exchange earnings, and to that end must accommodate the needs of exporters (both direct and indirect, tangible and intangible, incentivise them with meaningful incentives, and diversify its export base.

However, as also said by the minister, monetary discipline must ensure containment of foreign exchange leakages (although the ultimate prevention of leakage is decontrol in a monetary stable environment wherein leakage conveys no advantage!).

To avoid a need for continuing devaluations, Zimbabwe has to curb inflation, and to do so it must stimulate productivity, minimise state recurrent expenditure and government borrowings, and maximise supply over demand.

Makoni has not only an unenviable task, but also one incapable of fulfilment unless he has the unqualified support of the entire executive, and of the private sector. The latter will be readily forthcoming if the former belatedly is extended to him. He has begun to admit to Zimbabwe’s economic circumstances and needs without prevarication. Will his colleagues have the courage, wisdom and maturity to do likewise?

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From The Times (UK), 6 July

Zimbabwe seeks international aid to prevent famine

Harare - Zimbabwe has launched an international appeal for aid to prevent a famine despite months of denying that food shortages were imminent. Although President Mugabe’s militias are increasing their campaign of violence against farmers, Simba Makoni, the Finance Minister, said yesterday that he was very concerned about the prospects of dealing with food shortages. "Our budget hasn’t provided for this," he said. "We have started sending messages to key members of the international community to indicate that we will be short and we will need assistance." He acknowledged Zimbabwe’s international isolation over the breakdown of the rule of law in the country, but he said: "Where human life is concerned, we can find common cause to mitigate it (famine)".

The state crop forecasting committee’s latest report estimates that Zimbabwe will have to import about 600,000 tonnes of maize, the national staple, and 200,000 tonnes of wheat. The combined cost would be about £85 million. Meanwhile the militias of so-called guerrilla war veterans are increasing their harassment of and violence against white farmers who are trying to plant crops for the new season on land all over the country. Wheat growers have had to cut wheat production by thousands of acres after squatters forcibly stopped them from planting.

There are fears that there will be more instances of the burning of dry-ripened wheat crop that occurred last year. The maize crop is about 30 per cent less than last year’s because of the harassment of farmers, a shortage of crop chemicals and poor weather. Farm union sources say that ruling party militias have stolen thousands of tonnes of ripening maize from white-owned farms. About 95 per cent of commercial farmers, who produce 85 per cent of the country’s agricultural output, have had their farms listed for seizure by the government.

From The Independent (UK), 6 July

Blair warns Mugabe on Zimbabwe democracy

Harare/London - Tony Blair has personally warned President Robert Mugabe that he wants to see a stable and democratic Zimbabwe. The firm message was contained in a letter Mr Blair wrote to Mr Mugabe this week in reply to a letter from the Zimbabwean President congratulating him on his re-election as Prime Minister. Mr Mugabe had asked Mr Blair to use his re-election as an opportunity to reopen dialogue with Zimbabwe to resolve the differences between the two countries. And while the Prime Minister replied that he also hoped for "good relations" he suggested that he would not compromise British demands for free and fair elections and a stable economy. Britain has been frustrated by the economic turmoil in Zimbabwe and Mr Mugabe's failure to halt the intimidation of white-owned farms by his supporters.

Mr Blair wrote that he hoped future relations would be favourable between the two countries. He said in his letter, a copy of which has been shown to The Independent by other sources: "I share your desire for good relations between our two countries. Like you, I want to see a stable, prosperous and democratic Zimbabwe. We stand ready to play our part in helping Zimbabwe achieve these goals, as successive British governments have done since independence." Relations between Britain and its former colony reached a low point last year when Mr Mugabe's militant war veteran supporters launched a campaign to invade and occupy white-owned farms.

From News24 (SA), 5 July

Police raid MDC offices

Harare - Police raided the offices of Zimbabwe's main opposition party on Thursday without a warrant, claiming they were searching for hostages, party officials said. At least 15 armed riot police, plus additional plainclothes officers, arrived at the offices of the MDC around 15:40 and began searching the office, MDC spokesperson Learnmore Jongwe said. The police remained in the office for about 90 minutes, with another truck of police stationed outside, and took the personal details of everyone there, Jongwe said.

"The official and unreasonable excuse they gave is that they were searching for hostages," Jongwe said. He said the police did not have a search warrant, which "makes this whole adventure illegal," Jongwe said. "This is not the first time they have done it, and it certainly won't be the last," he added. Police declined to say why they were at the offices, saying only that they were on duty. MDC has posed the first ever significant challenge to Zimbabwean President Robert Mugabe's 21-year rule, winning nearly half the seats in last year's parliamentary elections. Police have raided the MDC's office several times during the last year. Their offices also suffered a grenade attack last year.

From The Daily News, 6 July

Chronicle editor forced to leave

Steve Mpofu, the editor of The Chronicle for the past 12 years, has been fired. In announcing the move yesterday, Zimbabwe Newspapers, the government-controlled publishers of the paper, said Mpofu had retired. Mpofu, 62, was reported by The Daily News yesterday to have censored a large section of The Story of My Life, the late Vice-President Dr Joshua Nkomo’s autobiography. Before the end of the day he was out. Mpofu claimed 1 385 words had been omitted because of lack of space. Last night he said on television that the error was technical.

Edna Machirori, editor of The Sunday News in Bulawayo, takes over from Mpofu. Machirori is replaced by Sunday Mail deputy news editor Stephen Ndlovu, while Makuwerere Bwititi, news editor of The Chronicle, becomes editor of The Manica Post in Mutare. He replaces John Gambanga, who has joined The Daily News as news editor. Mpofu becomes the sixth editor to be fired at Zimbabwe Newspapers in quick succession. First to go was Bornwell Chakaodza, editor of The Herald, and his deputy Thomas Bvuma. Pascal Mukondiwa of The Sunday Mail was fired at the same time. Then it was the turn of their successors, Ray Mungoshi and Funny Mushava. Chakaodza, Mungoshi and Mushava are still on their full salaries and benefits - almost for two years in the case of Chakaodza – after leaving office.

From The Atlanta Journal-Constitution (US), 5 July

Young counsels talks, fairness in Zimbabwe feud

Former U.N. Ambassador Andrew Young is working to try to resolve one of the thornier issues in southern Africa - the forcible seizure of land in Zimbabwe from white landowners by black war veterans with the encouragement of President Robert Mugabe. Young met with Mugabe last month at the request of Nigerian President Olusegun Obasanjo, and he said he hopes to meet with Mugabe again later this month.

Over the past year, militants led by veterans of the guerrilla war that resulted in Zimbabwe's independence in 1980 have captured - sometimes using violence and intimidation - more than 1,700 of the country's white-owned farms. At least 32 people have been killed. The Zimbabwean government recently published a list of about 4,500 properties that are slated for confiscation. The economy of Zimbabwe has suffered, and other African leaders are concerned about the effect that instability or economic ruin could have on the region.

Young went to Zimbabwe last month to talk with Mugabe, who has ruled the Montana-sized country, first as prime minister and then as president, since independence. Young said he carried no message from Obasanjo to Mugabe. "I went to see what was going on," Young said. Obasanjo "just said, 'Go talk to your friend. He will talk to you. He will listen to you.' " Young said he talked with Mugabe for about two hours on June 5 and found him "in very good spirits." Obasanjo and South African President Thabo Mbeki have asked British Prime Minister Tony Blair to form a Commonwealth committee on the land question. Young said that, as a result of his meeting with Mugabe, the Zimbabwean president agreed to try to work with that committee on the issue of land distribution.

Britain and the United States are partly to blame for the fact that land distribution in Zimbabwe continues to be a problem, Young said. Both countries long ago pledged to help raise money to help equitably redistribute the land but never delivered, he said. Mugabe has been strongly criticized by some international officials - Secretary of State Colin Powell has said it is time for him to leave office - but Young said efforts to "demonize" Mugabe miss the point. "Poverty in Zimbabwe is rooted in the fact that 1 percent of the people own 70 percent of the land," Young said. "Ian Smith (the former Rhodesian prime minister), who lost the war, is still living very comfortably in Zimbabwe, and he still has three farms. There are some basic inequities that the war veterans have forced the country and the world to confront."

Young also said that wishing Mugabe away will not solve Zimbabwe's problem, because Mugabe needs to be part of the solution. "People want to write him off and dismiss him and get rid of him," Young said. "But who has enough credibility to get the war veterans off the land? I don't think the opposition has enough credibility to do that. Mugabe has a lot of credibility. He can get people to do things others can't." Young said he did not doubt reports of violence associated with the land seizures, and he acknowledged that the situation is volatile. But he said the situation is contained compared to other conflicts in the world, or even compared to the number of homicides in Atlanta. In that context, he said, the land seizures must be viewed "as an extremely orderly and disciplined protest."

From ZWNEWS, 6 July

US Civil Suit – The Plaintiffs' Surreply

Yet another chapter in the ongoing saga of the court case against President Mugabe, Stan Mudenge and others in the United States…

On a trip to New York last year, Mugabe, and Mudenge were served with a Complaint, detailing charges against them by the relatives of people killed by Zanu PF supporters in the run-up to the 2000 parliamentary elections. The Zimbabwe government then requested that the US government submit to the US Federal District Court a Suggestion of Immunity, arguing that as head-of-state, and foreign minister, they were not liable to be sued in the United States. This Suggestion of Immunity was submitted to the court by the US State Department. Attorneys for the Plaintiffs then submitted an Argument against Immunity, giving Plaintiffs’ reasons as to why the court should not defer to the State Department’s Suggestion of Immunity.

At the beginning of June 2001, attorneys for the State Department replied to the Plaintiffs’ Argument against Immunity with an Argument for Immunity, detailing the US State Department’s reasons for the court to grant immunity to Mugabe and Mudenge and dismiss the Complaint against them. The Plaintiffs have subsequently submitted to the court a "Surreply Brief", in answer to the State Department's Argument for Immunity.

If you would like us to email you a copy of this "Surreply", please let us know. The "Surreply" is 105 Kb in size – i.e. roughly twice the size of the average daily ZWNEWS - and will be sent in the form of a Word document as an attachment to an email message. It can also be read on our website – – as can the original "Complaint", the "Argument against Immunity", and the "Argument for Immunity", in the Rule of Law section under Reports.

From ZWNEWS, 5 July

MDC UK elections

The MDC in the UK has elected a new executive to replace the interim committee, under the leadership of Eldridge Culverwell, which had been in place since early last year. Brian Bako – former chairman of the Birmingham branch - was elected the Chairman of the new structure, and Jennings Rukani, from Manchester, has taken over as Deputy Chairman. Other office bearers elected in the elections last week were: Onismus Munyaradzi – Secretary; Lt. Col. (Rtd.) Esau Sibanda – Vice-Secretary; John Mukungunugwa Huruva – Organising Secretary; Everisto Kavero – Vice-Organising Secretary; Flora Todlana - Secretary for Women's Affairs; Rudo Madhlayo – Vice-Secretary for Women's Affairs; Taurayi Chamboko - Secretary for Youth; Philip Chikwiramakomo – Vice-Secretary for Youth; Moses Sithole - Treasurer; Durani Rapozo - Secretary for Information and Publicity; and, Gideon Mutyiri – Vice-Secretary for Information and Publicity. The UK elections follow party elections being held throughout Zimbabwe, and are part of the ongoing process of strengthening local and provincial structures. The Returning Officer was Brian Kagoro.

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US Civil Suit – The Plaintiffs' Surreply

Yet another chapter in the ongoing saga of the court case against President Mugabe, Stan Mudenge and others in the United States…

On a trip to New York last year, Mugabe, and Mudenge were served with a Complaint, detailing charges against them by the relatives of people killed by Zanu PF supporters in the run-up to the 2000 parliamentary elections. The Zimbabwe government then requested that the US government submit to the US Federal District Court a Suggestion of Immunity, arguing that as head-of-state, and foreign minister, they were not liable to be sued in the United States. This Suggestion of Immunity was submitted to the court by the US State Department. Attorneys for the Plaintiffs then submitted an Argument against Immunity, giving Plaintiffs’ reasons as to why the court should not defer to the State Department’s Suggestion of Immunity.

At the beginning of June 2001, attorneys for the State Department replied to the Plaintiffs’ Argument against Immunity with an Argument for Immunity, detailing the US State Department’s reasons for the court to grant immunity to Mugabe and Mudenge and dismiss the Complaint against them. The Plaintiffs have subsequently submitted to the court a "Surreply Brief", in answer to the State Department's Argument for Immunity.

______________________________________ ) 
                                           PLANTIFFS, ) 
                                            v. ) 00 Civ 6666 (VM)
                                           DEFENDANTS, ) 
______________________________________ ) 
THEODORE M. COOPERSTEIN, P.C.1815 Pennsylvania Ave., N.W.Suite 501Washington D.C. 20006  HOGAN & HARTSON L.L.P.Paul B. SweeneyLauren E. Rosenblatt100 Park AvenueNew York, New York 10017(212) 916-7222
COOPER & KIRK, P.L.L.C.Hamish P.M. Hume1500 K Street, N.W.Washington, D.C. 20005July 2, 2001          andWilliam J. BowmanMary Ellen CallahanJohn J. ClasbyShelly L. McGeeTheresa K. Nabors555 Thirteenth Street NWWashington DC 20004


TABLE OF CONTENTS……………………………………………………………………………………………..2
TABLE OF AUTHORITIES ………………………………………………………………………………………....3
1. The FSIA Applies to Individuals 10
2. The Chuidian Rationale Applies to All Government Officials Eligible to Claim Sovereign Immunity 11
3. Applying the FSIA Here Is Consistent with Its Legislative History 12
4. Plaintiffs’ Interpretation of the FSIA Does Not Lead to a Radical Change in the Substantive Immunity Available to Heads of State 13

Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682 (1976) 11, 17
Byrd v. Corporacion Forestal y Indus. De Olancho S.A., 182 F.3d 380, 389 (5th Cir. 1999) 7
Cabiri v. Assassie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996) passim
Chuidian v. National Bank of Philippines, 912 F.2d 1095 (9th Cir. 1990) passim
Circuit City Stores, Inc. v. Adams, 121 S. Ct. 1302 (2001) 18, 20, 21
Clinton v. Jones, 520 U.S. 681 (1997) 14, 17
Dralle v. Rep. of Czechoslovakia, 17 Int.L.Rep. 155 (Sup.  Ct. of Austria 1950) 17
El-Fadl v. Central Bank of Jordon, 75 F.3d 668, 671 (D.C. Cir. 1996) 7
Ex Parte Peru, 318 U.S. 578 (1943) 3, 5, 10, 18
First American Corp. v. Sheikh Zayed Bin Sultan Al-Nahyan, 948 F. Supp. 1107 (D.D.C. 1996) 16
First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972) 17
Garcia v. United States, 469 U.S. 70, 76 (1984) 11
Hilao v. Marcos, 25 F.3d 1467 (9th Cir. 1994) 4, 8
In re Doe, 860 F.2d 40 (2d Cir. 1988) 13
Jungquist v. Sheikh Sultan Bin Khalifa, 115 F.3d 1020 (D.C. Cir. 1997) 4, 7, 8, 9, 13, 17
Kadic v. Karadzic, 70 F.3d 232 (2nd Cir. 1995) 13, 14
Kelly v. Robinson, 479 U.S. 36, 51, n.13 (1986) 11
Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994) 6, 16
Republic of Mexico v. Hoffman, U.S. 30 (1945) 5
Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1150-1 (7th Cir. 2001) 24
Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) 24
Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996) 23
Spacil v. Crowe, 489 F.2d 614 (5th Cir. 1974) 5
Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982) 21
The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812) 4, 5, 11
United States v. Lee, 106 U.S. 196 (1882) 5
United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997) 6
United States ex. rel. Casanova v. Fitzpatrick, 214 F. Supp. 425 (S.D.N.Y. 1963) 18
Verlinden v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983) 4, 7, 8
Vulcan Iron Works Inc. v. Polish American Machinery Corp., 479 F. Supp. 1060 (S.D.N.Y. 1979) 7
Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) 5
Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946 19, 20, 22, 23
Vienna Convention on the Law of Treaties, Art. (1969) 24
22 U.S.C. § 287 22
Dellepenna, Head﷓Of﷓State Immunity—Foreign Sovereign Immunities Act —Suggestion by the Department of State, 88 Am. J. Int'l L. 528 (1994) 5, 6
George, Note, Head﷓Of﷓State Immunity in the United States Courts: Still Confused After All These Years, 64 Fordham L. Rev. 1051 (1995) 5, 7
H.Rep. 94-1487 4
Ling, A Comparative Study of the Privileges and Immunities of United Nations Member Representatives and Officials with the Traditional Privileges and Immunities of Diplomatic Agents, 33 WASH. & LEE L. REV. 91 (1976)  21, 22
Mallory, Resolving the Confusion over Head of State Immunity: The Defined Right of Kings, 86 Colum. L. Rev. 169 (1986) 6, 12
S. Rep. 94-1310 2, 10, 15
S. Rep. 91-17……………………………………………………………………………… 22
 In its reply to plaintiffs’ answering brief (“Reply”), the Government does not contest that plaintiffs have suffered the worst conceivable forms of human rights abuse, nor that defendants authored those abuses in their private, rather than their sovereign capacities.  Rather, the Government asserts that it has the power to bind this Court with its Suggestion of Immunity (“the Suggestion”) without regard to the nature of the acts committed by defendants.
 Plaintiffs acknowledge the obvious importance of immunity in allowing our Government, and the United Nations, to enter into discussions with leaders from around the world.  Plaintiffs also agree the Executive Branch is responsible for the country’s foreign relations.  Nevertheless, this is not the open-and-shut case the Government describes.  Rather, plaintiffs strongly urge, the Court has a vital role here.  Indeed, a careful, logical review of the law gives this Court authority to find the defendants not immune for their concededly unofficial acts.
To be sure, the Court should not blind itself to the important policy arguments surrounding the principle of comity articulated in the Government’s brief.  To the contrary, the Court should ensure that the rule of law, and nothing else, comprehensively responds to those concerns.  First, the law serves the interest of comity by giving the Executive Branch control over a head of state’s all-important immunity from criminal prosecution.  Second, the substantive law of foreign sovereign immunity provides complete immunity to visiting heads of state and other foreign officials against all civil suits based on their sovereign conduct.  Finally, if a head of state or other official visits the United States or the United Nations on official business, it appears he may have the ability, either by prior arrangement or by limiting his visit to official business, to cloak himself with diplomatic immunity that shields him in virtually every case.
That is the law.  It protects the serious interests identified in the Government’s brief.  It also, at least to some degree, recognizes the concerns of private plaintiffs whose lives have been destroyed by terror and violence.  In this case, ZANU-PF brutally attacked and murdered three individuals for daring to believe in democracy.  The Government does not contest that these murders were committed by ZANU-PF and were not a part of any government action by the State of Zimbabwe.  The Government also does not contest that the leader of ZANU-PF, who directed the private campaign of terror that took these three lives along with more than thirty others, was served with two copies of the Summons and Complaint, both for himself personally and for ZANU-PF, as he entered a private rally here in New York designed specifically to generate support for ZANU-PF.  Under these facts, the law provides no immunity.
Apparently, the Government wants a different result.  It does not credit the law with being able to adequately address its worries and insists upon the unchecked power to dictate immunity to the courts.  Perhaps for this reason, it treats the facts in this horrific case as totally irrelevant – to the Government, it simply does not matter that Tapfuma Chiminya was burned alive on the side of a road because he decided to vote against ZANU-PF.  What matters to the Government is its claim that it, and only it, has the power to dictate immunity.  But that is not the law in this country, and while the Government tries to finesse the legal questions posed by plaintiffs’ answering brief, in reality it does nothing more than avoid them.
 To demonstrate that a “longstanding practice” of “more than a century” gives it the power “to make conclusive determinations of head of state immunity,” the Government cites Supreme Court cases establishing the doctrine of foreign sovereign immunity. Reply at 1,2.  That is precisely the doctrine, and these are precisely the cases, which Congress replaced with the Foreign Sovereign Immunities Act (“FSIA”).  Indeed, the FSIA was enacted specifically in order to end the “longstanding practice” of deferring absolutely to the State Department.  S. REP. 94-130 at 11 (The FSIA was designed to “bring U.S. practice into conformity with that of most other nations by leaving sovereign immunity decisions exclusively to the courts, thereby discontinuing the practice of judicial deference to ‘suggestions of immunity’ from the executive branch.” (citing Ex Parte Peru, 318 U.S. 579 (1943)).  Thus, the Supreme Court cases on which the Government relies are no longer the law. 
By invoking the case law from the nineteenth and early twentieth century that established the doctrine of foreign sovereign immunity and the practice of deferring to the State Department, is the Government invoking a remnant of the pre-FSIA doctrine, or is it invoking a separate doctrine of head of state immunity?  The Government does not say.
Regardless, neither argument is viable. Indeed, the Government does not argue that part of the old doctrine of foreign sovereign immunity survived the FSIA, and this Court should not adopt that argument.  The Government advanced precisely that point in Chuidian v. National Bank of Philippines, 912 F.2d 1095 (9th Cir. 1990), and the Ninth Circuit squarely rejected it.  Remarkably, given plaintiffs’ emphasis of this case, the Government refused to state whether it agreed or disagreed with Chuidian, preferring to dismiss it as “inapposite.”  With respect, there is nothing “inapposite” about the following, which forecloses the premise of the Government’s position in this case:
The government  . . . urges us to apply the pre-Act common law of immunity.  In its view, the Act replaces common law only in the context of “foreign states” as defined by section 1603(b); elsewhere – i.e., for entities covered by the common law but not the Act – common law principles remain valid. . . .  [W]e disagree with the government that the Act can reasonably be interpreted to  leave intact the pre-1976 common law with respect to foreign officials. . . .  [S]uch a rule would work to undermine the Act. 
Chuidian, 912 F.2d at 1101-2. 
Based on this very holding, which the Government does not contest, courts have held that, among many others, former President Marcos, Prince Sultan of Abu Dhabi and General Hector Gramajo of Guatemala were not immune from suit in our courts.   Likewise, based also on this holding, this Court held that the then-in-office Deputy National Security Advisor from Ghana was not immune from suit under the TVPA.  Cabiri v. Assassie-Gyimah, 921 F. Supp. 1189, 1198 (S.D.N.Y. 1996).  By not opposing these cases, the Government acquiesces to the fact that no part of the doctrine of foreign sovereign immunity survived passage of the FSIA.
Similarly, the Government cannot argue that, prior to 1976, an independent doctrine of “head of state immunity” existed that also provided for absolute deference to State Department suggestions.  There is no evidence such a doctrine existed independent of foreign sovereign immunity, and the Government has not pointed to a seminal case that established such a doctrine.  Rather, prior to 1976, the immunity of states, heads of states, and other non-diplomatic foreign officials was bound up in a single, indivisible doctrine of foreign sovereign immunity based on the seminal case of The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812).  This doctrine is precisely the doctrine Congress intended to supplant by enacting the FSIA.  See Chuidian, 912 F.2d at 1102 (“Congress intended the Act to be comprehensive”); H. REP. 94-1487, at 12 (describing FSIA as “setting forth comprehensive rules governing sovereign immunity”).  More importantly, it is precisely that doctrine’s peculiar practice of giving absolute deference to the State Department that the FSIA was intended to supersede, in order to “[assure] litigants that  . . . decisions are made on purely legal grounds and under procedures that insure due process.”  Verlinden v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983) (internal citations and quotations omitted).
For proof that there was only one pre-FSIA doctrine that gave the Government absolute control over immunity decisions, one need look no further than the case law on which the Government relies.  In order to demonstrate its “longstanding” power to dictate the result in this case, the Government cites to The Schooner Exchange, United States v. Lee, 106 U.S. 196 (1882), Ex Parte Peru, 318 U.S. 578 (1943), Republic of Mexico v. Hoffman, 324 U.S. 30 (1945), and Spacil v. Crowe, 489 F.2d 614 (5th Cir. 1974).  See Suggestion at 3-4; Reply at 3-4, 6.  These cases, without exception, invoke the common law doctrine of foreign sovereign immunity, and that doctrine’s practice of deferring to the State Department.  Just like the FSIA, these cases deal on their face solely with the immunity of foreign states.
Plaintiffs wish to be clear.  They agree these Supreme Court cases governed the immunity for heads of state prior to the FSIA, even though they dealt on their face only with states, because the immunity for heads of state and other officials was controlled by the doctrine of foreign sovereign immunity.  This view is widely shared.  See generally George, Note, Head﷓Of﷓State Immunity In The United States Courts: Still Confused After All These Years, 64 FORDHAM L. REV. 1051, 1055 (1995) (hereinafter “George”) (“Historically, sovereign immunity for states and heads-of-state immunity were considered one and the same”); Dellepenna, Head﷓Of﷓State Immunity—Foreign Sovereign Immunities Act – Suggestion By The Department Of State, 88 AM. J. INT'L L. 528, 529 (1994) (hereinafter “Dellepenna”) (“There was no precedent for a doctrine of substantive immunity for foreign heads of state (as distinct from the doctrine of foreign sovereign immunity generally) until after the enactment of the Foreign Sovereign Immunities Act of 1976”).
Plaintiffs are also not arguing that “head of state immunity” does not exist today.  They are simply pointing out that head of state immunity cannot be disaggregated from the original doctrine of foreign sovereign immunity, or at least not without consciously creating a new common law doctrine.  Thus, since the FSIA supplanted the common law doctrine of foreign sovereign immunity  and rescinded the practice of giving absolute deference to the State Department, the immunity of heads of state must either be controlled by the FSIA or by a new, post-FSIA common law that has not yet been formulated.  This case should decide which.  To date, the only evidence of a new, post-FSIA doctrine for heads of state is a small number of lower court decisions that invariably refer to head of state immunity as “an attribute of state sovereignty.”  See, e.g., Lafontant v. Aristide, 844 F. Supp. 128, 133 (E.D.N.Y. 1994).  These decisions have not recognized that they are creating new common law.  For that reason, they have not dispelled, and may even have caused, the considerable confusion surrounding “head of state immunity,” which has been described as “an at best amorphous legal doctrine whose very existence is not entirely settled in U.S. law and whose reach is almost entirely uncertain.”  Dellepenna, at 529 (emphasis added); see also Mallory, Resolving The Confusion Over Head Of State Immunity: The Defined Right Of Kings, 86 COLUM. L. REV. 169, 183 (1986) (hereinafter “Mallory”) (“prominent role of State Dept. has created confusion rather than clarity”); George, at 1055 (head of state immunity is “mired in confusion”).
 What is clear, however, is that the Government’s unflinching reliance upon pre-FSIA case law is simply wrong.  Those cases are not the law.  Strip the Government of these august but now obsolete authorities, and it is readily apparent that either a new common law doctrine has emerged, or, as plaintiffs have argued, the FSIA should be understood to govern immunity for heads of state under the analysis found in the Chuidian-Marcos-Cabiri line of cases. 
Without acknowledging the large body of law holding otherwise, the Government tries to argue that the FSIA does not apply to natural persons.  Then, paradoxically, it dismisses as “inapposite” the many cases applying the FSIA to natural persons, saying that they involved natural persons other than sitting heads of state or foreign ministers.   These cases hold that the FSIA governs the immunity of individual foreign officials who could otherwise have claimed sovereign immunity before the FSIA, and that the FSIA does not immunize their unofficial conduct.  They are hardly so “inapposite” as to be unworthy of a response, and it is somewhat less than candid to dismiss them as such.
1. The FSIA Applies to Individuals
It is disingenuous for the Government to argue repeatedly that the FSIA governs only the immunity of “foreign states” and not the immunity of “natural persons,” see Reply at 8-12, all the time ignoring the overwhelming case law holding otherwise.  See, e.g., Byrd v. Corporacion Forestal y Indus. De Olancho S.A., 182 F.3d 380, 389 (5th Cir. 1999); El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996); Cabiri, 921 F. Supp. at 1197. 
While the principal focus of the FSIA may have related to commercial activities by foreign states, this and a multitude of other courts have recognized its far broader purpose.  In the words of the Supreme Court, it was enacted to end the “troublesome” practice of courts abiding by “ ‘suggestions of immunity’ from the State Department,” a practice under which, “[o]n occasion, political considerations led to suggestions of immunity in cases where immunity would not have been available under the restrictive theory.”  Verlinden, 461 U.S. at 487.  Thus, the FSIA “codifies, as a matter of federal law, the restrictive theory of sovereign immunity,” and brings an end to the era where “sovereign immunity determinations were made in two different branches, subject to a variety of factors, sometime including diplomatic considerations,” and where “the governing standards were neither clear nor uniformly applied.”  Id. at 488.
Courts throughout the country have held that this rationale would be undermined if not applied to foreign officials as well as the abstract entities of the foreign state, and have concluded that the plain text of the FSIA applies to individual officials acting in their official capacity.  See Pls. Answering Brief at 11-16 (and cases cited therein).  The Government has not asked this Court to depart from its prior holdings agreeing with this well-established interpretation of the FSIA, and there is no good reason for this Court to do so.
2. The Chuidian Rationale Applies to All Government Officials Eligible to Claim Sovereign Immunity 
 In their opening brief, plaintiffs cited to the Ninth Circuit’s decision in Chuidian as the best analysis of how the FSIA applies to individual foreign officials.  The Government dismisses Chuidian, arguing that it should not be applied to cases involving more senior foreign officials (never specifying which officials fall into this specially-protected class).  Reply at 17. 
 The government fails to acknowledge that the Chuidian analysis has been applied to resolve the immunity claims of both a foreign prince and a foreign head of state sued for conduct committed while he was a head of state.  Jungquist, 115 F.3d at 1127; Marcos, 25 F.3d at 1472.  Thus, no court has ever suggested that, as the Government seems to argue, the Chuidian interpretation of the FSIA applies only to “lower-ranking foreign officials.”  Reply at 19. 
In addition, the Government’s argument that the rationale behind Chuidian does not apply to cases involving more senior officials is incorrect.  The Government’s own account of that rationale includes the following justification for applying the FSIA to individual officials: “the perceived negative effect of permitting the Executive Branch to indirectly assert its authority over all questions of foreign sovereign immunity, notwithstanding the FSIA’s shift of such authority to the courts, by issuing binding suggestions of immunity as to any government official it chose.”  Reply at 17.  That “perceived negative effect” will certainly exist if the Government has its way in this case.
Finally, the Government suggests that the Chuidian-rationale indicates that the FSIA applies only to officials who have no “independent body of law” giving them immunity, and who are only immune from suit based on the principle of sovereign immunity.  The Government does not explain what the “independent body of law” is in this case, nor does it explain why it was not applied in other, similar cases. See, e.g., Jungquist, 115 F.3d at 1027; Cabiri, 921 F. Supp. at 1198.  In any event, it is entirely circular for the Government to argue that the FSIA did not supplant the common law in this case as it did in Chuidian simply because in this case an “independent body of common law” applies, whereas in Chuidian it did not.
The inescapable fact is that prior to the FSIA only one common law doctrine applied to cases like this one and Chuidian.  As Chuidian and many other cases have held, the FSIA was enacted to supersede that doctrine’s practice of giving absolute deference to the State Department in all cases where the doctrine previously did so.
3. Applying the FSIA Here Is Consistent with Its Legislative History 
The Government refers to a part of the FSIA’s legislative history clarifying that the legislation would not pertain to diplomats, and argues that it shows the FSIA was not intended to “alter” the immunity of “individual officials.”  Reply at 11-12.  The FSIA did not “alter” the immunity status of foreign officials, but simply transferred the resolution of that status from the Executive Branch to the courts.  For this reason, the FSIA’s legislative history has not been read to mean that, as the Government argues, the legislation applies only to “nonnatural” persons.
Moreover, the statement from the legislative history that the immunity of “diplomatic or consular representatives” would not be governed by the FSIA only confirms plaintiffs in their analysis.  In 1976, the law governing diplomatic immunity was well-established and set forth in statutes and treaties, and was not governed by the common law of sovereign immunity.  If the FSIA’s legislative history went out of its way simply to confirm that the separate statutes governing diplomats were unaffected, but made no mention of heads of state even though they were governed by precisely the same doctrine the FSIA was enacted to supplant, the strong implication is that Congress intended heads of state to be covered by the FSIA to the full extent they were previously covered by the doctrine of foreign sovereign immunity.
At most, the Government’s argument simply shows that Congress was not focused on heads of state.  That may be true, but that does not change the fact that Congress was undoubtedly focused on the common law doctrine of foreign sovereign immunity and intended to supplant it and to terminate the practice of courts being bound by suggestions of immunity.  S. Rep. 94-1310, at 11. (FSIA discontinues “the practice of judicial deference to ‘suggestions of immunity’” (citing Ex Parte Peru.))  Nothing in the legislative history in any way suggests that Congress had any expectation that this practice would continue, or that sovereign immunity could be claimed by anyone not covered by the FSIA.
4. Plaintiffs’ Interpretation of the FSIA Does Not Lead to a Radical Change in the Substantive Immunity Available to Heads of State
The Government’s argument that the FSIA should be read so as not to “disturb established practices concerning heads-of-state” makes no sense: there were no such “established practices.”  The only established concept – let alone practice – was that a head of state’s immunity was derived from the common law doctrine immunizing foreign states generally.  In plaintiff’s view, the FSIA ought not to be read to destroy that established concept.
Moreover, the Government seems to have misunderstood plaintiff’s reading of the FSIA, since it plainly does not lead to the havoc and disorder suggested by the Government.  Between 1952 and the enactment of the FSIA, the law in this country was that foreign sovereign immunity, which was assumed to encompass heads of state, was to be applied on a “restrictive,” not an absolute, basis.  Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682, 703 (1976).  Thus, on the eve of the FSIA’s enactment, and throughout its drafting, the background assumption was that “the law of the land” already dictated – at least in principle – that only sovereign acts were immune, while private acts were not.   The FSIA was not changing this principle, but was simply ensuring that it would be implemented as a matter of law.
Also, there was insufficient precedent for suits being brought against foreign officials and heads of state for Congress to recognize the issue as one that needed to be addressed explicitly.  Instead, Congress would have assumed that to the extent any of these officials were covered by foreign sovereign immunity prior to the FSIA, they would thereafter be covered by the FSIA, subject to its exceptions.  It is therefore unsurprising that Congress did not provide specifics on the immunity of foreign officials or heads of state, and simply defined states in the broadest possible language.
Finally, while the Government hints that interpreting the FSIA to apply to heads of state would be contrary to customary international law, it cannot seriously make this argument.  First, the principle of restrictive immunity has been applied to heads of state and other officials in other countries, and the Government does not refute this.   Second, the trend in international law is plainly towards greater accountability and more restrictive immunity.  No better example of this trend can be found than Article 27 of the Rome Statute of the International Criminal Court, as signed by both Zimbabwe and the United States.  The Government dismisses this convention and the United States’ effort to have President Milosevic prosecuted while he was a sitting head of state because these initiatives related to criminal prosecution by governments, not to civil cases brought by victims.  This distinction, like the others drawn by the Government, only shows why Article 27 does not control the outcome of this case.  Plaintiffs never said it did.  But Article 27 does show why applying the FSIA to the defendants in this case would accord with, and certainly would not offend, customary international law.
 In its effort to show that this case is governed not by the FSIA but by a (necessarily new) common law doctrine giving the State Department the power to bind this Court, the Government states that there are “unique foreign policy and institutional competence concerns” raised in cases dealing with heads of state and foreign ministers which are not raised in cases against other foreign officials.  Reply at 17.  The Government does not elaborate, but does confirm elsewhere in their brief that the policy concerns underlying head of state immunity are identical to those underlying foreign sovereign immunity: “the need for mutual respect and comity among foreign states.”  Reply at 3 (quoting In re Doe, 860 F.2d 40, 45 (2d Cir. 1988)).
If the Government is arguing that United States courts should not sit in judgment over the sovereign acts of a foreign state, plaintiffs quite agree.  The FSIA provides full immunity for heads of state being sued for all conduct that can fairly be characterized as official, or sovereign, in nature.  See generally Jungquist, 115 F.3d at 1027.  It appears the Government is arguing for more than this, however, and is asserting that all lawsuits against a head of state or foreign minister are, as a per se matter, equivalent to a lawsuit against a foreign state for its sovereign acts, and therefore run afoul of the principle of comity, unless the State Department says otherwise.
There are several problems with this position.  First and foremost, it arrogates to the State Department an absolute power over the potential comity concerns raised by private lawsuits, thereby contradicting the FSIA, which had supposedly transferred that power to the courts.  This power will obviously lead to grossly unfair results for litigants, whose ability to vindicate their established rights will depend solely on diplomatic and political maneuvering at the State Department and not on law.  Compare Government’s Statement of Interest, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)  with Reply Brief Submitted June 2, 2001, Chiminya v. Mugabe, Case No. 00-6666 (S.D.N.Y.).  That result is inconsistent with the FSIA and is an affront to human rights victims, to the rule of law more generally, and to the inherent power of this Court.
Second, the argument that suits against a head of state are per se equivalent to suits against a sovereign for sovereign acts is contrary to history and common sense.  Indeed, the Government’s position seeks to freeze into our system Louis XIV’s infamous eighteenth century quip, “L’etat, c’est moi.”  There is no authority for the continued viability of that principle in our legal system.  There is, however, authority for the inverse proposition that “No man is above the law.”  See generally Clinton v. Jones, 520 U.S. 681 (1997).
Moreover, the Government’s argument would lead to untenable results.  Are we to believe that a head of state could enter into a business transaction with a United States citizen on United States soil, could deliberately breach that transaction for purely private gain, and could nevertheless frequent the United States in the future to enter into similar transactions without facing the slightest threat of a lawsuit?  True, the State Department could refuse to suggest immunity, but if it will not do so here where defendants have committed torture and murder, it presumably will be even less likely to do so where defendants have merely breached contracts.  Indeed, the Government does not acknowledge any possibility that it would ever refuse to suggest immunity for a recognized head of state, and the tenor of its brief suggests it never would.  Thus, if a head of state who was wanted for war crimes  visited the United States on a purely private matter and, while here, abducted and murdered American citizens who had exposed his record, the relatives of those citizens would have no ability to sue him even if he stayed here to raise money and was served with process while walking into a fundraising event – so long as the State Department continued to recognize him as a head of state.
Sadly, that hypothetical is not farfetched.  There may be very good reasons why our government would not want to rescind diplomatic relations and withdraw recognition from a foreign government with an abysmal record on human rights, and, absent a withdrawal of recognition, it appears the Government would never refuse to suggest immunity.  Similarly, there may be very sound geopolitical reasons why the Executive Branch would not consent to allowing any criminal prosecution to be brought against an important head of state, no matter what crimes he may have committed, against American citizens or others.  Plaintiffs understand and accept those hard facts of geopolitical life.  But even accepting those facts and the Executive Branch’s unilateral, constitutionally-recognized right to make those judgments, they do not explain why the right of a private American citizen  to seek a civil judgment against the murderer of his family should be dependent upon State Department approval.  The FSIA surely did not contemplate immunity from civil jurisdiction for an individual’s “private acts” of murder.  S. Rep. 94-1310, at 9 (FSIA codifies restrictive immunity under which only public acts are immune).
Finally, the Government does not explain why foreign ministers and other, unspecified ministers must also be absolutely immune at the behest of the State Department, nor why the rationale that seeks to protect a foreign head of state from being sued must also protect him from even being served with process for a suit against a private organization with which he is affiliated. Without explanation, the Government suggests that it has the power to dictate immunity whenever it wants.  Here, it asserts that the common law requires the Court to obey the State Department’s command regarding Stan Mudenge and ZANU-PF; in the next case, perhaps it will do so with respect to officials in charge of a state trading agency, or senior military officials who hold high-ranking positions in a military dictatorship.  There is no way of knowing the extent of the power the Government assigns to itself, because the Government does not articulate a rule of law that designates certain decisions to the State Department and certain decisions to the courts.  It simply asserts the power and leaves it at that.
This Court exists to articulate rules of law, not to bow down to assertions of power.  It should not accept the Government’s invitation to adopt a completely formless doctrine that assigns absolute power to the State Department.
 If this Court decides to accept the Government’s policy arguments regarding the “unique considerations” that apply to suits against certain unspecified government officials, and also agrees with the Government that the FSIA does not apply to these “foreign leaders,” then this Court should explicitly recognize that it would be creating a new common law doctrine that is independent from the supplanted doctrine of foreign sovereign immunity.  The district courts that have followed the Government’s command in similar cases decided after the FSIA have not recognized this,  and in that way have contributed to the widely-recognized confusion in this area.
 First and foremost, this Court should recognize that over the past half -century nations throughout the world have abandoned the notion of absolute immunity for foreign sovereigns and have adopted instead a theory of restrictive immunity, under which immunity applies solely to public acts and not to private acts.  See, e.g., Dunhill, 425 U.S. at 703 (1976) (“It is fair to say that the ‘restrictive theory’ of sovereign immunity appears to be generally accepted as the prevailing law in this country.”); Dralle v. Rep. of Czechoslovakia, 17 Int.L.Rep. 155 (Sup.  Ct. of Austria 1950) (“Growing concern for individual rights and public morality, coupled with the increasing entry of governments into what had previously been regarded as private pursuits, has led a substantial number of nations to abandon the absolute theory of sovereign immunity in favor of a restrictive theory.”) (emphasis added).  The Government does not contest that the acts at issue in this case were private acts, which are not protected by restrictive immunity.
The Government also does not contest the following propositions which lead inexorably to the conclusion that if a new doctrine of head of state immunity is to be adopted, it must honor the principle of restrictive immunity as a matter of law, to be adjudicated by courts: (1) the courts of this country have held that foreign officials, including a foreign prince, a former head of state and other prominent dignitaries, are not immune from suits based on their unofficial conduct, without any stated regard for whether they are still in office nor what rank they hold;  (2) the unanimous Supreme Court has held that neither sovereign immunity nor any other immunity prohibits a suit against our head of state if that suit is based on his unofficial conduct;  (3) the Supreme Court has also held that the State Department does not have the power to dictate when comity concerns trump a federal court’s jurisdiction over a case;  (4) the FSIA has transferred to courts the responsibility of resolving foreign sovereign immunity decisions, including those involving “natural” persons; and (5) the community of nations, including Zimbabwe and the United States, have announced earnest support for the proposition that no official, including no head of state, should benefit from immunity if he has committed crimes against humanity, such as the crimes of extra-judicial killing and torture alleged in this case.
The Government tried to show that these propositions are not necessarily dispositive in this case,  but that misses the point.  The law – and the world – has changed a lot since the Supreme Court decided Ex Parte Peru in 1943.  If this Court concludes that a new common law doctrine of head of state immunity has sprung to life after the FSIA, it should define that common law in light of these changes.  In particular, the doctrine must reflect restrictive immunity as a matter of law.  If it does, then the individual defendants in this case are not immune.
 Arguing that the individual defendants have full diplomatic immunity, the Government excerpts provisions of the United Nations Charter.  But the Government fails to note that those very provisions enunciate precisely the theory of functional or restrictive immunity plaintiffs advocate here – representatives of members shall enjoy immunities “as are necessary for the independent exercise of their functions in connection with the Organization.” U.N. Charter, Art. 105 (emphasis added).  The Government also fails to state that this Court has already concluded that this language confers only functional immunity, not full diplomatic immunity.  See U.S. ex rel. Casanova v. Fitzpatrick, 214 F. Supp. 425, 428-431 (S.D.N.Y. 1963) (“Article 105 of the Charter does not purport to nor does it confer diplomatic immunity. . . .  [B]y its very language the immunity is confined to acts necessary for the independent exercise of functions in connection with the United Nations.”) (emphasis added).
 Next, the Government states that section 11 of the Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1419, 59 Stat. 1031 (“U.N. Convention”), was adopted “to give effect” to Article 105, which it undoubtedly was.  Reply at 29.  But the Government then foists upon the Court an interpretation of section 11 that is wholly at odds both with the recognized meaning of Article 105 and, more importantly, with the plain text of section 11 itself. 
In accordance with Article 105’s endorsement of functional immunity, section 11(a) clearly and succinctly states that temporary representatives of members shall receive immunity from legal process only for “words spoken or written and all acts done by them in their capacity as representatives.”  In its effort to convince the Court that section 11 provides absolute immunity, the Government ignores this language, and describes subsection 11(a) as granting “one relatively narrow species of immunity.”  Reply at 29.   The Government then urges the Court to read subsection 11(a) out of the treaty altogether by arguing that subsection 11(g) renders it utterly superfluous.  Id.
Subsection 11(g) is a generic provision applying general diplomatic privileges and immunities that are not “inconsistent” with the specific immunities enumerated in the prior six subsections of section 11.  The Government argues that, in addition to the other miscellaneous privileges and immunities conferred by section 11(g), it also provides absolute immunity from legal process in all circumstances, rendering subsection (a) completely redundant.  This reading is plainly wrong as a matter of the black-letter law of statutory construction.  See generally Circuit City, 121 S. Ct. at 1308 (“Our cases express a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment”) (internal quotations and citations omitted).  Indeed, the Government’s reading of subsection (g) is also “inconsistent” with subsection (a) and therefore contradicts the plain text of subsection (g) itself, which provides that it applies only where not inconsistent with the rest of section 11.
The opening paragraph to section 11 further confirms that this provision confers only functional immunity, and not the absolute immunity sought by the Government.  This sentence, qualifying all seven of its subsections, provides that representatives of members shall enjoy the enumerated privileges and immunities listed in subsections (a) through (g) only “while exercising their functions and during their journey to and from the place of meeting.”  U.N. Convention, § 11.  Thus, incredibly, the Government asks this Court to make both the plain text in section 11’s first sentence and the plain text in subsection (a) utterly superfluous. 
This is not the correct way to read a statute.  Moreover, the Government’s reading does violence to more than just the plain text of section 11.  Other provisions show that when the drafters of the U.N. Convention wished to confer full diplomatic immunity, they did so unambiguously.  Thus, section 19 reads in full:
In addition to the immunities and privileges specified in Section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.
U.N. Convention, § 19.
That language clearly confers “full diplomatic immunity” on the individuals to whom it applies.  Section 11 could hardly be more different -- it limits everything it confers to that period when representatives are “exercising their functions and during their journey to and from the place of meeting;” it confers immunity from legal process only “in respect of words spoken or written and all acts done by them in their capacity as representatives;” and it lists six very specific types of privileges and immunities, plus a generic catch-all that does not apply if it is “inconsistent with the forgoing.”  It simply is not plausible that section 11 can be read to mean precisely the same thing as section 19 despite the fact that its actual text is so vastly different.
Thus, a contemporary commentator concluded that the individuals covered by section 11 “remain subject to jurisdiction of the host state for their private acts,” and that because they “enjoy immunity only for words spoken or written and acts done by them in their official capacity, there is apparently no immunity from civil jurisdiction for nonofficial acts.”  Ling, A Comparative Study Of The Privileges And Immunities Of United Nations Member Representatives And Officials With The Traditional Privileges And Immunities Of Diplomatic Agents, 33 WASH. & LEE L. REV. 91, 108, 110 (1976) (hereinafter “Ling”).
Where, like here, the plain text of a statute is crystal clear, that should be the end of the story.  See, e.g., Circuit City, 121 S. Ct. at 1311 (2001) (“We do not resort to legislative history to cloud a statutory text that is clear.”).  However, since the plain text of the U.N. Convention does not say what the Government wants it to say, the Government resorts to certain reports and testimonials given at the time of Senate ratification of the Convention.   In particular, the Government excerpts statements from hearings and reports to the effect that the convention would give temporary representatives “full diplomatic immunities.”  Reply at 30-31.
These statements cannot trump the plain meaning of section 11.  First, the passages excerpted by the Government do not explain what is meant by the phrase “full diplomatic immunities.”  Generally, immunity from criminal prosecution is considered “[t]he most important consequence of the personal inviolability of diplomatic agents,” and section 11(a) does appear to provide immunity from arrest or detention without much limitation.  Ling, at 108.  Second, even these reports appear to reflect the reality that section 11 did not confer the same level of complete diplomatic immunity provided by section 19, as discussed above.  In the testimony of Ambassador Yost cited by the Government, he writes that those covered by section 11 would be afforded privileges and immunities “substantially equivalent to those accorded diplomats in Washington and New York,” while in the very next paragraph he writes that those covered by section 19 “would be accorded the same privileges and immunities accorded diplomats in Washington.”  S. REP. 91-17 at 8 (emphasis added).  This difference in language may be marginal, but it highlights the more obvious difference in the plain text of the convention.
 Moreover, a prior ratification demonstrates that the Senate was well aware of how to unambiguously confer full diplomatic immunity on U.N. representatives, and it did not do so here.  In 1947, one year after the U.N. Convention was adopted by the U.N. General Assembly, Congress explicitly conferred full diplomatic immunity on permanent representatives to the U.N.  See 22 U.S.C. § 287, Agreement Between The United Nations And The United States Of America Regarding The Headquarters Of The United Nations, Art. V (Section 15) (“Headquarters Agreement”).   Since the Headquarters Agreement was entered into with the clear expectation that the U.N. Convention would be “acceded to by the United States,”  and since the resident representatives to whom the Headquarters Agreement applied were also covered by section 11 of the U.N. Convention, the felt need to confer full immunity on these individuals further proves no one understood section 11 to confer “full diplomatic immunity.”
 Conceivably, section 11’s plain text could be strained to mean that the typical temporary representative receives effectively the same protection afforded a diplomat.  Ordinarily, a temporary representative of the type Ambassador Yost would have had in mind does nothing other than arrive in the host country, attend the U.N.-sponsored function, and then leave.  This representative would be absolutely immune from criminal jurisdiction, and therefore would have “full diplomatic immunity” in the way that term is colloquially understood.  Moreover, for the typical temporary representative, who did nothing other than travel to and from a U.N. meeting and participate in that meeting, the attempt to exert legal process in a civil case might usually be seen as relating to “words spoken or written and all acts done by [him] in [his] capacity as [a] representative[].”  Even under this reading, however, the individual defendants are not immune here.  They were served with Complaints alleging complicity and direct involvement in widescale human rights abuses, and therefore neither one was served “in respect of words spoken or written [or any] acts committed by them in their capacity as representatives.”
Finally, the Government insists that this Court is required to defer to the Government’s “interpretation,” but a pure litigation position articulated in this case is not entitled to such deference.  See, e.g., Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 741 (1996).  Likewise, the Government suggests that other countries also have abandoned section 11’s plain text in the way the Government advocates here, but it cites to no precedent to support this point.
In any event, international custom should only cement this Court’s denial of immunity in this case.  This case involves the extrajudicial murder and torture of innocent individuals, based on their political beliefs.  The Government is therefore asking the Court to adopt an interpretation of the U.N. Convention that undermines the highest norms of international law that prohibit this conduct.  Since 1969, international law has recognized that these and a very small number of other norms are so universally accepted and obligatory that they should be characterized as jus cogens -- meaning specifically that no treaty will be respected as valid under international law if it contravenes them.  Vienna Convention on the Law of Treaties, Art. 53 (1969) (“Vienna Convention”).  Accordingly, this Court should not agree to strain the plain text of section 11 beyond all recognition solely in order to accomplish a result that may well be invalid under the Vienna Convention, and that at a minimum erodes the universal commitment to prohibiting the abuses at issue here.  
 Echoing defendant Mugabe’s press office, which called the service of process in this case a “non-event,”  the Government asks this Court to declare the service of the Complaint in this case “a nullity.”  Reply at 3, 34.  It argues that the individual defendants were “inviolable” as a result of the two different immunities the Government asserts on their behalf.  Reply at 32-34. 
 As shown above, these immunities do not apply.  But even if they do, the Government has not cited to a single authority demonstrating that these very uncertain substantive immunities necessarily entail the additional, procedural immunity from even being served with process in a suit against a private organization.  The Government relies on the word “inviolability,” but never explains what it really means.  Its principal meaning would seem to be that the individual’s physical person must be free from arrest or detention, a fact plaintiffs do no dispute.  See Ling, at 108.  In any event, the Government refrains from expressly arguing that ZANU-PF was not served.  Law and justice cry out to this Court to recognize that service as a fact, not a “nullity.”
Dated: New York, New York
 July 2, 2001
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