Tsvangirai’s lawyers call for his discharge

Lawyers for Movement for Democratic Change leader Morgan Tsvangirai called for his discharge concentrating on the two-witness rule which says that to convict someone on treason charges there must be at least two credible witnesses whose stories independently corroborate each other and describe an overt treason plot.

Lead lawyer George Bizos emphasised that you could not have only one witness. You could not have two witnesses where at least one was not credible, or whose stories contradict each another.

Tsvangirai was charged with plotting to assassinate President Robert Mugabe. Canadian businessman Ari Ben Menashe was the key witness.

He was charged together with MDC secretary-general Welshman Ncube and legislator Renson Gasela.

Ed: Tsvangirai was later acquitted of the charges, but the trial had done him a lot of damage.

Full cable:

Viewing cable 03HARARE1464, DEFENSE ARGUES FOR DISCHARGE – TSVANGIRAI TREASON

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C O N F I D E N T I A L SECTION 01 OF 02 HARARE 001464

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR J. FRAZER

LONDON FOR C. GURNEY

PARIS FOR C. NEARY

NAIROBI FOR T. PFLAUMER

E.O. 12958: DECL: 12/31/2013

TAGS: PGOV PHUM PINR ZI

SUBJECT: DEFENSE ARGUES FOR DISCHARGE – TSVANGIRAI TREASON

TRIAL WEEK FIFTEEN

REF: A. HARARE 1322

¶B. HARARE 1256

¶C. HARARE 1149

¶D. HARARE 946

¶E. HARARE 568

¶F. HARARE 484

¶G. HARARE 360

¶H. HARARE 313

¶I. HARARE 250

Classified By: Political Officer Audu Besmer for reasons 1.5 b/d

Summary:

——–

¶1. (C) Returning from a two-week break, on July 14, defense

lawyers began arguments for dismissal by concentrating on a

rule that to convict on treason charges there must be at

least two credible witnesses – which the state did not

satisfy given contradictions in Ben Menashe’s testimony and

the fact that only one witness, Ben Menashe, was present at

the Montreal meeting. The prosecutor responded that a

conspirator is liable for the crimes committed by his

co-conspirators – hence Ncube and Gasela would be liable for

Tsvangirai’s actions in Montreal. While the defense

SIPDIS

presented a strong factual and legal case, it is highly

unlikely that Justice Garwe will dismiss charges against

Tsvangirai. More likely, he might simply reserve judgment on

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dismissal, or deny it altogether, and go ahead with the trial

and the defense presenting its case. End Summary.

Two Witnesses Rule

——————

¶2. (U) Returning from a two-week break, on July 14, defense

lawyers began their arguments for dismissal. George Bizos

concentrated on a rule that to convict on treason charges

there must be at least two credible witnesses who’s stories

independently corroborate each other and describe an “overt”

treason plot. Bizos emphasized that you cannot have only one

witness; you cannot have two witnesses where at least one is

not credible, or who’s stories contradict each another.

Bizos argued that charges against MDC Secretary General

Welshman Ncube and MDC Shadow Minister of Agriculture Renson

Gasela should be dismissed because they were only present at

the London meeting, at which meeting only one witness, Ari

Ben Menashe, was present.

¶3. (U) Bizos also argued that in accordance with Roman Dutch

law there must be proof of some form of conspiracy, in this

case that Tsvangirai incited Menashe and his colleagues to

commit treason. Bizos argued that in this situation it

appears as if Menashe was the inciter rather than incitee.

Credible Witness?

—————–

¶4. (U) Bizos went on to highlight the various ways that

Menashe,s testimony had contradicted later witnesses as well

as his own testimony. He analyzed Ben Menashe,s use of the

word “elimination” arguing that Menashe initiated its use in

the Montreal meeting. He said that Menashe failed to include

vital evidence such as information on how the assassination

would be carried out. He argued that it is essential, and

that the state had failed to tell the court the exact words

used in the meetings.

¶5. (U) On July 15, defense lawyer Chris Andersen argued that

the state’s case depends on the credibility of Ben Menashe

and that Menashe was not an impartial witness. On the

contrary, Ben Menashe had an interest in the case, as

evidenced by the fact that he received more US$615,000 from

the GOZ, and his contract with the government was renewed

after he gave evidence.

State Argues Against Discharge

——————————

¶6. (U) On July 16 and 17, Acting Attorney General Bharat

Patel argued that a conspirator is liable for the crimes

committed by his co-conspirators. Thus Ncube and Gasela,

though not present at the Montreal meeting, were nevertheless

liable for the treason Tsvangirai allegedly plotted there.

Patel also argued that the testimonies of Ben Menashe and

Tara Thomas were credible and sufficient to require

Tsvangirai, Ncube and Gasela to argue their defense. Patel

SIPDIS

stated that regardless of problems with the transcript of the

audio from the videotape, it at least showed the court that a

second meeting did occur and that Ben Menashe, Tara Thomas

and Tsvangirai were present at the meeting–satisfying the

two-witness rule.

Comment:

——–

¶7. (C) The state did not substantiate its claims with many

clear examples, and while the defense presented a strong

factual and legal case, which ordinarily would warrant

dismissal, it is highly unlikely that Justice Garwe will

dismiss charges against MDC President Morgan Tsvangirai. It

is possible that the judge would discharge Gasela and Ncube,

given that they were not present in Montreal, however, more

likely that he might simply reserve judgment on dismissal, or

deny it altogether, and go ahead with the trial and the

defense presenting its case. End Comment.

SULLIVAN

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