DEFENSE ARGUES FOR DISCHARGE - TSVANGIRAI TREASON

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:
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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

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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
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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?
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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
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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

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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:
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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