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: -------------- ¶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 SIPDIS 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