US embassy cable - 03HARARE1464

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 
 
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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 
------------------ 
 
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 
 
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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: 
-------- 
 
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