S v Tsvangirai (HH 169 of 2004) [2004] ZWHHC 169 (14 October 2004)

HH 169-2004 CRB 224/02 THE STATE versus MORGAN TSVANGIRAI HIGH COURT OF ZIMBABWE GARWE JP HARARE, 3 February 2003 – 26 February 2004 and 15 October 2004 Assessors: Mr M. Nyandoro and Mr J. Dangarembizi Mr B Patel with Mr Musakwa and Mr Nemadire, for the State Adv. G. Bizos with Adv. C. Andersen SC and Adv. E. Matinenga, for the Accused GARWE JP: The accused in this case is charged with the crime of high treason it being alleged by the State that he approached a company called Dickens and Madson carrying on business in Canada and requested the company to arrange the assassination of President Mugabe and the staging of a military coup. At the commencement of trial the particulars of the charge against the accused were that:- 1. On 22 October 2001 at Heathrow Airport in the United Kingdom the accused requested Ari Ben Menashe of Dickens and Madson to organize the assassination of President Robert Gabriel Mugabe and to arrange for a military coup against the Government of Zimbabwe. 2. On 23 October 2001 and at Heathrow Airport, London, accused 2 faxed to Dickens and Madson a memorandum of understanding which in actual fact was cover for the unlawful plot to overthrow the Government of Zimbabwe. 3. On 3 November 2001 and at Royal Automobile Club, London, in the United Kingdom accused one requested Ari Ben Menashe of Dickens and Madson to organize the assassination of President Robert Gabriel Mugabe and to arrange for a military coup against the Government of Zimbabwe. On the same date HH 169-2004 Dickens and Madson received from BSMG a company representing accused persons US$97,400 as initial deposit previously promised, constituting fees for the plot to carry out the assassination of President Robert Gabriel Mugabe and the overthrow of the Government of Zimbabwe. 4. On 4 December 2001 and at Dickens and Madson offices, in Montreal, Canada, accused one requested members of Dickens and Madson to arrange for the assassination of President Robert Gabriel Mugabe and the carrying out of a military coup against the Government of Zimbabwe. Following the acquittal of the 2nd and 3rd accuseds at the close of the State case, the particulars of the charge against the present accused were amended by the State to read as follows: 1. On 22 October 2001 and at Heathrow Airport in the United Kingdom the accused person requested Ari Ben Menashe of Dickens and Madson to organize the assassination of President Robert Gabriel Mugabe and to arrange for a military coup against the Government of Zimbabwe. 2. On 3 November 2001 and at Royal Automobile Club, London, in the United Kingdom accused requested Ari Ben Menashe of Dickens and Madson to organize the assassination of President Robert Gabriel Mugabe and to arrange for a military coup against the Government of Zimbabwe. At a later stage Dickens and Madson received from BSMG a company representing accused persons, US$97,400 as initial deposit previously promised, constituting part of the fees for the plot to carry out the assassination of President Robert Gabriel Mugabe and the overthrow of the Government of Zimbabwe. 3. On 4 December 2001 and at Dickens and Madson offices in HH 169-2004 Montreal, Canada, accused person held a meeting with members of Dickens and Madson as well as a Mr Simms also known as Schuur and Mr Rupert Johnson at which the elimination of Present Robert Mugabe and the setting up of a transitional Government in furtherance of the aforesaid plot were discussed. The accused pleaded not guilty to the charge. He also denied the particulars of the charge as itemized. THE EVIDENCE The following is common cause or at least not seriously in dispute. Dickens and Madson is a company incorporated in Canada and carrying on business in Montreal, Canada. The Movement for Democratic Change popularly referred to as the MDC is an opposition political party in Zimbabwe. The discussions between the MDC and Dickens and Madson that have given rise to the present allegations against the accused were facilitated by one Rupert Johnson. Rupert Johnson was fairly well known to Renson Gasela, the MDC Member of Parliament and Shadow Minister of Agriculture. Mr Gasela first came to know Mr Johnson in 1992 when Mr Johnson won a tender to supply grain to Zimbabwe following a drought in the country. At the time Mr Gasela was the general manager of the Grain Marketing Board. Sometime in 2001 Mr Johnson also made contact with Dickens and Madson. Thereafter Rupert Johnson arranged a meeting between the MDC and Mr Ben Menashe at the Heathrow Hilton Hotel, London, on 23 October 2001. Following that meeting a decision was taken by Dickens and Madson to arrange another meeting with the accused. That meeting took place at the Royal Automobile Club in London on 3 November 2001. The discussions that took place during that meeting were audio-taped by Tara Thomas, an assistant to Mr Menashe. The audio tape produced was of poor quality but a transcript was produced by Tara Thomas and Elizabeth Boutin, also HH 169-2004 employed by Dickens and Madson. Mr Menashe eventually took the audio tape, transcript and disk and handed these over to Air Vice- Marshal Mhlanga in Harare on 23 November 2001. It was on that date that Mr Menashe advised the authorities in Zimbabwe of a request allegedly made by the accused and his colleagues for Dickens and Madson to arrange the assassination of the President and the carrying out of a military coup. A decision was made that further evidence of the request be collected. A sum of US$30,000 was provided by the Government of Zimbabwe for this purpose. A third meeting was then convened at the offices of Dickens and Madson in Montreal on 4 December 2001. That meeting was video taped. Following this a sum of US$200,000 was transmitted to Dickens and Madson on 14 December 2001. A formal agreement was then entered into between Dickens and Madson and the government of Zimbabwe on 10 January 2002 in terms of which the former was to provide public relations consultancy services and attract investment. That contract was subsequently renewed in March 2003. What is in dispute in this case is the nature of the discussions that took place at each of the three meetings as well as the role played by Rupert Johnson. Rupert Johnson has not availed himself to give evidence and indications are that he is somewhere in the United Kingdom. The State on the one hand is saying the accused requested Dickens and Madson to arrange the assassination of the President and the staging of a military coup and that it was the MDC that sent Rupert Johnson to arrange the first meeting in London during which the request was allegedly made. The accused denies this and says Rupert Johnson approached the MDC indicating that he was a director of Dickens and Madson and that his company was able to do lobbying work on behalf of the MDC in North America and to raise funds for the party. The State called a number of witnesses. These were Mr Ben Menashe, Tara Thomas, Air Vice-Marshal Robert Mhlanga, Bernard HH 169-2004 Schober, Chief Superintendent Moses Magandi, Senior Assistant Commissioner Mutamba, Retired Brigadier Happyton Bonyongwe, Air Marshal Perence Shiri, Constantine Musango, Tineyi Nyawasha and Edward Tamukaneyi Chinhoyi. The defence called the accused, Mr Welshman Ncube, Mr Renson Gasela and Mr Giles Mutseyekwa. The evidence led during the trial was very lengthy. The trial spanned a period of over a year. A detailed summary of the evidence given by the various witness has been prepared and is attached to this judgment as Annexure ‘A’. CREDIBILITY OF WITNESSES Mr Ari Ben Menashe He is the main witness for the prosecution as it was him who played the leading role in the meetings that took place with the accused and also arranged the recording of the meeting of 4 December 2001 in Montreal, Canada. The defence attacked his reputation during cross-examination. Various allegations made in various press articles and publications attacking his general reputat