Posted on 02/12/2004 9:06:46 AM PST by Clive
In the High Court yesterday, Judge Paddington Garwe admitted into evidence key documents from a legal action instituted by the MDC against Ari Ben Menashe currently underway in Canada. The documents completely contradict the evidence given earlier in the trial by Ben Menashe, the Canadian businessman who claims he was contracted by Tsvangirai to assassinate Robert Mugabe.
When the trial last adjourned on 28 January, defence advocate George Bizos submitted these documents to the court, asking for them to be admitted as part of Tsvangirai's defence. State lawyers objected, and Judge Garwe said he would issue a ruling on the documents when the trial resumed yesterday. The documents absolutely shatter the already shaky evidence given by Ben Menashe.
The evidence Ben Menashe gave to the court when he appeared in person last year was that the assassination of Mugabe was discussed during EACH of three meetings at which both he and Tsvangirai were present, on their own and with others. The meetings took place in London on 22 October and 3 November 2001, and in Montreal on 4 December of that year.
When Tsvangirai was indicted, the State said there were audio tapes of the first two London meetings, and a video tape of the third Montreal meeting - all of which would show that an assassination plot was discussed in ALL the meetings. The audio tapes of the London meetings were never produced in court - the prosecutors said they were inaudible.
With difficulty, defence lawyers eventually forced the Attorney General to produce the transcripts of the audio tapes, which were full of gaps, and which showed no evidence of any assassination plot being discussed. Indeed the transcripts were entirely consistent with what Tsvangirai and his colleagues had said all along, namely that the meetings were to discuss a political consultancy agreement, not an assassination plot.
Ben Menashe was forced to claim that the discussions regarding the "plot" were not contained in the transcripts and must have taken place during the "gaps" in the transcript.
The video tape of the third meeting was grainy, of poor quality, and itself barely audible in places. It also showed signs of being doctored. At that meeting, Ben Menashe repeatedly used the word "elimination" and spoke of the "agreement" that he alleged had been reached in the previous two meetings.
In evidence he alleged that the "agreement" reached in the first two meetings in London was to assassinate Mugabe, because nowhere in the video tape of the Montreal meeting is there any discussion regarding an assassination plot.
In other words the third meeting in Montreal does not stand alone evidentially, and a conviction for treason is entirely dependent on the State being able to prove that both the first two meetings had a sinister purpose.
Accordingly, Ben Menashe's verbal assertion that the first two meetings had a sinister purpose is absolutely crucial if the State is to prove Tsvangirai guilty of treason.
In April 2003 the MDC began legal proceedings in the Superior Court in Montreal, where Ben Menashe's company Dickens and Madson is based, to recover US$97,600 it paid to Dickens and Madson for consultancy services which were never provided.
In their reply to the MDC's court documents filed in October 2003 (called a "contestation"), Dickens and Madson and Ben Menashe say that "very shortly after Plaintiff (the MDC) contacted Defendant (Ben Menashe and Dickens and Madson) and entered into the contract, it became apparent...that the purpose of the meeting was to seek the overthrow by violence of the Government of Zimbabwe".
The contract, accepted by Ben Menashe in his "contestation" document as being legitimate, was signed on 23 October 2001, AFTER the first meeting in London. Therefore, by Ben Menashe's own admission in his legal submission to the Montreal court, assassination was not discussed at the first meeting - in complete contradiction of his evidence given in the criminal trial that the assassination plot was discussed at the first meeting.
The first tranche of payments to Dickens and Madson was paid on 1 November 2001. A second tranche was accepted by Ben Menashe's company on 8 November, shortly AFTER the second London meeting.
In the High Court in Harare, Ben Menashe claimed that the contract was merely "a cover" for the assassination plot. Yet in the document submitted to the Canadian court, Ben Menashe contests the MDC's right to recover the money on the basis that the contract was a legal agreement. And he accepted a second payment of money AFTER the second London meeting, at which, he claimed in Harare, the assassination of Mugabe was discussed.
The inference contained in Ben Menashe's "contestation" document is that when the contract was entered into it had an innocent purpose and that likewise when he received the money, pursuant to the contract, he was entitled to hold on to the money because it was a lawful contract.
The final inference contained in his "contestation" is the allegation that because it was the MDC that was in breach of the innocent contract (not him), that is to do political consultancy work, he is, as a result, not obliged to return the money.
Furthermore, in Ben Menashe's "contestation" document filed in Montreal, he again contradicts the evidence he gave in the Zimbabwean criminal court. He claims that that the second meeting in London on the 3 November 2001 was videotaped, and that the tape was "produced as evidence" in the criminal trial, something that never happened. The only video tape ever produced was of the third meeting in Montreal.
The nub of the matter is that Ben Menashe's evidence in the treason trial was that the "contractual" discussions were sinister from the very first meeting in London.
In his determination to hold on to the money paid to him by the MDC, he has now driven a horse and carriage through his own evidence in the treason trial, by stating in the Canadian courts that the first two meetings were entirely innocent and that he only "discovered" the MDC's nefarious intentions later.
Given that the third meeting does not in itself provide evidence of the "plot", the State case is now in tatters, not that there was any case in the first place.
An honourable, professional Attorney General would now admit that this is now "caedit questio" (the end of the trial) and withdraw proceedings against Tsvangirai. However given the fact that this trial has everything to do with politics and nothing much to do with law or justice, a withdrawal of charges is unlikely.
Chronology
22 October 2001: first meeting in London.
23 October 2001: contract signed
1 November 2001: $50 000 paid to Dickens & Madson
3 November 2001: second meeting in London
8 November 2001: $22 196 paid to Dickens & Madson
4 December 2001: third meeting in Montreal
click here to download MDC's Montreal Court Motion
click here to download Ben Menashe's Montreal Court reply
Amazing that these transcripts were released.
Whatever the outcome of the trial in Zimbabwe, it will be a policital outcome, not a legal one.
Even if Tsvangirai finally gets acquitted, it will be because Mugabe had directed that it be done.
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