THE state has applied to the High Court for permission to bring a supplementary indictment against Movement for Democratic Change leader Morgan Tsvangirai, currently on tr
ial for treason, in a move described by lawyers as baffling.
Legal experts say the latest development in the Tsvangirai trial saga exposes the weakness of the state’s evidence in its bid to convict the MDC leader on allegations of trying to assassinate President Mugabe.
Tsvangirai’s co-accused, the MDC’s secretary-general Welshman Ncube and agriculture spokesperson Renson Gasela, were in August acquitted by Judge President Paddington Garwe in a case that has attracted international attention.
The Zimbabwe Independent heard this week the state wanted to change the indictment to supplement the video and audio evidence supplied by Canadian lobbyist Ari Ben-Menashe which has been described as grainy and inaudible.
Efforts to get confirmation of the intended amendment from the Attorney-General’s office were unsuccessful yesterday. However, Tsvangirai’s lawyer Innocent Chagonda on Wednesday confirmed the state’s filing of an application to bring supplementary evidence.
“We are aware that the state filed a notice in court to amend the indictment but I cannot say much at the moment,” said Chagonda.
The case should have restarted on Monday with Tsvangirai being put to his defence but was postponed to October 27.
Legal sources said the manoeuvre by the state was potentially embarrassing as it exposed the possible failure of the first indictment to secure conviction in the treason trial using the taped evidence. The state closed its case on June 26.
While Chagonda could not provide details of the amendment, sources at the Attorney-General’s office yesterday said the state wanted to move the goal posts and allege that Tsvangirai attended a meeting where the issue of a transitional government was discussed. The state would use this to bolster its argument that Tsvangirai’s attendance at the meeting was tantamount to wanting to eliminate Mugabe.
“Since the state has already closed its case, in the event of the court allowing the amendment to the indictment, it means the state would have to retrace much of its footsteps,” a legal source said. “This might also entail re-calling Ben-Menashe and other witnesses.”
A senior lawyer in Harare yesterday said the state’s action would amount to applying double jeopardy.
“This is baffling. A case should either fall or stand on the basis of evidence presented when the state says it has closed its argument,” the lawyer said.
Tsvangirai, Ncube and Gasela denied the charge when the trial opened in the High Court in February. The three MDC leaders applied for a discharge when the state closed its case in June saying the prosecution had failed to prove a prima facie case against them.
The court acquitted Ncube and Gasela but ruled that Tsvangirai had a case to answer. The state case revolved around the secret recording by Ben-Menashe of meetings held with the MDC leaders in Montreal and London. The evidence-in-chief was the tape made on December 4 2001, three months ahead of a disputed presidential election that pitted Tsvangirai against Mugabe, and which Mugabe won.
It was made using hidden surveillance cameras in the offices of Ben-Menashe whom the MDC say they approached to do promotional work for them in North America.
On the tape, which Ben-Menashe gave to the Zimbabwe authorities, Tsvangirai is alleged to have requested the consultant’s help in “eliminating” Mugabe and organising a coup d’etat to oust his government.