The State v Morgan Tsvangirai

Morgan Tsvangirai, leader of the opposition Movement for Democratic Change (MDC) in Zimbabwe, was charged with high treason. The State alleged that he approached Dickens and Madson, a Canadian company, and requested them to arrange the assassination of President Mugabe and stage a military coup. Three meetings were alleged: (1) 22 October 2001 at Heathrow Airport, London; (2) 3 November 2001 at the Royal Automobile Club, London (which was audio-taped but the recording was of poor quality); and (3) 4 December 2001 at Dickens and Madson's offices in Montreal, Canada (which was video-taped). The contact with Dickens and Madson was facilitated by Rupert Johnson. Following the meetings, the MDC paid US$97,400 to Dickens and Madson. Ari Ben Menashe of Dickens and Madson later reported the alleged plot to Zimbabwean authorities on 23 November 2001. The government paid Dickens and Madson US$30,000 to gather additional evidence, and subsequently entered into a consultancy contract worth US$615,000 with the company. The second and third accused (Welshman Ncube and Renson Gasela) were acquitted at the close of the State case.

• Whether the accused requested Dickens and Madson to arrange the assassination of President Mugabe and organize a military coup
• Whether there was sufficient evidence of the alleged overt acts of treason
• Whether the evidence of Ari Ben Menashe and Tara Thomas as suspect witnesses was credible and reliable
• Whether discussions about transitional arrangements following elimination of the President constituted treason in the absence of proof of incitement or conspiracy
• The admissibility of poor quality audio and video recordings
• Whether the charge was properly framed and whether amendments to the charge were prejudicial
• Application of the two-witness rule in treason cases
• The requirement of proof beyond reasonable doubt in treason cases

The accused was found not guilty of high treason and discharged.

In a treason case based on alleged incitement to assassinate a head of state and organize a coup: (1) witnesses with substantial financial interests in the outcome are suspect witnesses whose evidence must be treated with caution and requires corroboration; (2) the State must prove each alleged overt act beyond reasonable doubt; (3) mere discussions about what might happen following the illegal removal of a president, without proof of actual incitement or conspiracy, do not constitute treason; (4) for treason by incitement, there must be clear evidence of a request or communication intended to influence another to commit the treasonous act; (5) poor quality audio/video recordings may be admissible but their evidential weight is limited, especially where significant portions are inaudible; (6) where the evidence creates a reasonable doubt, that doubt must be resolved in favour of the accused; (7) in treason cases, evidence of overt acts not alleged in the indictment cannot be used to secure a conviction unless relevant to prove acts that were alleged; and (8) a charge alleging "discussions in furtherance of a plot" is insufficient where no prior plot has been proved and no incitement or conspiracy is alleged regarding the discussions themselves.

The court made several important observations: (1) It commented on the vagueness that can be associated with treason charges and how the crime can be ill-defined. (2) The court noted that modern technology exists to enhance poor quality audio recordings, and questioned why the State did not utilize such technology. (3) The court observed that it was improper for the State not to have disclosed the audio transcript to the defence, even though it was incomplete, as documents are relevant not only when they support the prosecution but also when they contradict prosecution witnesses. (4) The court commented on the role of "Mr Simms" who posed as an American government representative at the Montreal meeting as part of the "pretence," noting that Ben Menashe's claim not to know his identity or whereabouts was "highly improbable." (5) The court noted that it may be a moot point whether a charge alleging a request to organize assassination could properly be amended to allege "discussions in furtherance of a plot." (6) The court observed that Ben Menashe exhibited contemptuous behavior in court despite warnings, though this was partly attributable to unnecessarily lengthy and sometimes confusing cross-examination. (7) The court commented that the decision to use the relatively unknown Dickens and Madson rather than the established BSMG firm raised suspicion, and that the explanation for transferring US$50,000 from a personal account was unsatisfactory.

This case is significant in Zimbabwean criminal law as it clarifies the elements required to prove high treason, particularly regarding the distinction between mere discussions and actual treasonous acts. It emphasizes that discussions about potential illegal removal of a head of state, without proof of incitement or conspiracy, do not constitute treason. The case also establishes important principles regarding: (1) the treatment of witnesses with financial interests as suspect witnesses requiring corroboration; (2) the admissibility but limited weight of poor quality audio/video evidence; (3) the requirement that charges, particularly for serious offences like treason, must be clearly framed and that prejudicial amendments should not be allowed; (4) the distinction between incitement, conspiracy, and mere discussion in the context of treason; and (5) the strict application of the beyond reasonable doubt standard in treason cases. The case became politically significant as it involved the leader of Zimbabwe's main opposition party and raised questions about the use of treason charges against political opponents.