Tsvangirai acquitted in trial that should never have been held
Journalist Lloyd Mudiwa used to report from Zimbabwe's courts. But last week's acquittal by a court in Harare of the Opposition leader, Morgan Tsvangirai, on treason charges took him by surprise.
The trial, like the key state witness, was never short of surprises.
The outcome was also astonishing. Not because the court got it wrong. But because, with a beneficiary of the country's controversial and often bloody land reform for judge, most observers had expected the court to succumb to pressure from the government, as usual in politically sensitive cases.
The leader of Zimbabwe's main opposition party, Morgan Tsvangirai, was acquitted last Friday of high treason for allegedly plotting to kill his political rival, President Robert Mugabe, ahead of the country's presidential elections in 2002.
The judgment was originally due to be handed down on July 29th. Two weeks before, information emerged that the judge intended to convict, without properly consulting his two lay assessors. A week later, the judgment date was suddenly and indefinitely deferred.
Analysts say something changed profoundly in that week before the postponement.
One possibility is that other African countries, such as South Africa and Nigeria, may have been briefed on the verdict in advance and reacted with alarm. Another less likely possibility is that the lay assessors - the equivalent of a jury - played a pivotal role.
Describing the judgment in a telephone interview from his Harare home, Tsvangirai said to me: "At that moment, I had conflicting emotions. I thought of myself, my family and the bigger objectives that all Zimbabweans face - that the people's enemies must not win."
As court reporter for the Daily News, Zimbabwe's only privately owned daily newspaper, since banned by the government, I covered most of the 18-month trial. After hearing the state's case, including evidence from its main witness, Ari Ben-Menashe, a Canada-based Israeli political consultant, one wondered why Tsvangirai was even charged.
To prove its case, the prosecution relied on evidence from the suspect witness, and a grainy video and inaudible audio recordings of meetings he held with the opposition leader in Montreal, where prosecutors had claimed Mugabe's assassination was discussed.
Not only a joker, Ben-Menashe refused to co-operate with the defence and the court, and was plainly abusive. He tried everything from pleading exhaustion to refusing to produce documents and to testify on a contract he had with the Zimbabwean government.
Under cross-examination, his answers were punctuated with "I don't remember", "I have no idea" and occasional outbursts. At one stage, George Bizos, once Mandela's lawyer and who was leading the defence team, asked Ben-Menashe how many times he had answered "I don't know" and he responded "I don't know", drawing laughter from the gallery.
Ben-Menashe another day caused the premature adjournment of the proceedings after personally attacking Bizos and Tsvangirai. The abuse continued throughout the trial despite repeated reprimands from High Court Judge President, Justice Paddington Garwe.
Losing patience, Garwe at one stage cautioned Ben-Menashe: "It's contemptuous of the court to disobey the court's rules and I remind the witness to conduct himself in a manner that respects the decorum of this court." Within minutes, Ben-Menashe was at it again.
While some observers have trashed claims that the judiciary is independent, saying the whole trial was a charade, Tsvangirai remains cautiously optimistic after the verdict: "It only shows that the judiciary can be salvaged, but it needs to be redeemed now. Any further delay may do irreversible damage to the judiciary's integrity and it needs to be preserved by showing proper respect."
Comments following the judgment suggesting the judge had erred, made by the Minister of Justice, Patrick Chinamasa, were tantamount to contempt of court, he said.
"This is one case that should never have been brought to trial in the first place," adds Paul Themba-Nyathi, the opposition Movement for Democratic Change's (MDC) spokesman. "That it was dragged before the courts shows the state's ability to get the courts to do its bidding. The courts should not be rewarded for doing what they should have done in the first place."
A constitutional law expert, Dr Lovemore Madhuku, rationalises: "It was a very political judgment. They didn't want to give Tsvangirai a Nelson Mandela-like status by imprisoning him.
"They didn't want to turn him into a hero by giving him martyrdom."
Madhuku notes that the government has used the case to deplete MDC funds, disrupt Tsvangirai from his party work, and the acquittal as evidence that it is a democracy.
"A guilty verdict, which carried a possible death sentence, would have placed huge pressure on Mugabe at a time when he is trying to bolster African and international support," says Brian Kagoro, chairman of Crisis in Zimbabwe Coalition, a body of pro-democracy groups.
Tsvangirai, however, still faces a separate set of treason charges arising from mass anti-government protests his party organised last year, in which the 52-year-old former trade unionist is accused of urging Zimbabweans to engage in acts of public violence and to oust the long-serving 80-year-old Mugabe.
Tsvangirai denies the charge, saying the demonstration was a public display of anger at the political and social problems in the country.
He has called on all Zimbabweans to campaign for free and fair elections next March, predicting "as we enter the last lap, the endgame is near".
But, forecasting a rigged general election in March, Madhuku adds a warning: "Tsvangirai is free, but there is no free space for him to move. As long as there is political violence and repressive legislation, his party has no freedom of movement. There is not much his party can do because of the uneven playing field."
Lloyd Mudiwa is now a freelance journalist and former editor of the Amnesty Ireland magazine