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Tsvangirai’s case only an exception

By Chido Makunike

THERE are many fascinating things that reveal where Zimbabwe is at this moment in its progression from the acquittal of opposition Movement for Democratic Change (MDC) leader Morgan Tsvangi

rai on high treason charges last week.


It is interesting that there was such overwhelming surprise at the acquittal. While there were very few people who found the case against Tsvangirai by the state at all convincing, it seems clear that most expected that a conviction would be wrung from the embarrassingly thin and shoddy case anyway.


At home and abroad, there are many who think the government of President Robert Mugabe is so frightened of the MDC and its leader, so desperate to hold on to power at any cost and so vindictive that it would push for or force a conviction even if the legal case did not support it.


If the case’s post-mortem for the government and what it suggests should be its strategy from here on is to be conducted by mature minds rather than self-serving hot-heads, this would seem to suggest that the government has a lot of work to do to change its image.


The acquittal could help to launch that effort, but one example of perceived judicial fairness and independence on its own will hardly change a poor image created over years of public relations bungling by the government. Nor is that effort helped by the hasty, immature statements of officials of the calibre of Justice minister Patrick Chinamasa and propaganda chief Jonathan Moyo.


While they could not have been expected to be happy about the verdict, their poorly expressed grudging churlishness at the acquittal just emphasised their pettiness. These two more than any other officials may have felt pressure to sound “tough” in a singing for one’s supper way, but however much one may want to blurt what one believes will please one’s mercurial master, there are times when a little self-respect is called for.


Whether the judgement proves the independence of Zimbabwe’s judiciary or not will be debated ad-infinitum. But if there were grave doubts about this, surely they cannot be dispelled by a ruling in one case.


The doubts did not arise from any one incident, but were the result of a perceived pattern of behaviour by the judiciary over several years. Similarly, therefore, those doubts will only be fully dispelled by those who harbour those doubts by a pattern showing independence over time.


On its legal merits, this was a poor case to be a fair test of the judiciary’s independence. The case against Tsvangirai was so poor and unconvincing, Ari Ben-Menashe such a clown of a star witness for the prosecution that conviction would only have brought ridicule upon the court and the government.


So even if the court were in the pockets of the government, in this case acquittal was not only the correct thing to do based on the poor nature of the evidence, it was also the politically smart thing to do. If the government had the power and inclination to lean on the judge and force a conviction as many had thought would happen, far more would have been lost for the government politically and internationally than would have been gained from neutralising Tsvangirai.


One can therefore conceive of a situation where if the judiciary does the executive’s bidding, in this example both could clearly see that deciding the case on its legal rather than cynical and expedient political merits was wiser than in a case where political ends could be achieved while at the same time having a semblance of legal correctness. It wasn’t possible to do that here. Acquittal was really the only option based on the evidence.


Interestingly, political influence on the judiciary is presumed to have meant the Mugabe government forcing a conviction. If the foregoing arguments are valid, then another kind of political interference would be one in which even if the judge had been convinced there was enough evidence for a defensible conviction, the government would lean on him for an acquittal, knowing that few would believe the conviction was fair!


In that scenario Tsvangirai would have been out of circulation, but at the cost of the Mugabe government being even more ostracised and ridiculed worldwide than it is now! It is not at all inconceivable that an embattled government with few genuine friends that knows it is not winning in the international image stakes might “interfere” for an acquittal, just as it in other cases might interfere for conviction!


This was always a showcase anyway. There are countless examples of the government arresting and persecuting citizens using the police and the legal system, even when the “evidence” is non-existent, to make a political point and soften up the target. Even when acquittal before the courts is a foregone conclusion because of the absence of such evidence, the whole process of being arrested, spending time in jail and being brought to court before the case is inevitably thrown out is enough to soften and intimidate, and many times it works.


So the judiciary is not just used by the executive in the sense of the former being told by the latter what judgements to make, but by the whole charade of having to hear cases that should have never got to court in the first place.


For Tsvangirai, the foolish naiveté that got him mixed up with a slime ball like Ben-Menashe, who he should have suspected was acting on behalf of the government, almost gave his itching foe the opportunity to find an excuse to hang him! The case has been emotionally and politically draining on him.

The MDC has definitely lost a lot of momentum over the last couple of years, and part of that is due to the time and energy it had to put into legally defending its leader. For the government, that could have been one of the main reasons for prosecuting the case despite its legal thinness!


Confuse, divide them and tie up their time and resources in the courts for two years while weakening them in all kinds of other ways so that even after the inevitable acquittal, which I think was obvious from the time the giving of evidence was wound up last year, they are so far back the legal judgement doesn’t matter all that much anyway!


Has Tsvangirai got a political reprieve from his acquittal? That depends to a great extent on him. He should now know that his foe will look for any excuse to trip him up and he must be more careful in what he does and says, who he meets and so on.


While he has been acquitted in court, there will continue to be many other extra-judicial means of keeping the heat on him. There are many ways to skin a cat and just because the legal one has failed this one time does not mean other means won’t work!


The second treason charge against Tsvangirai, for the failed attempted “final push” demonstrations against Mugabe last year, will have been considerably weakened by this acquittal; and by Paddington Garwe, a judge considered to be close to the government rather than judicially or personally independent. The pursuance of that second charge on even thinner evidence than the first charge that relied on the government’s buffoon witness Ben-Menashe only succeeds in making the government look as spiteful and petty as some of its immature ministers.


Speaking of which, I had to laugh at Chinamasa’s suggestion that the government may appeal the acquittal. Part of being effective in politics is knowing when to just be quiet, than to make yourself look ridiculous by forcing your foot in your mouth out of empty bravado.


*Chido Makunike is a regular contributor to the Zimbabwe Independent.

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