ROY LESLIE BENNET
HIGH COURT OF ZIMBABWE
HARARE, 28 January 2010 and 5 February 2010 and 1 March 2010
ASSESSORS: I. Mr Musengezi
Mr Tomana, Mrs Ziyambi and Mr Mutangadura, for the State
Mrs Mtetwa and Mr Maanda, for the defence
BHUNU J: The accused is charged with various counts involving conspiracy to commit acts of terrorism, sabotage and illegal possession of firearms in a bid to unseat a lawfully established government in contravention of the Public Order and Security Act [Cap 11:17] and the Firearms Act [Cap 10:09]
In its summary of the State case, the state alleges that some time between 2002 and 2006 the accused and one Peter Michael Hitschmann conspired to depose a lawful government through acts of violence, insurgency, banditry, sabotage and terrorism.
The State alleges that the microwave link at Melfort was one of the targets for attack in pursuit of the common purpose to unseat the government by unlawful violent means. In a bid to prove what it alleges the State has now called one Forgive Munyuki a security officer employed by Tel one with a view to establishing the significance of the microwave link at Melfort and the effects of its destruction.
Counsel for the defence has vigorously objected to the calling of this witness arguing that his evidence is irrelevant and as such inadmissible in terms of s 252 of the Criminal Procedure and Evidence Act [Cap 9:07]
It is trite and a matter of common sense that irrelevant evidence is inadmissible because it serves no useful purpose except to waste the Court’s time. The crisp issue for determination is therefore whether or not the destruction or disablement of the microwave link is relevant to the determination of this case.
The main basis of the objection is that the State is putting the cart before the horse by calling this witness to establish the existence of the microwave link and the harmful effects of its destruction before establishing the alleged conspiracy.
With respect, I am unable to appreciate the logic of that argument. Relevant evidence remains relevant regardless of the point in time at which it is led. The prosecution is dominus litis. As such the prosecutor has the unfettered discretion of determining the order in which he is going to call his witnesses. The prosecutor is not obliged to call witnesses in the order preferred by the defence, the Court or anyone else for that matter.
By calling this witness before any other evidence in the order preferred by the defence, the State was perfectly within its rights and mandate. By the same token the State was equally within its rights in calling this witness before leading evidence on whether the accused and his alleged co conspirator had the capacity to bring down the microwave link as alleged or at all.
In her objection counsel for the defence sought to convince this Court that the microwave link in question is a massive concrete block incapable of being destroyed by the sort of weapons produced by the State in this court. That may very well be so I don’t know, but the Court would rather hear that coming from the appropriate witnesses and not counsel from the bar.
In offences of this nature, the extent of success or failure is not a major consideration because we already know that the accused and his alleged co conspirator failed in executing the alleged common purpose. We however know from the history of this country that the mere failure of the well known Chinhoyi battle owing to inadequate weapons and ammunition did not mean that the liberation war had been lost.
It is the State case that the planned attack on the microwave link at Melfort was part of the modus operandi to achieve the common purpose of unseating a lawfully established government. Having regard to the nature of the crime, it can not be said by any stretch of the imagination that such evidence is irrelevant to the alleged acts of banditry, sabotage and terrorism aimed at achieving the main common purpose.
The defence also objected to the calling of this witness on the basis that his evidence is based on mere speculation and conjecture. The nature of the charges is such that they give room to some unavoidable speculation and conjecture in so far as they are grounded on preparatory acts in the form of conspiracy and not the actual commission of the acts of banditry, sabotage and terrorism. Not all the evidence pertaining to the microwave link is however speculative.
Evidence relating to the existence or otherwise of the microwave link, its purpose and function cannot be speculative but a matter of fact. It follows as a matter of irresistible inference and logical deduction that if the microwave link had been destroyed, it could no longer perform the function for which it was erected. Whether or not the disablement and destruction of the microwave link would have been in promotion and execution of the common purpose or conspiracy is again a matter of fact and not speculation.
It is therefore relevant at this stage to admit evidence which tends to show whether or not the accused and his alleged conspirator would have succeeded in destabilizing or unseating a lawfully established government had their plan or conspiracy succeeded.
The objection to the calling of the State witness one Forgive Munyuki is accordingly dismissed.
The Attorney General’s Office, the State’s legal practitioners
Mtetwa & Nyambirai, the accused’s legal practitioners