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
