Sparks fly in Zim’s Bennett trial

2009-11-10 12:25

High Court judge Justice Chinembiri Bhunu will tomorrow make a

ruling that should determine the course that the treason trial of Roy Bennett, a

top aide to Prime Minister Morgan Tsvangirai, will take.

Bennett whose controversial arrest and prosecution has widened

cracks in Zimbabwe’s unstable coalition government appeared in a packed

courtroom yesterday to face charges of plotting to overthrow President Robert

Mugabe three years ago.

Attorney General Johannes Tomana came in person to prosecute while

top human rights lawyer, award-winning Beatrice Mtetwa led Bennett’s defence


Mtetwa immediately threw a big one, asking Justice Bhunu to discard

the State’s key witness because he was being forced by the State to testify

against Bennett on the basis of a confession he made under extreme duress.

The witness, a registered arms dealer Peter Michael Hitschmann, was

arrested and convicted of illegal possession of firearms three years ago.

Hitschmann has made an affidavit stating that when he was arrested,

he had been tortured to implicate Bennett in his firearms case.

Several other people that were implicated, including MDC’s co-Home

Affairs Minister Giles Mutsekwa were in 2006 acquitted of the same case that

Bennett faces today.

In her application to have Hitschmann removed as a state witness

Mtetwa said the AG had received communication from Hitschmann clearly stating

that he was unable to testify against Bennett because the affidavit he was

expected to stand by had been extracted from him through torture.

Mrs Mtetwa applied for Hitschmann not to testify, saying he had

nothing to say on behalf of the State.

“Hitschmann’s lawyer formally wrote to the AG that he had no

evidence to give,” Mtetwa told the court. “The AG received that communication

and, instead of thanking the lawyer, the lawyer was actually arrested and is

currently on bail.”

Hitschmann’s lawyer Mordecai Mahlangu was last week arrested for

making this communication to the AG.

“It is a conduct not worthy of an Attorney-General to proceed with

an affidavit that is against what is in the State papers,” said Mtetwa.

Tomana made a counter application seeking to have the defence

outline thrown out on the grounds that it was filed late and also appeared to

seek to quash the charges against Bennett.

“In terms of Section 66 of the Criminal Procedure and Evidence Act,

the accused is required to file his defence outline at least three days before

the commencement of the trial. The three days do not include weekends and public

holidays,” Tomana argued adding that in this case, he had been given only two

days to consider the defence outline.

He said the defence outline also sought to strike out the State

outline and that was not procedural as it could only be done at least three days

before the trial date.

Bennett’s lawyers however opposed Tomana’s application and accused

the AG of trying to impose on Bennett what to say in his defence outline.

“The State cannot apply to have the accused person gagged on what

he has to say just because the AG does not like what is in the defence outline,”

said Mtetwa.

She then urged the High Court to have the AG’s conduct investigated

by the Law Society of Zimbabwe (LSZ) saying it was unethical for any law officer

to proceed to trial with an affidavit that had been disowned by a witness.

“An AG is for everyone. He should be impartial. He is AG for

Bennett and for whoever is in Zimbabwe,” Mtetwa argued.

All state witness (mostly police officers and soldiers) have their

statements hinged on Hitschmann’s disowned affidavit.

If the court discards Hitschmann’s testimony, then Bennett’s case

would, like many other such cases against Tsvangirai’s party officials, crumble

like a deck of cards.

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