The MDC-T Treasurer General Roy Bennett may have reason for another go at a dance like this if proceedings in his politically motivated trial so far anything to go by
The ongoing trial of MDC-T Treasurer General and Deputy Agriculture Minister designate Roy Bennett is turning out to be a nightmarish experience for Attorney General Johannes Tomana.
Having decided to personally take charge of the prosecution of the Zanu PF loathed MDC-T Legislator in a case where he is accused of amassing weapons of war for the purpose of committing acts of banditry and insurgency in totally disregard of pervasive accusations of harassing and persecution of Roy Bennett the AG appears up against it in this instance.
What has so far transpired in court would have convinced many a State Prosecutor to abandon the case after plea as chances of success become dimmer by the day.
Here is the beginning of my post. But then Johannes Tomana is no ordinary AG as he is a self proclaimed staunch Zanu PF supporter.
The prime political foe of Zanu PF is MDC-T and when a case arises where senior political foes from the MDC-T and Zanu PF have to contest on any matter political advantage becomes the prime motive as is becoming evident in this matter.
The trial of Roy Bennett has so far confirmed that it is no exception to other legendary political duels between Zanu PF and MDC-T and neither party is prepared to throw in the towel because of attendant political ramifications of surrender.
The case appears to be causing the self proclaimed Zanu PF Attorney General major legal shocks and the Zanu PF party is not amused watching its key hatchet man committing legal suicide at every turn in the case which is a must win for the party despite its evident flaws.
The first major huddle for the AG was the rejection by the court for him to rely on a statement deposed to by the star witness in the matter on account it was hitherto disowned and never accepted as legitimate evidence as it was improperly induced.
As if that was not serious enough a set back the Investigating Officer was forced to admit that he had not recorded a statement from the witness for the purpose of this trial and had not completed investigations into some crucial aspects of the crime like the Mozambique account held by the witness and source of e-mail correspondence between the accused and the witness.
An attempt to sensationalise the case by loading up exhibits backfired when the witness disowned some of them and the prosecution had to accept that the additional exhibits had been mistakenly included into the crime inventory of exhibits as they had been recovered from elsewhere than the witness’ custody.
The State’s star witness one Peter Michael Hitschmann a Mutare based former Police Officer turned licensed Arms Dealer previously convicted of having been found in possession of illegal arms who the AG hoped would help clarify matters on the basis that he had implicated the accused turned out to be more favourable to the accused’s defence than to the prosecution case.
The development was always in the offing as the AG had largely ignored prior warnings of it from the witness’ Legal Counsel and had arrogantly caused the arrest of Mordecai Mahlangu over allegations that he had attempted to defeat the course of justice when he wrote to the AG informing him that his client will not stand by the contents of the statement the AG would rely on in Bennett’s prosecution as he had disowned the same statement in an affidavit of record in his own trial in the same court now presiding over Bennett’s trial.
It is instructive that the witness’s Legal Counsel Mordecai Mahlangu has been exonerated of any wrong doing in another court over allegations levelled against him by the AG now prosecuting Bennett.
And true to his timely warning that the AG paid him for with a prosecution for attempting to defeat the course of justice only to be exonerated by another court, when the State put him to the witness stand Peter Michael witness disowned the statement that the AG was relying on in his prosecution of Bennett.
The development left the AG’s case in shambles as the defence team for Bennett raised strong objections over admission of the statement in question as evidence on account it had been hitherto disowned and was recorded for a totally different purpose than it was now intended to be used by the AG.
The Bennett defence team further argued that the statement in question was improperly coerced through torture of the witness and thus fell foul of provisions of the Criminal Procedure and Evidence Act (CPEA) and was thus inadmissible as evidence in the Bennett trial with the concurrence of the Presiding Judge Justice Chinembiri Bhunu.
This was after he had quashed a defence application for the learned judge to recuse himself from the matter after findings he had made in bail hearings of the accused MDC-T Senator that were deemed prejudicial to a fair trial before a Judge who had hitherto held that the accused was facing serious crime charges that needed to be balanced with state security considerations in a full court hearing.
In pandemonium over the seemingly crumbling case the AG applied for the impeachment of the State’s star witness as a means with which to plug gaping holes in the prosecution case and a means to reconstruct the disowned statement through cross examining the witness whom he now considered hostile to his cause.
It was the same hostility he had been forewarned of and not only ignored but attempted to repress by laying charges of attempting to defeat the course of justice on Mordecai Mahlangu for his effort in flagging the possible hostility to the AG prior to the trial.
The taste of the pudding is surely in the eating as the AG will now confirm in respect of his misguided reliance on a statement by Hitschmann to indulge in the high profile prosecution he is now stuck in.
The grounds upon which the AG sought impeachment of his star witness turned hostile in the Bennett trial failed when the Learned Judge held that it was incompetent of the State to impeach its witness over a departure from a statement that has previously been disowned in another case and induced through torture.
Under normal circumstances the State case should have fatally collapsed at that point where the State had failed to substantiate its application but in Zimbabwe Judges are commonly viewed with suspicion that they are Zanu PF compromised.
The learned Judge did not help in allaying these fears when after finding against the State’s impeachment application he then saved the AG the blushes by granting impeachment on the grounds of the witness’s demeanour and conduct in court that parties had not been given the opportunity to argue over.
The temporary reprieve the AG got from the Judge’s benevolence in granting impeachment on a ground that was not premised in the State application is now the source of dilemma for the AG.
While the AG has been granted a window to reconstruct the witness’s statement to the same commitment that informed the AG to go for prosecution of the MDC-T Treasurer General, he is now limited to using the witness’s demeanour in court to show that the witness was not being truthful in his oral evidence.
An attempt to commit him to the alleged confession that funding for the weapons of war that were found in his possession had come through witness’s Mozambique bank account was convincingly rebutted by the accused who disclosed that the account had been in operation since the early 80’s when he was supplying an economically depraved Mozambique under Civil War siege with goods from a stable and surplus producing Zimbabwe.
The AG must never muse himself that because the witness has confirmed holding the Mozambique Bank account his contention that it was used to finance illegal weapons purchases by Roy Bennett has been established.
He must now furnish the court with evidence of the deposits that Bennett made into the account and their intended purpose and the date when they were effected and by what means they were transacted.
The motive in IMPEACHMENT OF WITNESS is “to call into question the veracity of a witness, by means of evidence adduced for such purpose. A witness may be impeached with respect to prior inconsistent statements, contradiction of facts, bias, or character.” -Black’s Law Dictionary
In this matter the AG has been denied recourse to the more easier to prove, witness’ prior instances of untruthfulness, prior inconsistent statements and prior inconsistent actions by the court and has to rely on the more complex and subjective bias and interest, reputation or opinion for untruthfulness as well as prior convictions and variance with prior testimony of the witness.
To discredit the witness the AG must first commit him to the prior testimony, prior convictions and reputation or opinion of untruthfulness.
Alternatively the prosecution must emerge areas of bias and interest in the matter by the witness that would support his inclination to lying in his testimony.
The AG it must be said has done a pretty shoddy job in cross examination of Hitschmann as he remained glued to the disowned statements that have hitherto been ruled inadmissible evidence in the current trial.
The witness has never refuted owning a Mozambican bank account in his evidence in chief and reaffirmed that ownership during cross examination.
In addition to accepting links to the account the hostile state witness further explained the origins of the account and its purposes none of which were discredited by the cross examination.
Worse the witness’ ownership of the account was never linked to transactions between him and the accused and if anything the testimony earlier by the Investigation Officer that he had not completed investigation into the account leaves the state case perilous.
Realising the futility of the bank account linkage discredit of the witness the AG tried the more subtle discredit of the witness by questioning the truthfulness of the witness’ earlier testimony about his relationship with the accused and the political party to which the accused belonged.
The witness had earlier disclosed that his first contact with Bennett was at a Mutare club where the former Chimanimani legislator had been addressing a report back MDC gathering.
The AG pounced on the disclosure to trap the witness and link him closely with not just the accused but the accused’s political party as well.
“I put it to you that you actually view the accused person as a hero and nothing else,” inferred the AG.
The witness conceded to that but only now that he has become accustomed to the accused but not before when he had little contact and knowledge of the accused.
More tellingly the witness disclosed that his fascination with Parliamentary scuffles was not limited to the Zimbabwe Parliament scuffle where the accused was involved but also those he had similarly witnessed on TV from Taiwan, Greece and South Korea.
He refuted the implied demeanor absurdity sighted by Judge Bhunu in this regard when he granted the State’s application for his impeachment in the following terms;
“Fighting in Parliament is human. If it can happen elsewhere, why can it not happen here?”
The AG did not discredit the witness’ fascination with Parliamentary scuffles involving the accused as being motivated by the witness’s bias, interest or admiration for the accused and or his political formation as he had the onerous task of dispelling the witness’ interest in scuffles elsewhere he had mentioned.
With regard to the feebly attempt to discredit the witness on the grounds of partisan political bias evidenced by the witness’ admission that he had been present at a Mutare Club where the accused gave an MDC report back Hitschmann simply denied political association of any nature with the accused and or his party formation and any judge who would convict a person for associating with a political formation because he for unknown reasons found himself in the locality of the political report back session in a public place like a club cannot be taken seriously.
It was up to the AG to produce a membership card or record thereof in court showing the witness is linked to the accused politically which he sadly did not do.
Despite having been barred from relying on disowned statements the AG could not resist the temptation to fall back on the invalidated document when he questioned the accused on the e-mail exchanges between the accused and the witness.
The rebuttal from the witness was emphatic.
He could not have supplied a password for the police to download e-mails sent to him by the accused from the accused’s Laptop as he did not own the sender’s e-mail address and account.
The defence re-examination of the witness will no doubt expose how this answer is consistent with technology behind e-mail security since the State alleges that it impounded Bennett’s computers and downloaded the e-mails there from using Bennett’s password which would not be privy and has not been shown to have been privy to the witness by the cross examination.
To discredit the witness the AG ought to have somehow committed the witness to critical issues in the statements that the court is refusing to admit as evidence in this matter which he dismally failed to do.
As it now stands the court will have difficulty crediting any of the alleged confessions of the hostile witness to him.
It would be interesting to see how the court will use the witness’ testimony in its final determination of the matter given the incompetent manner in which the AG confronted the impeached witness with a barrage of inferences that it had not committed to the witness’ ownership.
All the court got from this cross examinations were wild and unsubstantiated allegations which were equally refuted with vigour by the witness.
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