AG Johannes Tomana poised to get his way in Bennet trial
The reason why President Mugabe has consistently refused to swear in Roy Bennett as the Deputy Minister of Agriculture on account of his pending trial became evident in the High Court on Tuesday 12 January 2010.
The prosecution strategy has been to sell the ruse that Michael Peter Hitschmann was its star witness in the case when behind the scenes the witness is only important to its case in one sense only.
A statement he admits deposing in 2006 when he was arrested and later convicted for possession of dangerous weapons is all that the prosecution is interested in this Matter with specific reference to the content that implicated Roy Bennett in the procurement of the weapons by the convicted former arms dealer.
Clearly President Mugabe has long been briefed about the prosecution game plan in this matter which led him to disclose to Deputy Premier Professor Arthur Mutambara that Bennett will never be acquitted of the charges he faces and hence the President had no reason to swear him as a Deputy Minister when his freedom was short-lived
The statement in question was the final draft of many others he claims to have been forced to depose to throughout the night of 7 March 2006 at Mutare’s Adams Army Barracks where he was detained incommunicado.
He has since dissociated himself from its contents during his trial and it was never admitted as evidence in his own trial.
But the self confessed Zanu PF Attorney General (AG) Johannes Tomana who has taken over prosecution of the matter personally has long told President Mugabe that he will use the same statement to secure Bennett’s conviction.
When Bennett was indicted for trial in the Harare High Court there was drama at the Mutate Magistrate Court when the accused MDC-T Treasurer’s previously granted bail was revoked and he was re-detained triggering a political protest from his party which announced a partial disengagement from the coalition government until outstanding issues that included the swearing in of Senator Bennett as Deputy Minister were implemented.
The MDC-T has consistently alleged that the arrests, detentions and torture of its members is a political judicial persecution strategy authored by Zanu PF intended to whittle its Parliamentary majority following the March 2008 harmonised elections.
The Bennett trial has been politically dramatized in Court before Justice Chinembiri Bhunu first when he ruled that the AG could not proceed on the basis of Hitschmann’s alleged confessions in a 2006 statement when the state’s first witness who was the investigating officer averred to it in his testimony.
The ruling took the AG unawares and he sought adjournment of the matter to the next day.
When the trial resumed it was bogged down in preliminary arguments concerning admission of Hitschmann’s revoked statement of 7 March 2006 and later when the Defense applied for the Judge to recuse himself over pronouncements he had earlier made about the accused Senator when he presided over Hitshmann’s bail application which was dismissed.
This was to be followed by admissions that some exhibits brought to court were not part of the exhibits produced by the state in Hitshmann’s trial whereas it was the state case that the accused Senator had cached weapons intended for terrorism acts with Hitschmann and the entire war arsenal was recovered from Hitschmann.
It was only on Tuesday that the AG disclosed his revised plan to sneak in the 7 March 2006 statement that Hitschmann alleges he was forced and tortured to depose showing his desperation to successfully prosecute the matter without reliance on that statement.
The alert defence Attorney for Bennett immediately objected to the admission of the statement recorded from Hitschmann under duress and within a military establishment as evidence but the objection will not lead anywhere despite having caused the adjournment of the matter to 13 January 2010 for continuation to allow the judge to consider the impeachment of Hitschmann over his viva voce evidence that was at variance with the written statement from him of record.
The impeachment route is the last ace that was up the sleeve of the AG in this trial and he dramitised it in Court and managed to dupe the press that the case against Bennett was disintegrating when to the contrary it will be strengthened when the judge has no option but to allow him to impeach a clearly hostile state witness he deliberately summoned to court to allow him to use the central documents he has always relied on to pursue the prosecution of Bennett.
The AG wants to be granted the opportunity to irrevocably commit Bennett to the 7 March 2006 statement in Court before the Judge and has largely succeeded in this regard when his surprise production of the statement was acknowledged by the accused as one of many statements he was forced to sign on 7 March 2006.
It is now common cause that the 2006 statement the AG is trying to get the court to accept as evidence in this matter is defacto a statement by the hostile state witness before the court and the Judge will have great difficulty barring the AG from enquiring into the variation between what the witness said in that statement and his statement in court.
The AG wants to produce that statement and argue his case on that basis as without it he has no case to prosecute.
Since he was barred from introducing it through the investigating officer he wants to confront the deponent and extract and lay bare the inconsistency in his verbal evidence in court and that statement then move on to impeach the witness but still rely on the written statement the witness is contradicting.
This is a tricky position he has moved the hostile witness into and it is now up to the defence attorney to protect the state witness turned hostile to avoid her original client being prejudiced by the statement that was coerced from Hitschmann.
Its early days yet for Senator Bennett to choke laughter at the apparent contradiction between the AG and his witness.
In the unlikely event the does not grant the AG’s impeachment application the defence must go to court tomorrow with a well considered argument against the contents of Hitschmann’s statement even though such statements will be treated with caution when the judge decides the weight to put on it in his final ruling.
Fortunately for the defence there is evidence that the Hitschmann disowned the statement as soon as he got free from the torture chambers in which it was made and there are numerous other inconsistencies in the state case that can be used to discount the allegations leveled against Bennett.
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