Self confessed ZANU PF AG Johannes Tomana desperate in Bennett prosecution as political persecution case loses vital evidence on which it was premised. Will the Judge save him once more?
The trial largely viewed as political-judicial persecution of Zanu PF opponents by the State in many circles is shaping out nicely to confirm that perception.
The controversial self confessed Zanu PF staunch supporter at the centre of a political dispute between the MDC-T and Zanu PF following his suspicious appointment by President Mugabe in utter disregard of the GPA is beginning to show signs of despair in the matter.
“The State, My Lord, has been barred from relying on the admissions which were specified in this court, namely handwritten statements by Peter Michael Hitschmann, video evidence and the sworn statement by the witness.For that reason, it has abandoned the use of those three admitted statements,” the AG partially surrendered.
He however remained clutching on the only straw still remaining for him to exploit in the disintegrating prosecution or is it persecution of the accused.
The e-mails allegedly downloaded from the laptop impounded by CIO and Army investigators into the matter from impeached State star witness Peter Michael Hitschmann seem to be the only ray still lighting the prosecution case for the embattled AG.
“These are documents separate from any admission that Peter Michael Hitschmann placed. These are documents which were found independently and separately from the admission. The objection by the defence counsel is ill-founded and must be dismissed,” the AG submitted after the defense had objected to their admission as evidence.
The defence maintains that the irregularities that led the court to dispense with evidence in the form of the impeached witness’3 handwritten statements and a 4th which was attested to as well as video footage are present in the manner the e-mails were obtained by the Army and CIO operatives who investigated the matter to the same extent they were evident in the discarded evidence.
“What was done by persons from the President’s office without following the proper procedure cannot be ruled admissible. My Lord, there can be nothing independent about emails that were printed in the same un-free circumstances as the other statements,” the defence countered,
The witness the prosecution had presented to certify authenticity of the e-mails Nyasha Matare a CIO operative working as a typist was equally slammed by the accused’s defence counsel Beatrice Mtetwa.
“My Lord, the witness says that she is a typist. I do not believe that gives her the expertise to give evidence as to the origins of the emails.From her emails, she clearly does not know the addresses of the various parties and she clearly cannot say the emails came from whom going where.The witness says she found the laptop on the table but does not tell us how the laptop came to be there.This is particularly so, My Lord, as Hitschmann has already said that such emails were shown to him and does not know their origins,” submitted Mtetwa.
These are effective tools the defence is using to undo the rusty nuts and bolts holding the State case together for now at least.
To tighten his case the AG ought to have called in an IT specialist to testify on the origins date and times of the e-mails with regard to IP addresses of origin and delivery and prove that the IP addresses were indeed owned by the accused and the impeached witness.
In the absence of such crucial evidence it would be unsafe for the Court to accept the e-mails as admissible evidence of genuine correspondence between the impeached witness and the accused.
Even with such concrete evidence the prosecution has a duty to prove that the e-mails could not have been spam messages as there is an abundance of evidence to support that any e-mail address can be hacked and abused and electronically submitted data must be treated with circumspect more so if it is being disputed .
But instead the seemingly IT illiterate AG is convinced that it is adequate for him to rely on such vulnerable communication simply because it was downloaded from a suspect’s computer notwithstanding the circumstances in which it was downloaded.
As the defence pointed out the typist who downloaded the e-mails could not satisfy the court of the origins of the Laptop from which she downloaded the e-mails neither could she state their source and destination with precision?
Because the trial is highly charged politically and the penalty on conviction is grave the Court would be in dereliction of judicious discretion if it was to allow admission of the e-mails as evidence simply because the prosecution has aroused the court’s curiosity as to the contents of the e-mails.
In any event for the e-mails to form substantive evidence in the matter they must be shown to have been obtained legally through a search warrant and downloaded in the presence of the accused and or witnesses given their disputed ownership which has not been done.
But alas the AG believes it is enough for the evidence to be admitted by the court that as he put it;
“The emails contain relevant executive statements between the witness and the accused person and there is no rule of admissibility that bars this court from accepting them,” as they are “verifiable evidence.”
The strong submissions by the defence counsel that;
“There is nothing, My Lord, which indicates that without a proper foundation and we respectfully submit that they remain prejudicial to the accused. We, therefore, remain resolute to their production,” requires serious consideration by Justice Bhunu when he rules on the admissibility of the e-mail evidence the AG is clutching to.
The e-mails were forcibly obtained from yet to be proved sources by the same persons the court has found to have tortured admissions out of a witness and the doctrine of consistence in dealing with evidence sourced by such improper means will be vitiated in the unlikely event the court allows the evidence to form the basis of this matter.
Even then the chances of such e-mail evidence supporting a safe conviction are very remote if not none existent given the gaping holes in their merit.
The court must be bold enough to end the prosecution’s misery in this case and there is no better way than to leave the prosecutors with some modicum of credibility by simply rejecting the admission of the e-mails as evidence and thus giving the prosecution the chance to adduce legally obtained evidence against the accused that is free from controversy attendant to Army and CIO interference and complicity.
For now however it looks like the defence has put enough degreaser in the rusted bolts and nuts holding the prosecution case’s wheels to the body and if the court does not stop the case the wheels will come off and the AG’s reputation and suitability for the position he holds will be damaged beyond repair.
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