In a desperate attempt to repair the catastrophic damage to the State case against MDC Treasurer General Roy Bennett caused by pseudo IT expert Mr. Perekayi Denshad Mutsetse, Attorney General (AG) Johannes Tomana who is also the lead Prosecutor in the high profile case has applied for the court’s permission to call in another IT expert to testify in the ongoing trial.
Bennett is facing insurgency, banditry and terrorism charges in the Zimbabwe High Court for offences allegedly committed in 2006.
The offences were allegedly unearthed by the Zimbabwe National Army (ZNA) and Central Intelligence Organisation following the arrest of Mutare arms dealer Peter Michael Hitschmann and several other MDC activists that included current Co-Home Affairs Minister Giles Mutseyekwa.
It is common cause that the ZNA and CIO investigators tortured Hitschmann into implicating Roy Bennett in the commission of the crime whereupon they scavenged for evidence and found it in the form e-mail correspondence between Bennett and Hitschmann.
The generality of Zimbabweans believe the prosecution of the MDC Treasurer General is a calculated Zanu PF political persecution strategy to dissuade not just the accused but any descendant of the colonial masters from ever attempting to indulge in politics within the country.
For how else can a case that was brought to court on the basis of Hitschmann’s confessions still be in circuit when the Key witness has disowned all his confessions and the same court has upheld that his confession was unprocedurally obtained through torture?
There have been several instances when the case was in distress and risked crumbling but the Presiding Judge has come in handy with eyebrow raising findings supporting the continuation of inquiry into the allegations.
The investigating officer admitted that he had not completed investigation of the matter with specific reference to the alleged Mozambique account of the arms dealer where it is alleged Bennett deposited payments for the arms of war he intended to use in committing the crime but the Judge did not consider the incomplete investigations detrimental to the continuation of the trial.
Then there was the incident when the presiding Judge correctly held that statements that were made by the Key State witness under duress of torture could not be relied upon to prosecute the accused but still allowed continuation of the trial on the basis of disputed e-mail correspondence between the accused and the Key State witness the court had impeached.
Even the decision to impeach the State’s Key witness was mired in controversy when the presiding Judge impeached him on alternative grounds that were never part of the State’s application for the impeachment.
Be that as it may and notwithstanding the glaring weaknesses in a case that carries the potential punishment of the death penalty the case has somehow managed to remain in circuit with the AG seeking permission to call in another expert IT witness to testify for the State in the matter.
The beleaguered Prosecution called to the witness stand TelOne Security officer Mr. Forgive Munyeki with the intention to prove that the microwave telecommunications link that was the target of a terror attack in disputed e-mail discussions between the accused and the arms dealer was in fact an existent essential service infrastructure whose sabotage would compromise national security and cost a leg and arm for the State to restore it back into operation.
The desperate attempt by the state to introduce evidence that would normally be used in justifying a sentence or in aggravation or mitigation, betrays the anxiety within the Prosecution to sensationalise the matter to attain a desired conviction.
While it is common cause that the Prosecution is in this matter to secure a conviction, there is need for the state to secure that conviction in a fair and just manner and not through erotic antics of the nature epitomized in the hasty call to the witness stand of Mr. Forgive Munyeki which the defense counsel rightly objected to.
The implication of calling evidence by Munyeki into consideration at this stage would be that the Court has been convinced beyond reasonable doubt about the accused’s involvement in the commission of the crime and convicted him.
This is so because at this stage in the trial there is a dispute over the authenticity of the e-mail evidence the case is premised on which has yet to be adjudicated on before the quantum of the damage of the crime can be considered in assessing appropriate sentence.
That is why lead defense counsel Ms Mtetwa urged the court to exclude Mr. Munyeki’s evidence from the trial citing Section 252 of the Criminal Procedure and Evidence Act, which precludes such evidence from being heard in court.
"From the evidence led so far in the trial, nothing was placed before the court about the microwave link issue and that the State should not deal with the effect without shedding light on the cause.
"There is no evidence as to which of the alleged weapons could destroy a microwave link at Melfort.
"How can the State lead evidence of effect before leading evidence on cause. What is the link between the accused and this microwave link at Melfort? The court would not benefit from obvious speculation, surmise and irrelevant evidence. It must be excluded," objected Ms Mtetwa.
The obvious point she raised was that before the court considers the aggravation evidence that the witness intended to adduce, there was a need to first establish that the crime of sabotage of the microwave telecommunications link in Melfort was committed or about to be committed by the accused which has not been done.
The e-mail evidence the State is relying on as evidence that the crime was about to be committed is yet to be authenticated and before that has been done it would be prejudicial to the accused if the Court was to determine authenticity of the evidence linking the accused to the crime based on speculative consequences of successful commission of the crime that was never committed in the first instance.
It is clear that the motive of the prosecution in calling this witness is not to prove existence of the Melfort telecommunications microwave link which has not been disputed or even come under scrutiny in the matter so far.
What is evident is that the State realizes the extent of the damage to its case that has been inflicted first by the impeachment of Peter Michael Hitschmann its original Star witness and then by its “expert” IT witness Perekayi Denshad Mutsetse.
It is too late to resort to impeachment in respect of the later witness who clearly as exposed to be a liar and unreliable expert deserving impeachment than Hitschmann who proved consistent in his testimony even after being impeached.
The AG thus wants someone to sanitize the festering State case against the loathed MDC-T Treasurer General whom Mugabe has refused to swear in as Deputy Agriculture Minister in utter disregard of the Zimbabwe Constitutional Amendment No 19 he ascended to following the signing of the GPA that legitimized his current Presidency of the country.
And who better to do so than a Security operative from the State owned TelOne Company who for all we know must be a reliable seconded CIO operative.
Munyeki’s evidence targeted as outlined at disclosing aggravation damage that would have followed had the purported crime been committed would not leave the Court any wiser about how the accused is linked to the crime unless of course the State intends to take advantage of his presence on the witness stand to smuggle expert IT witness from his security background to sanitize the horrible evidence submitted to the Court by Mutsetse.
This is more so if regard is paid to the Presiding Judge’s comments when he ruled against the defense using the name of the AG in fake e-mails to prove that e-mail evidence can be manufactured by anyone anywhere impersonating another person where he held that the e-mails in exhibit 13 that the State is relying on are nevertheless in dispute and will remain so until proven otherwise to be authentic.
Instead of authenticating the e-mail evidence to link the accused to the crime which “expert” It witness Perekayi Denshad Mutsetse dismally failed the State Prosecution to accomplish, the Prosecution at sixes and sevens with the case is trying to move away from the obligation to prove its evidence and still use the same to show aggravation in the case that has not been established.
Attorney-General Mr. Johannes Tomana’s response to the objection leaves a lot to be desired.
It is not enough to argue that the defense’s objection is out of misunderstanding of the section of the Criminal Procedure and Evidence Act the defense cited as he did.
His argument that evidence that linked Bennett to the microwave link conspiracy was already before the court through the email printouts tendered as exhibits during the trial is misinformed and without merit as that evidence has already been ruled to be in dispute and must be proven first before it can instruct the Court’s determination of the allegations against Bennett.
Whatever is contained in those exhibits will only be of material consequence to the case if it is proven first that the accused was a party to their generation and transmission or receipt and only after that will there be reason for the Court to hear aggravation and mitigation evidence in the case such as that the AG is attempting to adduce at this stage by calling the evidence of Munyeki.
Contrary to his averment that;
"Exhibit 13 (emails) does speak of the conspiracy to destroy the microwave link. It is not enough for the State to just prove that there was communication between Hitschmann and Bennett in executive form.
"There is need to prove there is such a link in Melfort. This witness will prove that, indeed, we do have a microwave link at Melfort. This is one of the dilatory applications that is way off the mark. The objection should accordingly fail," the objection must be sustained because the existence of the link is neither here nor there at this stage of the matter where the Court must concern itself with who if any was intent on sabotaging it and what authentic evidence there is showing that intent.
That some disputed e-mail bearing accused’s and impeached witness’ names talks about a conspiracy to destroy the microwave link does not is before the court does make that exhibit authentic in a matter where both the accused and the impeached witness are disputing their involvement with the highly suspicious evidence that is open to manipulation by anyone as has been demonstrated to the Court by the defense when it manufactured similar evidence in the names of unsuspecting individuals not the least of them the AG.
It took the Court’s intervention to exonerate the AG’s name from being associated with the fake e-mails manufactured by the defense and there is absolutely no reason why the same court should not be called upon to intervene and equally determine authenticity of the exhibit before it before determining whether or not to put the accused on his defense on the allegations leveled against him in the disputed exhibit.
That is what fairness in judicial adjudication is all about.
Why should an accused be subjected to an enquiry into a role in a crime where his
link has not been established other than through some dubious cyber technology document open to manipulation by anyone especially where the accused is a reputable political opponent of a bureaucracy that has in the past been known to have manufactured similar such evidence against opponents using torturous methods including an impeached witness in this matter?
That, "It is the State’s case that the accused together with Hitschmann conspired to destabilise the country through, among other things, bringing down the microwave link station at Melfort,” is not the issue at this juncture in the trial but rather that the evidence the State is using in establish its prima facie case against the accused to bring down that microwave is dubious and must be authenticated before the accused can be put on his defense.
There is therefore absolutely no justification in the Court being asked to waste time listening to evidence about aggravation repercussions of the crime before the Court has been convinced that the accused and his accomplice were indeed authors and transmitters of the conspiracy document.
What would then happen in the event the Court hears this evidence and decides that indeed the damages would have been catastrophic for the nation but then the accused and his accomplice have not been proven beyond reasonable doubt to be the authors of the conspiracy before it?
Clearly the efforts by the AG would have gone to waste and valuable time and financial resources put to waste pursuing a matter in Court where the felon is still at large.
In any event it makes a mockery of the judicial system to hear evidence in aggravation and mitigation in matter where the accused is yet to be convicted.
It conveys a bad intention to convict before the accused has put up his defense which would set a dangerous precedent in criminal prosecution in the country bearing the political rumblings that have characterized this case from the onset.
It will not bolster the state case in any way other than that it will give credence to the earlier application by the defense for the Presiding Judge to recuse himself from the matter.
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