Roy Bennett and AG Johaness Tomana there is no love lost between the two as they continue to slug it out in court following Bennett's acquittal on 10 May 2010 and Tomana's application for leave to appeal the acquittal to the Supreme court that was forced by Emmerson Mnangagwa and Patrick Chinamasa on behalf of Zanu PF
Controversial Attorney-General Mr. Johannes Tomana has sought leave to appeal to the Supreme Court against the High Court’s decision to discharge and acquit MDC-T treasurer-general Mr. Roy Bennett on charges of terrorism, banditry, insurgency and trying to depose a constitutionally-elected Government.
When Justice Chinembiri Bhunu, acquitted Mr. Bennett on Monday 10 May 2010 with a verdict many had expected, the AG indicated that the State would abide by the High Court ruling igniting frenzy among the Zanu PF propagandist to outdo each other in hailing the country’s commitment to upholding the rule of law and Judicial independence.
"It is the High Court and its decision is binding," said Mr. Tomana soon after the judge had delivered his judgement.
That was before the complainant in the matter President Mugabe and Zanu PF had come into the picture.
Zanu PF Secretary for Legal Affairs Emmerson Mnangagwa and his deputy Patrick Chinamasa promptly called in the AG on behalf of their Party Leader President Mugabe and read him the riot act and instructed the compromised AG to file an appeal regardless of how frivolous or vexatious it may sound.
How embarrassed they must now feel internally following the AG’s hopeless application for leave to appeal against a verdict the nation hailed across the political divide as indicative that there was still some hope that the Judiciary in the country had a free hand to apply the laws without fear or favour.
The AG obliged through Chief Law officer Mr. Chris Mutangadura under the AG’s instructions and have since filed an application for leave to appeal Bennett’s acquittal at the Supreme Court.
That is how the upholding of the rule of law is interpreted in Zanu PF.
Politically motivated cases that the courts decide against must be appealed to put spanners in the works and delay the negative political consequences they may have on the Party by suspending operation of the operation of the ruling pending the outcome of the appeal.
In a country where appeals can take years to be heard the frivolous and vexatious appeal that the AG has initiated is as Zanu PF’s Professor Jonathan Moyo has succinctly put it, “the quandary has never been a legal one but rather a political one. For the record, Roy Bennett must not be part of any government in free Zimbabwe."
Independent judiciaries worldwide do not entertain appeals on the grounds of political motive but rather on points of law and merit alone.
That is why the AG’s appeal over Bennett’s acquittal will never succeed even if leave to appeal is granted for political expediency of Zanu PF.
Any objective justice before whom the application would be heard will be required to assess the prospects of success of the dubious appeal in tandem with the merits of the appeal and sadly there can only be one conclusion that the case against Bennett is hopeless.
With regard to the merits of the appeal the AG submitted that Justice Chinembiri Bhunu’s court misdirected itself by failing to consider evidence before it holistically when it acquitted Bennett at the close of the State Case.
This is premised on the warped thinking that a holistic approach to the evidence analysis could only have been achieved if the Court had upheld that evidence of e-mail messages pointing to the funding of firearms acquisition and a Mozambique bank account in the name of Peter Michael Hitschmann that were before the court were a legitimate and indisputable pointers to the existence of a conspiracy between Bennett and Hitschmann to commit the crimes that Bennett was facing.
Nothing can be further from the truth than that.
The bank account and e-mail evidence was but part of the source documents upon which the AG premised his case and they would have been sufficient pointers to the conspiracy if the accused Roy Bennett and or impeached Star State witness Peter Michael Hitschmann had owned up to them.
In circumstances where both distanced themselves from the e-mails and Hitschmann owned up to the Mozambique Bank account but explained why he had opened it which was not disputed by the prosecution, it was not up to the court to make conclusions that the account was opened for purposes other than those the owner had stated.
The AG ought to have proven that the Bank account was opened by Hitschmann in collusion with Bennett to facilitate arms acquisitions for the purposes of committing alleged crimes.
The AG’s case was fatally handicapped in this regard when the Investigating officer conceded that he was yet to establish the finer details of the Mozambique account that was held by Hitschmann like who deposited the funds into it , when , how much and for what purpose.
In the absence of this crucial evidence the court could not make any inferences or link Bennett to the account.
More importantly the court risked setting the bad precedent of criminalizing the opening of foreign accounts by Zimbabweans for purely commercial reasons by giving the State freedom to accuse anyone with such accounts of criminal intends without the imperative need to adduce evidence of how the crime was committed.
Further the fact that the accused and the impeached Star State witness had both distanced themselves from the e-mails before the court placed the burden of proving that they were the originators recipients of the e-mail evidence on the prosecution.
That is why the prosecution was forced to call in the evidence of “IT expert Perekayi Denshad Mutsetse who unfortunately did more harm to the state case than good through his appalling ignorance of the IT world and its technicalities by dismissing commonly known practices in the field such as hacking and forensics.
The State’s IT Expert’s arrogance and contempt of court did not help either.
That is the holistic environment which the court analysed the evidence before it and concluded that it was unsafe to proceed with the matter any further than the close of the state case in circumstances where the accused had not been linked to the commission of the offences.
The averment by the State that the trial court did not even bother to consider circumstances in which the e-mails were discovered in its valuation of evidence and thus misdirected itself in ruling that the authenticity of the e-mails was solely dependent on the credibility of the IT expert instead of the circumstances in which they were discovered, which the court did not, is not only outrageous but also mischievous.
The Court evaluated the circumstances in which the e-mails were discovered and gave the prosecution the benefit of doubt when it admitted the evidence notwithstanding strong and convincing objections from the defence relating to the manner the laptop from which they were downloaded ended up in police custody and how it was secured from abuse.
If the court had not considered that the State case would not have proceeded beyond the point when the defense had applied for the e-mail and statements made by Hitschmann under CIO and Army Interrogators duress to be barred from forming the basis of the State case.
For the avoidance of doubt in that regard the trial court ruled that the statements made by Hitschmann under Interrogators duress were in admissible as evidence in Bennett’s trial but the e-mails whose existence was there before the illegal and torturous interrogations would stand as their formulation was not torture induced.
The trial court had no reason to revisit the circumstances in which the e-mails were discovered in the final determination having disposed of the arguments surrounding that in its preliminary determination which the AG mischievously attempts to pretend was never made in the trial.
The ground of appeal that the trial court failed to make a finding of fact as to where the e-mails originated from is frivolous and vexatious and will be dismissed with the contempt it deserves.
It was the State case that the e-mails were between Bennett and Hitschmann and were downloaded from Hitschmann’s Laptop.
It was the State that cross examined Hitschmann on that allegation following his impeachment as its Star witness and failed to get him to confess to ownership of the e-mails.
They State c even called Nyasha Matare to collaborate its allegations but she wilted under cross examination when she could not confirm to the court if the laptop on exhibit in court was one and the same one that she downloaded the e-mails from and how it had ended up in police custody.
The State then called in the IT “expert” Perekayi Denshad Mutsetse to enlighten the court as to the origins of the e-mail evidence and that they could not have been spam e-mails from anywhere else other than authentic correspondence between Bennett and Hitschmann.
He failed dismally in that regard and worse made a foolish and court hostile witness to a worse extent than Hitschmann whom the court had earlier impeached for similar lack of decorum before the court.
In the absence of proof of authentic origins of the e-mails the State did not and does not seriously expert the courts who are custodians of the right for innocent people to remain innocent until proven otherwise to speculate the origins of its evidence.
It was up to the AG to show that his alleged origins were the only origins of the e-mails but he was let down by the ignoramuses he paraded in court as IT experts but turned out to be rank armatures under cross examination by the defense when they committed fatal errors of authenticating spam email generated before the court as genuine.
With that doubt in its mind the trial court could not be expected to risk proceeding with the case at the closure of the State case and the AG does not seriously expect the Supreme Court to order the High court Judge to proceed with the case before those grey areas have been clarified which is no longer possible other than through a retrial before another court which is not in the appeal’s prayer.
Contrary to the AG’s belief that the Judge accepted that the e-mails were found in the possession of an alleged co-conspirator Hitschmann, the trial Judge only acknowledged the existence of the e-mail evidence from wherever it was sourced and wanted the prosecution to enlighten him as to their origins before determining their authenticity as admissible evidence upon which to proceed with the matter which the AG dismally failed to do.
As a consequence the trial court had no option but to stop the trial as courts do not investigate cases but rather determine the justice to be meted based on facts presented to them by the Investigators, the Prosecution and the Defense.
The AG’s averment that the trial court had misdirected itself when it reasoned that police should have investigated whether Mr. Bennett had a computer carrying the e-mail address used in the recovered e-mails is equally without merit.
The fact that Mr. Bennett had absconded to South Africa had no bearing whatsoever in barring the Police from investigating the serious crimes he was alleged to have committed within the country or wherever he had settled through Interpol.
In like manner the contention on the part of the AG that instructs his appeal to be premised on the assumption that the trial court erred at law when it found the testimony of Mutsetse (Perekayi Denshad) unconvincing because of his acknowledged lack of knowledge of the existence of computer criminals known as hackers without any tested evidence to the effect that the persons who discovered the e-mails on the person of Hitschmann are criminals known as hackers is as outrageous as any appeal ground can be couched.
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To go further and argue that by refusing to be fooled by a bush IT expert like Mutsetse the learned Judge contradicted his earlier finding of fact that the mere fact that e-mails can be faked does not mean that the e-mails before the court as exhibit 13 are also fake, exposes the contradictions that are commonplace in the frivolous appeal.
The averment by the AG that the ultimate finding by the trial Court that the e-mails were not admissible on the basis that they are capable of being faked was consequently outrageous and defied logic is the height of irrationality in the appeal.
Mutsetse was chosen by the AG to testify as an expert in a crucial case where an accused was facing the death sentence if convicted.
In such high stakes cases the presumption would be that the AG would find the best that Zimbabwe has to offer in IT expertise such that when the court relies on the evidence the witness provides it will be comfortable that it is using the most accurate knowledge there is on the subject.
What Mutsetse did in his testimony can be compared to a Surgeon Cardiologist who when assigned by the Medical Superintendent to operate on a heart arrested patient proceeds to remove the patient’s Aorta and sutures the incision wound hoping that the patient would be well after the effects of surgical sedation have elapsed.
The patient will be long dead before the surgeon finishes suturing.
In like manner the State case against Bennett fatally collapsed after the AG risked relying on the expertise of Mutsetse whose expertise induced more doubt in the mind of the court than was the case before he gave his evidence.
The AG does not seriously expect to convince the Supreme Court to order the High Court to continue hearing a case where the expert evidence before it is at variance with the body of evidence that is commonplace among IT users.
For the trial court the issue was never whether or not the persons who discovered the discredited e-mails between Bennett and Hitschmann were themselves hackers but rather how they authenticated that the e-mails were indeed undisputed correspondence between the two given the possibilities that anyone can generate such correspondence in purport.
For the AG to then appeal on the grounds that the trial court ought to have inquired into whether or not the persons who discovered the evidence were themselves hackers or not exposes an alarming level of incompetency within the AG’s office.
Will an authentic e-mail change status if discovered by a hacker or a none hacker for there to be a need for the court to be obliged to authenticate integrity credentials of the discoverer before admitting the e-mail as authentic where its authenticity is not in dispute?
The only time a court would probably be asked to question the integrity of the discoverer of e-mail evidence is if its authenticity is disputed by its alleged initiator and forensic expertise pin it on the accused person disowning the evidence in which case it will be necessary to take the precaution of enquiring into the ability of the supplier of the evidence to frame the accused with such evidence.
The finding by the trial court that Mutsetse was not the IT expert the AG had paraded him to be in court after listening to his evidence did not in any way contradict the court’s earlier finding that because e-mails are open to fabrication by hackers does not mean the e-mails before it were fabricated.
All the trial court did was to act on the side of caution that in the absence of expert confirmation of the authenticity of the e-mails before it by Mutsetse whom the AG had indicated had the expertise to do so it was unsafe to proceed on the basis of that evidence to put the accused on his defence.
By admitting that the trial court had made a finding of fact that the e-mails before it could not be simply dismissed as fabricated evidence the AG makes a mockery of his earlier averment the trial court did not even bother to consider circumstances in which the e-mails were discovered in its valuation of evidence the evidence.
If the court had indeed misdirected itself as alleged by the AG it could then not have held that the e-mail evidence could not be discarded simply because it was prone to manipulation by hackers and went ahead to allow submission of evidence by the prosecution that would authenticate the e-mails which unfortunately the AG failed to provide through its so called expert Mr. Mutsetse.
It is frightening that in the appeal the AG suggests that the ultimate finding by the trial Court that the e-mails were not admissible on the basis that they are capable of being faked was consequently outrageous and defied logic.
Not only did the trial Court take a risk and rule in favour of the case proceeding on the basis of the e-mail evidence when all other basis the AG intended to proceed along had collapsed but it allowed the State uninhibited freedom to prove the authenticity of the e-mails which sadly the AG failed to take advantage of.
For the AG to then suggest that the court ought to have proceeded with the case and put Mr. Bennett on his defence and be cross examined on the e-mail evidence that had not been proved to have originated from him and the existence of a Mozambique Bank account belonging to Peter Michael Hitschmann who was not his co-accused and thus not on trial is chilling prospect of a legal precedent that cannot be allowed by any rational court anywhere in the world.
The AG’s averment that Judge made an error at law when he found that the authenticity of e-mails was predicated upon computer forensics and scientific detection, whereas the printouts were admissible on the credibility of the person who discovers them is to say the least a joke.
In a world where there is a limitless body of knowledge that IT can be used to fabricate anything from e-mails to image graphics the expectation would be that those that are custodians of our laws must be worry about the real possibility that IT could be used to smear innocent and unsuspecting law abiding citizens and criminalize them with the real possibility of them suffering capital injustices.
After all it was the same AG who went ballistic when the defence created fake e-mail evidence linking the office and person of the AG to unacceptable legal malpractices and one wonders why the same office would want the courts to accept evidence it would not want to be associated with its office.
The AG’s appeal like the entire case against Mr. Bennett is devoid of merit and a test on Judiciary independence that is not necessary at this point and time in our history.
If any court will allow such a frivolous and vexatious appeal as that filed by the AG we will not be surprised as it will have confirmed widely held beliefs that the Zimbabwe judiciary is highly compromised.
Even if the AG’s application for leave to appeal is denied which is highly improbable in a country where the right of appeal is a central litigation concept, the confidence in Judiciary freedom that the judgement had somehow ignited has been severely dented and will take a long time to restore thanks to Tomana’s Zanu PF patronage.
The prayer by the AG for the Supreme Court to compel the High Court to proceed with a case the court has already determined to be hopeless will not be easy to grant as the presiding Judge Justice Chinembiri Bhunu has rendered himself functus officio by his acquittal of Mr. Bennett.
The situation would have been different if the AG had applied to Justice Bhunu for a review of his findings whereupon the Prosecution could plead with him to reverse his findings by supplying him with compelling fresh evidence linking Mr. Bennett to the crime.
An Appeal to the Supreme Court will never result in an order as prayed for by the AG that;
"Wherefore the appellant prays for an order setting aside the judgment acquitting the respondent at the end of the State case substituting it with an order putting the respondent on his defence."
Unbelievable!
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