Bennett Acquittal: State appeal without merit

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!

Bennett trial State anxieties and remote controls exposed

Roy Bennett under state persecution for being White and yet capable of attracting the support of Blacks while sustaining MDC-T as a financially stable and viable political alternative to Zanu PF

Chinembiri Bhunu the High Court of Zimbabwe Judge who is presiding over the high stacks political trial of MDC-T Treasurer General Roy Bennett over terrorism, banditry and insurgency allegations has deferred delivering the ruling he had promised the nation on 31 March 2010 to 10 May 2010.

His failure to do so was as he put it. “due to the failure by his secretariat to have the transcript of the matter ready in time for him to peruse the record and make an informed determination.”

To pacify the accused whom the majority believe is being persecuted for his pivotal role in attempts to topple Zanu PF from power through the formidable MDC-T political formation led by Prime Minister Morgan Tsvangirai, the judge waived the bail condition requiring Bennett to report to the police once every two weeks and ruled that the accused could apply to have his passport released if he needed to travel abroad.

But before that police detectives had served Bennett with a summons to appear in a Mutare court on new charges of unlawfully possessing 92 tons of maize at his farm in 2001. Yes 2001 that is some 9 years ago.

The new charges against Bennett are indicative of the anxiety and panic within the AG’s office over the weaknesses that were exposed by the close of the state case chief among them;

 The impeachment of key witness Peter Hitschmann
 The tempering with arms exhibits
 The disclosure that investigations into who paid what amount into Hitschmann’s Mozambique account were incomplete
 The barring of torture induced statements and video footage as legitimate evidence and
 The unconvincing testimony by the so called State’s IT expert one Mr. Perekayi Denshad Mutsetse.

The AG appears convinced that with all these loose ends the Judge will rule against the state's case before the accused is put on his defense.

And to ensure that he does not walk out a free man with a potential claim to be sworn in as the Deputy Agriculture Minister it became necessary to prefer the possession of 92 tons of maize in 2001 charge so that Bennett will remain perpetually facing criminal charges.

That would give President Mugabe a fresh ground upon which to decline attesting Bennett into the government as Deputy Minister of Agriculture as he has done to date on the basis of the shaky banditry, terrorism and insurgency charges that were due to be decided against the state by Justice Bhunu on 31 march 2010.

Away from the Courts there were political negotiations that were taking place and hoped to support Justice Bhunu’s acquittal of the accused who by the time of acquittal it was hoped would have been withdrawn from designation as Deputy Agriculture Minister by his Party and assigned elsewhere.

Unfortunately the negotiations stalled and the signal Justice Bhunu required to acquit the accused did not materialize even after delaying proceedings n court by over 2 hours while waiting for the green light to do so from the political negotiators that never was to be.

In an interview with VOA Studio 7 radio Bennett disclosed that the Judge was rude and discourteous to him and his Counsel when delivering the postponement ruling on the matter.

The judge was indeed angry and uncomfortable not with the accused and his counsel but rather with the political interference in his work that had barred him from delivering a determination that the State security agents and prosecution services were already anticipating as evidenced by the preference of new charges on the accused just before the expected pronouncement of Bhunu’s judgement.

Now the distraught judge has been forced to defer the matter to 10 May 2010 when he is sure that the political negotiations will have been finalized and the President will have used the occasion of the Independence celebrations to hint on what course of action will be expected of the judge in this matter should the political stalemate over his assignment be still continuing.

No wonder why the MDC-T national spokesman Nelson Chamisa has come out strongly declaring that Bennett’s assignment will not be compromised to suit the political whims of Zanu PF that are not only outside the spirit and letter of the GPA but also unconstitutional.

The MDC-T is fully aware that it has the upper hand in the Bennett case as with or without his appointment his political persecution through trumped up charges in courts is drawing immense political sympathy and support not just for Bennett as a person but the party he belongs to.

Bennett Trial: Prosecution in panic mode

Controversial self proclaimed Zanu PF apologist Johannes Tomana is finding the going tough in the political persecution of MDC Treasurer General Roy Bennett to a point where he now is resorting to cutting corners to pre-empt the court's determination. 

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.

Bennett trial: AG hanged out to dry

Under siege MDC-T treasurer general riding the crest of tide of Zanu PF scripted persecution from the AG's Office complicated by the involvement of a judge the defense wanted to recuse himself from presiding over the highly charged and politicised case

Justice Chinembiri Bhunu ruled that evidence of e-mail correspondence between Peter Michael Hitschmann and Roy Bennett be admitted as evidence upon which the MDC-T Treasurer General must continue to be prosecuted in the matter where he is accused of amassing weapons for the purpose of committing acts of insurgency, banditry and terrorism against the Zanu PF government led by President Mugabe.

The learned Judge held that;

Hitschmann was an accomplice in the commission of the crime by Bennett as evidenced by his previous conviction on a lesser charge of possessing illegal weapons in 2006.

The entire State case hinges on evidence contained in the e-mails in dispute which must be admitted as they were transmitted before the Hitschmann was tortured and thus were not induced through torture as was the case of statements and video footage he has thrown out.

Johannes Tomana the Attorney General (AG) who has taken personal charge for Bennett’s prosecution sighed with relief from the realization that his persecution prosecution of Bennett was once again back on track following near collapse when handwritten and attested statements from Hitschmann as well as video footage from CIO and Army investigators that he had intended relying on had been previously dismissed as inadmissible evidence because of procedural flaws in the manner they were obtained.

The AG’s relief was short lived as the defense started discrediting the e-mail evidence to show why such evidence is unsafe to rely on in criminal prosecutions carrying the gravity of the prescribed capital punishment of the death penalty and or life imprisonment attendant in the Bennett case.

Nyasha Matare a CIO operative masquerading as a Clerk Typist was given an e-mail sent by Johannes Tomana implicating the AG in the commission of the crime by Bennett.

The incensed AG shot up his seat in protest at the unwarranted production of such falsified and damming evidence by the defense with the intent to tarnish not just his personal image but also bring into disrepute the office of the AG.

"If those documents are being produced to attack the person of the AG, they should be excluded. They are being used for the purposes of embarrassing my officers and me.

"This is not my trial, neither am I a witness in this case. From the beginning the defence has been trying to drag the person of the AG into the case. There is no need to caricature the person of the AG. That is an impermissible manner of proceeding with such a serious case.

"Of record, I have complained about the intemperate language used by the defence. By now, it is quite clear that the circumstances under which the AG has been forced to carry this State burden lacks insulation provided for under the powers of the AG," objected a furious Tomana.

But surely what is good for the goose must also be good for the gander in such a serious case.

It was the same AG who had hitherto caused the arrest and prosecution of Hitschmann’s legal counsel Mordecai Mahlangu simply because he had dared write to the AG informing him that his client would distance himself from statements that were extracted from him in March 2006 through torture.

The AG classified such correspondence a prosecutable attempt to defeat the course of justice which with hindsight now looks very damaging for the AG as the same evidence was rejected not once but twice by the High Court and Mahlangu was acquitted of the frivolous and vexatious charge leveled on him by the AG.

It is the same AG who has applied and been granted permission to use cyber evidence against an accused facing capital punishment if convicted who does not want the same evidence adduced in the same court if it implicates his office in the commission of the crime and we wonder why.

Could it be because he realizes how unsafe his key source of evidence against the accused is and how easily the source can be manipulated to incriminate the innocent and unsuspecting victims like him being made an accomplice in the commission of the crime he is prosecuting?

"The problem with counsel for the State is that when he enters this courtroom he considers himself the AG and not just a representative of the State.

"Even if you are a professor, doctor or whatever, when you are in court you get the same treatment as others. Mr Tomana is at par with me when he is in court and he does not get preferential treatment from the court because he is AG.

"You cannot stop the accused person from demonstrating the fakeness of the documents. How do you expect him to prove his case?" defense counsel Beatrice
Mtetwa provided the answer in response to the prosecution objection.

Hopefully the defense has not finished cross examination of the Nyasha Matare on this witness because there are many issues this witness can be useful in demonstrating the innocence of the accused in this matter.

Matare must be examined on the reasons why it was necessary for her to be called upon to print e-mails from Hitschmann’s instructions as if there were no other typists in the POLICE FORCE in Mutare whom the Police could have assigned the task given that they had to follow instructions from the impeached state star witness rather than use their own expertise in hacking into private e-mails.

Given that she has already admitted that she downloaded the e-mails from a court exhibit the defense must insist on her performing the procedure in-loco on the same computer for the court to be left in no doubt that she indeed downloaded the e-mails in evidence from the said computer.

Matare must also be asked to use the same computer to print the source document of the e-mails using free IP tracking software on the web which will show the origins of the emails in an IP address and the time it was generated as well the route it was delivered and the recipient IP address which must all link to the accused and his accomplice.

Such information will be useful in confirming or dispelling the Judge’s contention that the e-mail evidence was in existence prior to the impeached witness and accused’s arrest.

Further such evidence will be useful in locating the accused and the impeached witness at the crime scene and form prima facie evidence for their continued prosecution.

In the unlikely event the e-mails sources and destination link to the accused and impeached witness’ IP addresses that can be established in similar fashion, the defense will still have the opportunity to distance their clients from the crime by demonstrating that their clients could not have been involved in the communication based on alibi’s and merits contained therein.

Justice Bhunu has made so eyebrow raising decisions in this case to be trusted in his neutrality in presiding over the matter.

It was the same judge who determined that Bennett and Hitschmann were facing serious allegations that needed to be examined in a full trial rather than be dismissed on technicalities.

It was him again who impeached Hitschmann on the grounds of demeanor in court that the prosecution had not raised in its application.

Yet again it is the same Judge who has held that evidence in e-mails that were yet to be of record was sufficient grounds upon which the state must proceed with the prosecution and more alarmingly that the evidence was there before the witness was tortured into implicating the accused and thus is admissible in his court.

The paradox of it all is that the Judge’s findings indicate that he is getting feeds on the matter outside court hearings and is not reluctant to rely on such improper submissions in determining the matter.

However because the Judge and not the prosecution has been instrumental in keeping intact a case that is without merit, the AG finds himself in great difficulty responding to defense cross examination of issues that are not of his conviction but from third parties yet to be identified as will happen in due course of the trial.

For now the AG has surely been hanged out to dry and he is not coping well with the heat as evident from his furious interjections. He can however take solace in that so far the Judge has not let him down and hope that support will continue.

Bennett trial: The wheels are coming off the State case

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?

It is beginning to look like there will be a few more bold heads within the Zanu PF leadership when the trial of MDC-T Treasurer General Roy Bennett comes to an end.

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.

Bennett trial: AG runs into wall of denials

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.

Bennett trial: Judge extends the long rope to the AG

Peter Hitschmann impeached for demeanor in court and not departure from previously disowned statement as applied and intended by the AG.

As we previously predicted Justice Chinembiri Bhunu has granted self confessed Zanu PF Attorney General Johannes Tomana his wish by holding that star witness in the Roy Bennett banditry, insurgency and terrorism trial Michael Peter Hitschmann has turned hostile and must be impeached.

His reasons in arriving at that verdict had nothing to do with submissions tendered by the incompetent AG but rather his subjective judgement of the attitude of the state’s star witness turned hostile.


The learned judge held that Hitschmann had turned hostile to the prosecution case not because he had previously substantively supported it but rather because he had conducted himself in a manner that is against the State.

“The witness’s conduct in this case is against the state,” held Justice Bhunu.
Justice Bhunu held further that it was incompetent for the State to attempt to use the statement that had hitherto been disowned by the witness as the basis for impeachment.

In a clear case of the Judge turning prosecutor he then introduced a fresh ground for impeachment the state had not relied on in its application when he went on to hold that;

The demeanour of the witness in court had left him convinced that the witness had turned hostile to the State case and thus justified him granting the application on that alternative legal principle notwithstanding that the State had not relied on that alternative in formulating its application for impeachment.

“When the witness took the stand, he portrayed himself as someone who was deeply aggrieved and had an axe to grind with the State,” opined Justice Bhunu adding further that;
In his view the witness who is a former Police Officer views his former colleagues in the Police force as incompetent and sees the State as an adversary following his serving of a two year sentence after conviction in a matter he has since appealed against but has not been set down for resolution.
The Judge also found it absurd that the star State witness had uttered that he had been intrigued by Bennett when he watched a televised programme from Parliament that showed the MDC legislator assaulting Justice Minister Patrick Chinamasa and on that basis he ruled that;

“The witness in this case is accordingly an adverse and hostile witness and the State is obliged to cross-examine him.”

It raises questions about Justice Bhunu’s impartiality in this matter given a previous defence application for him to recuse himself from the matter that he dismissed.

Now that the State has got its wish to have its star witness impeached, the AG is now in the spotlight.

Given that the witness was not impeached on any departure from a previously attested statement but merely on his demeanour in court the AG must now expose how such demeanour is unfavourable to his case in his cross examination of the witness.

In doing so, he will attempt to use every means possible to commit Hitschmann to the words in the statement that the Court has persistently barred him from producing as evidence in the current trial.

In other words the AG will attempt to rewrite the statement he relied on to order Bennett’s prosecution through oral evidence extracted in the cross examination.

This will be a onerous task for the AG regard being paid to the consistency with which the witness has maintained that he was tortured into making the statement implicating Bennett.

Even if he should be tricked into making a volte face implicating Bennett once more the Court will have greatest difficulty in choosing which aspect of his testimony to rely on in coming up with the determination of the case.

Already the witness has unsuccessfully applied for personal legal representation and the defence can argue that this has left him exposed and insecure should he depart from his viva voce evidence.

Either way the State case appears very much in disarray at the moment and will require the best of the AG to put back on track.

But even if he fails the Judge in this matter can be expected to panel beat the matter with subjective reasoning to justify his determination which will only lead to an appeal being lodged to the Supreme Court in the likely event the State secures a flawed conviction.

What is evident for now is that the Judge has unintentionally thrown the AG a long rope with which to hang himself in this matter.

Relishing the chance to shine the AG went straight into cross examination of his star witness turned hostile by the court.

The rush was obviously motivated by the need to surprise the witness into confirming the statement he has disowned before he got any chance to consult anyone else.

It is a futile but nonetheless worthwhile attempt by the AG who refused to heed advice to abandon the case as it was and will always remain politically motivated rather than a genuine case of criminal conduct by the accused.

Impeachment Tomana’s trump card in Bennett Trial

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.

Of Silence Chihuri and MDC rogues

Former MDC, MDC-T and MDC-M nowm MKD member Silence Chihuri

If ever there was doubt as to why MDC is concerned about the functionality of its external assemblies then Silence Chihuri has unintentionally put those doubts to rest.

Amazingly all it took MDC Treasurer Roy Bennett to extract detailed confirmation of party fears was to irk a rogue former executive member of the Party’s UK and Ireland assembly by using the word rogue to describe suspected corrupt fiduciary transactions in foreign based assemblies in the name of the party when they were for personal benefit of the rogue individuals.

Silence Chihuri a former Treasurer of the party’s UK and I assembly ostensibly still deluded that he has a mandate to defend the external assembly he once led notwithstanding that he has not only been removed from the executive but has moved ahead to become a self avowed MKD member fired broadsides at the MDC Treasurer that exposed all that is suspiciously wrong about the party’s external assemblies operations.

Had Chihuri still been a party member it would not be out of line for the party to haul him before a disciplinary committee to answer charges of gross insubordination and conduct likely to put the name of the party into disrepute.

But more worrying is the muted silence of the suspended UK and I executive to at the very least distance itself from the vile that Silence Chihuri spewed against senior party officials.

Granted the executive is under suspension and barred from acting in the name of the party but in the exceptional circumstances where a former member whose exit from the party is not envious takes a defensive position cynically couched in language that appears to have come from the aggrieved currently suspended executive of the province it is most unwise for them to keep muted silence over the development.

Any reasonable person would speculate that Chihuri is bidding for the suspended executives for personal reasons to do with the manner he left the party in frustration and in a bid to sow seeds of discontent among the leaderless party membership in the UK and I province.

Be that as it may what Chihuri said cannot be left unchallenged because there is no better example of the rogue elements the MDC Treasurer intended to expose than Chihuri.

His vile protest is premised on inside knowledge of the party procedures he was exposed to as an executive member of the province. It is unethical and unprofessional for people in positions of trust to use knowledge gained in the course of execution of executive functions to spite other former or current executives in the public domain such as the press and he knows it.

His accusations are political garbage expected from disgruntled former members attempting to get even with a party they feel failed to appreciate their contribution to the cause.

Chihuri falsely alleged that MDC National Treasurer Roy Bennett wrongfully and spitefully labeled all members of the party in external assemblies’ rogues when they have sacrificed so much to sustain the party.

The reason the National Treasurer did that was because of a combination of his colonial superiority hangover and the unmerited promotion he has been awarded in the party that has seen him occupy a position way beyond his competence according to Chihuri.

“There is nothing racial about Bennett's comments. It is a case of mentality and sadly, has become part of a chronic and endemic problem in the MDC that sees obscure figures being catapulted to the top echelons of the party at the expense of the hardworking and dedicated cadres of the party. It's not just Bennett who has benefited from that profligacy in the MDC although he is by no means the biggest beneficiary,” Chihuri ranted.

He went on to single out the Premier’s spokesman James Maridadi and Minister of State in the Premier’s office Gorden Moy as examples of the undeserving beneficiaries of MDC profligacy that rewards nonentities ahead of party stalwarts without naming them.

The tirade that followed exposes the rogue element in Chihuri. He is so bitter with the current leadership of the party he once served but later abandoned first for the 12 October splinter group now led by Professor Mutambara and later for the moribund Mavambo Kusile Dawn (MKD) fronted by Dr Simba Makoni where his membership still subsists that he even suggested that the party must appoint its deceased members to the positions as a reward for their hard work during their lifetime.
How that physical impossibility can make sense only a bitter Chihuri can fathom.

“It is the ultimate mockery to those who have died in the name of the MDC party. There is no culture of appreciation or rewarding of the hard work in the MDC. What we see is the same jobs-for-boys culture that is rampant in ZANU PF. It is a real disgrace,” lamented a distraught Chihuri.

Equally outrageous is the suggestion by Chihuri that those that were not there when the party was formed or fighting for political space must not derive benefit from the party’s success.

If the Zanu PF jobs-for-the boys culture is objectionable to Chihuri for real the expectation would be that he would be equally appalled by the same party’s culture of impunity and possessive ownership of fruits of the struggle for national sovereignty.

But no Chihuri is comfortable with the MDC if it reserves positions for its dedicated activists regardless of the requirements of the positions that may not suit the activists in terms of grooming qualifications and experience in addition to political correctness.

“Bennett saw a fantastic opportunity to settle an old score because he is one of those few but very hardcore white people who never fully and whole heartedly embraced the idea of a black government in Zimbabwe,” Chihuri lapsed into the past in his uncontrolled ire.

He completely lost his bearings when he accused the party of being shamelessly in dereliction of founding principles and allowing itself to be abused by people who do not have the interest of others at heart like Bennett and we assume James Maridadi and Gorden Moyo.

But facts on the ground seem to suggest to the contrary that these same people are loved by the very people they are exploiting if Chihuri’s assertions are anything to go by and we wonder why when they are as bad as he depicts them to be?

“I detest Jonathan Moyo and most of his wapped political views and especially policies during his short but disastrous spell in government. But Moyo's analysis of Bennett was just as spot as his accurate analysis of Mugabe in the late 1980's and early 1990's,” Chihuri protested

This gem was thrown in to justify the outrageous racist attack he was about to launch on Bennett.

“Everyone knows that Bennett was in the notorious Selous Scouts and that he also served in the brute Rhodesian army.

In 1980 Bennett and some of his unrepentant friends refused flatly to accept the first black government of Zimbabwe and they continued to vote for the Rhodesian Front until it was disbanded due to waning fortunes,” ranted Chihuri.

He conveniently forgot to remind us that Zanu PF had agreed to work with these unrepentant whites for 10 years and even went further to unconditionally pardon them for their war crimes that he documented and appointed some of them to key ministerial positions long after the agreed ten year period had expired without offending him in the slightest way.

But for the MDC to settle on Bennett is an inexcusable and unpardonable political blunder for Chihuri. We wonder why what is good for him Zanu PF is detested when dished by MDC.

“The main issue with the Rhodesian Army was not their so-called "cause" since they were adamant that they had a right to fight for "their country. It was rather their warped ideology that said black lives were not to be valued at all and this was showcased in the manner in which innocent civilians suffered at the hands of the merciless Rhodesian forces. Everyone knows how brutal the Rhodesian armed forces were to the Zimbabwean povo because they saw the Zimbabwean black people as nothing more than flies that had to be killed for the most stupid reason,” he tore into Bennett’s personal integrity.

All because he has been over promoted by the MDC ahead of unnamed preferences of Chihuri.

“I dont like invoking the gory war memories at all, but history must never be forgotten or ignored. And most importantly, the MDC party must never be used as a political veil behind which people with a dodgy past come and find ready refuge,” Chihuri added.

The problem is the apology was of no consequence as he had invoked the memories in those whose relatives were murdered in cold blood not just by the Rhodesia forces but also by the Liberation fighters over false allegations of having sold out to the Rhodesia forces.

But it’s a risk only insensitive rogues are prepared to take in order to score cheap political points over their detested opponents.

“Yes there are people who have been engaging in unacceptable if not illegal tendencies in the name of the MDC party but not everyone is as rogue as Bennett seems to very carelessly insinuate,” Chihuri made a veiled concession.

His gripe was that Bennett had labeled everyone a rogue but there is no evidence to support that assertion.

If anything the MDC Treasurer made it clear he did not know the extent of the rogue activities that have been carried out in the name of the party without benefiting the party and signaled an intention to dismantle the party’s external structures to stop the abuse.

According to Chihuri the party leadership is to blame for the rogue behavior in the UK and I province.

“These are people some of whom have had very dubious stints in ZANU PF and they jumped ship onto the MDC and they have imported the destructive and in some case deadly politics of ZANU PF.”

Not being a member of the MDC it is clear what Chihuri’s mission is in his accusations of the MDC leadership for a shortcoming the leadership has acknowledged and taken first steps to rectify by suspending the UK&I executive committee and instituting investigations Chihuri is opportunistically attempting to exploit by pre-empting outcomes.

Casting aspersions on the integrity of the party leadership is the art of politicking.

Chihuri did a good job of it by accusing the party of commercializing its brand. He cited admission charges as high as £75.00 per head levied on members wishing to meet the Premier as a classical example of the commercialization malpractice by the party.

While we agree that charging foreign domiciled citizens anything at all to meet their Premier when he visits the country in which they reside is outrageous we must disagree with Chihuri in the context he puts the charges.

Citizens were never charged to attend a public meeting with their Premier or any other visiting dignitary from Harare for that matter.

On the contrary the MDC as a party went out of its way to organize a public rally for its members with their Party President and this meeting was free for all interested citizens and non citizens of Zimbabwe.

After the public rally where the ungrateful and disrespectful rogues harangued and jeered the Premier the Province had organized a Private dinner function with the Premier which was open to those willing to pay the exorbitant fees now being complained about by Chihuri for political capital.

Since it was a voluntary Party and not government function where the Province made it clear upfront that attendance will be subject to the payment the complaint being raised is inconsequential and inane.

The attempt to blame the Morgan Tsvangirai the MDC President for having kept a distance from Provincial fundraising initiatives by not speaking out against the charges was to say the least a desperate and cynical low in politicking by Chihuri.

The members of the MDC were and will always be free to support or boycott their party’s fundraising functions as they deem fit but for non members to complain over functions they never attend or approve is most absurd.

Even if the venues are donated and there are no administration expenses on the part of the Provincial executive if they are using the venues for fundraising activities it does not and will never make sense if they in turn donate the venue for the free usage by members.

Common sense dictates that if that were to happen no funds would be raised as intended when seeking the donated venues.

“What I see lacking these days and has led to this sorry state of affairs is proper accountability due to little or non-existent supervision between the national party treasurer (Bennett in this case) and the UK finance department.

This has allowed some other shadowy "treasurers" to assume Bennett's role and in the process pocketing party money,” Chihuri unconditionally conceded at last.
These are the rogues the Treasurer exposed and not everyone as Chihuri is attempting to make us believe.

Having rubbished Bennett as an incompetent Treasurer and unfit person to lead the MDC it is that Chihuri suggests that he should improve on his supervision skills and accept responsibility for system failures in the party’s financial controls.

“ The other worrying perception shown by Bennett and other very mindless MDC leaders is to think that it is a privilege for all the Zimbabweans in the Diaspora to be members of the MDC! How disturbingly wrong they are because it is a right of all Zimbabweans who have been forced out of the country to join a party of their choice and support it from wherever they are in the world, Chihuri rightly cautioned the party.

Whatever his motive for giving the party he has abandoned advice, the advice cannot be faulted.

Comparing Fletcher Dulini and Roy Bennett’s successes or failures as MDC treasurer was ill advised as it only managed to show that of the two Bennett has been the more successful given party performances in the last General elections and those are the results that really matter not the academic qualifications that Chihuri lauds.

If the control systems were in place and Chihuri being a former member has done the proper handover takeover to his successors there should be no excuse then for the current lapses.

Could it be that Chihuri did not do the expected handover takeover when he left because he had an ulterior motive to see the party he had once served collapse because it had mistreated him?

While everyone has the right to support a party of his choice from wherever he is domiciled such membership does not necessarily have to be in a structured format like a Provincial Assembly or Branch more so for a Party that has leadership of the government.

The only justification for exiled assemblies was because the people were being denied freedom of political association within the country. Now that the MDC
President is the leader of government it is rather paradoxical that the party should be seen to be strengthening external structures that were justified by repression within the country unless the Premier is indirectly acknowledging that his government is continuing with the repression.

“It is mere grandstanding for Bennett to say that all external MDC party structures will be disbanded because there are several thousands of Zimbabweans in the Diaspora who will continue to agitate for change in Zimbabwe and it is up to the MDC to give them a leadership that will inspire them to be part of the party,” concluded Chihuri.

But given the stark reality that the MDC is an integral component of the government how does he justify the seemingly paradoxical position that the party’s external assemblies can raise when the government claims it has democratized political space within the country.

Which other serious political party operating in a democratic country can boast exiled structures if we may ask?

Forward thinking dictates that we must accept that in the long term it will work against the MDC to sustain exiled political structures which it may find difficult to control if it becomes the ruling party and they refuse to tow the line accusing leadership of impunity.

“The way forward for the MDC is to ensure that there is proper supervision of all its valued external structures,” Chihuri opined.

But the opinion is formulated on the belief that the MDC will need the external assemblies in perpetuity which is outrageous and shortsighted in terms of its
implications to measures of democratic governance within the country.

“There are a lot of people who were not necessarily by-standers in ZANU PF who are now already front-runners in the MDC?” Chihuri disclosed.

That is the reason why it may not be wise for the party to continue with these external structures that have sprung several surprises for the party.
The history of the party leadership in external assemblies is not rosy as it has been characterized by public smear campaigns over issues that do not necessarily add value to the democratization process so imperative in the country.

This is not to say that the exiled supporters have not played a significant role in propping up the party but merely to flag that within the exiled supporters there are several who for personal reasons want to retain justification for asylum statuses wherever they have sought refuge and such people will not want to see the success of the democratization process and will rightly or wrongly use external structures as justification for their claims.

Such a development would greatly embarrass the MDC if it won the elections to wing up the SADC imposed coalition government as is likely to happen. How will the MDC justify existence of its external assemblies when it is the governing party in the country?

Before labeling MDC Treasurer a real rogue it appears the real rogue Silence Chihuri who is no longer a party member did not look back to see what his history within the MDC formations and now in MKD reads like.

It reads exactly like Jonathan Moyo, Edgar Tekere, Dr Simba Makoni, Dr Shakespeare Maya or Dumiso Dabengwa’s political CV and for many Zimbabweans that is one political CV any aspiring leader must attempt to avoid if they are to realize their long term political.