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Posted by ZDN on November 10, 2009

UPDATE: Harare –November 11, 2009 – The Zimbabwean High Court has dismissed both applications by the State and the defence lawyers allowing the trial of Movement for Democratic Change (MDC) treasurer general Roy Bennett, who is facing charges of treason, to proceed.

Justice Chinembiri Bhunu dismissed both applications arguing that this was a serious matter and could not be determined on technicalities but should be resolved on merit.
“It is my firm view that this matter is crying for determination. This is a serious matter that involves the life of a citizen as well as the security of a country. Accordingly both application are hereby dismissed to ensure that the matter is resolved on merit,” said Justice Bhunu in his ruling on the preliminary issues raised by both counsels in the Bennett trial which resumed on Monday.
The State, represented by the controversial Attorney General Johannes Tomana, had applied for the court to strike off the defence outline arguing that it was not made on time as stipulated by the law and it was an attempt to quash the State case.
Dismissing the application Justice Bhunu said there was no merit in the application since the State could have applied for the postponement of the matter so that they can look at the defence outline.
“It is self evident that the law does not allow for the striking off of a defence outline. The answer does not lie in the striking off of a defence outline and the mere fact that defence outline is a day late does not warrant it being struck off,” ruled Justice Bhunu.
Bennett’s lawyers represented by Beatrice Mtetwa of Mtetwa and Nyambirai Legal Practitioners had applied to have Mutare arms’ dealer Peter Michael Hitschman removed from the State’s list of witnesses as they had established that he was not going to give evidence that help the State case.
However Justice Bhunu said there was no way Bennett would be prejudiced if Hitschman testifies in court.
“I fail to see how the calling in of the witness (Hitschman) can be prejudicial to the accused person (Bennett). The arguments by the defence counsel can only affect the weight of the evidence,” ruled Bhunu.
Justice Bhunu however did not touch on the application by the defence counsel to have the AG investigated for his conduct in dealing with the Bennett case. The matter was adjourned to Wednesday mid-morning for continuation of trial after both counsels said they had commitments elsewhere.

Zimbabwe’s most anticipated trial produced high drama, as expected. The MDC Treasurer Roy Bennett is on trial in the High Court on charges of possessing firearms for purposes of deposing a lawful government through use of insurgency, banditry, sabotage and terrorism’. If convicted he could face a death sentence or life imprisonment.

• The trial commenced in Harare’s High Court building as planned on Monday 9 November 2009, with Justice Chinembiri Bhunu presiding, and with Zimbabwe’s Attorney-General Johannes Tomana prosecuting the case personally, instead of the state prosecutors. Outside the court there was strong presence of riot police armed with tear gas, watched by peaceful crowds of observers, including a large contingent of trades union members.

• The AG Tomana outlined the state’s case against Roy Bennett, and asked the court to throw out the Defence Outline, saying it did not comply with the Criminal Procedure and Evidence Act, in that it had contained “derogatory’ language and furthermore it was served two days instead of three days before trial.

•  Bennett’s lawyer Beatrice Mtetwa opposed this application and responded by accusing Tomana of lying to the court by claiming that Bennett’s alleged accomplice (Peter Hitschmann) will give evidence against him, when he has indicated that such evidence does not exist and furthermore, that Hitschmann has refused to testify as he has no evidence.

• While Mtetwa was making her submissions, CIO and Police officers tried to disrupt the proceedings by bringing into court several cases of ammunition and rifles which the State intends to parade as evidence.

• After three hours the Judge Bunhu announced that the ruling would be passed on Wednesday.

• However, late Monday afternoon, Ms Mtetwa was informed that the Judge had completed his ruling and would hand it down in Court Tuesday 11am.  This was later changed to 10am.

Tuesday 10 November

• Just as everyone was seated, Director of Public Prosecutions, Florence Ziyambi was seen talking to Tomana and it was announced that the Judge was not available today for the ruling so it would be moved to it original date, Wednesday at 10 am after all.

This caused a sensation among the press, diplomatic corps, local human rights lawyers, and regional lawyers who are observing the proceedings.

Speculation is high that the Judge has been prevented from announcing his ruling on the previous day’s applications, because the state has no credible witnesses or evidence. Observers suspect that Judge Bhunu has been ‘interfered with’ in some way, in order to keep the case on the boil. If Bhunu withdraws from the case for any reason, the trial will have to start all over again, thus giving Robert Mugabe a fragile excuse to carry on refusing to swear in the Deputy Minister of Agriculture.

Bennett, a former policeman, was a member of Zanu-PF for many years, serving as councilor for Chimanimani. He offered to stand as Zanu-PF candidate for the 2000 Parliamentary elections, but his candidacy was withdrawn by the Zanu-PF hierarchy on the grounds that Bennett was ‘the wrong colour’.

The Chimanimani constituents then urged Bennett to stand as the MDC candidate instead, and he went on to win the seat convincingly.

Zanu-PF have never forgiven this defection or the humiliating loss of the Chimanimani seat.