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The Legal Monitor - Issue 23
Zimbabwe Lawyers for Human Rights (ZLHR)
November 30, 2009

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State's star dims

The Attorney General, Johannes Tomana last week failed to produce the State's star witness, Michael Hitschmann to testify against Deputy Agriculture Minister-Designate Roy Bennett forcing the defence lawyers to raise accusations of deliberate attempts to fumble the matter.

On Friday Tomana, informed High Court Judge, Justice Chinembiri Bhunu that the State's sixth witness was arms dealer Hitschmann - who is said to have implicated Bennett in plotting to committ terror activities. But he was then told by his junior law officer Chris Mutangadura that Hitschmann was not in court and could not make it on time.

"He (Hitschmann) did not come because we thought he would not (be required to) take the witness stand. This is a situation we did not anticipate," said Tomana, who is leading the prosecution team. He added: "The way forward is to adjourn to the next available date."

That attracted criticism from the defence team led by Beatrice Mtetwa, who then applied for the release of Bennett's passport and the relaxation of bail conditions. She said the State was making a deliberate attempt to drag the matter on. "The star witness is no longer shining as we were made to believe," added Mtetwa.

"The accused (Bennett) is under severe restrictions; if the passport can be returned so that his life can resume and he enjoys his right of movement as enshrined in the constitution," said Mtetwa. "Given that the State has been responsible for all the adjournments, giving him (Bennett) back his passport would be a balance based on the presumption of innocence and moreso in light of the festive season."

But Tomana said Bennett was facing a serious charge. "The State is not amenable to the relaxation of the bail conditions. Those (existing bail conditions) are the minimum amenable conditions until the case is finalized." Justice Bhunu refused to release Bennett's passport.

He said the trial would resume on January 12 next year.

Charges against Bennett arose in 2006 when Hitschmann was allegedly found with an arms cache, which the prosecution said he acquired after he was given $5,000 by Bennett to topple President Robert Mugabe.

Bennett's co-accused, Hitschmann was acquitted of the same charges of terrorism.

Bennett denies the charges, which his Movement for Democratic Change (MDC) party - led by Prime Minister Morgan Tsvangirai - says are politically motivated to keep him out of the unity government formed with President Mugabe's ZANU-PF party. The charges carry a death penalty upon conviction.

The MDC says Zanu PF is frustrating efforts to swear in Bennett as Deputy Agriculture Minsiter. Tomana's prosecution seems to be heading for collapse with the State witnesses having so far failed to directly link Bennett to the charges. One of the witnesses admitted that the police had not recorded an inventory of arms alleged to have been recovered from Hitschmann's house in 2006. Another witness failed to explain why weapons alleged to have been recovered had increased from nine to 49.

On Friday, a policeman said he had not recorded the serial number of a laptop recovered from Hitschmann's house. The laptop is said to have contained emails that implicated Bennett in terrorism activities.

The State alleges Hitschmann was paid by Bennett to buy weapons to assassinate government officials. Police say Hitschmann implicated Bennett in the procurement of the arms, but Bennett's lawyers argue that the arms dealer had been tortured into making false confessions. Hitschmann has since written an affidavit saying he does not want to testify against Bennett on the grounds that he was tortured.

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