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State appeal against Roy Bennett’s acquittal – Bill Watch 19/2010
Veritas
May 17, 2010

The Senate has adjourned until Tuesday 15th June, The House of Assembly has adjourned until Wednesday 30th June

State Appeal against Roy Bennett’s Acquittal

The law allows the State to appeal to the Supreme Court against Mr Bennett’s acquittal, but only if given permission to do so by a Supreme Court judge. The State has sought this permission and the defence has lodged notice of opposition. To get permission the State will have to satisfy the Supreme Court judge dealing with the application that it has a reasonable prospect of persuading the Supreme Court that the acquittal was wrong. Both sides must file heads of argument [their detailed written reasons] ahead of the hearing of the application. The judge will hear the application in chambers, which means that the hearing will not be open to the public. But both the State and defence lawyers will be there to present their arguments. The hearing is likely to be within the next two weeks, but the date has not yet been fixed. If an appeal is permitted, and if it succeeds, the Supreme Court could send the case back to Justice Bhunu to continue the trial or order a new trial before another judge.

Meanwhile, the acquittal stands and neither the present application, nor the lodging of an appeal if the application is granted, will legally curtail Mr Bennett’s liberty, he will not revert to being a person on trial and subject to bail conditions. However, when Mr Bennett went to the magistrates court in Mutare for the return of his bail money, surrendered title deeds and passport, he was told the passport had been taken by a prosecutor and could not be returned. Mr Bennett has still not got his passport back and it is most improper of the State to withhold it.
Note: On Monday 10th May Mr Bennett was acquitted of all charges the State had brought against him of possession of arms and incitement to insurgency, and walked out of the High Court a free man. The judge said the State had failed to establish any connection between Mr Bennett and the crimes the State had alleged. [Judgment available on request.] Initially the prosecution team indicated there would not be an appeal. But on Monday evening ZANU-PF Legal Affairs head Emmerson Mnangagwa [also Minister of Defence] told TV viewers that the acquittal was “appealable”. On Tuesday the AG’s spokesman said the State would seek permission from the Supreme Court to lodge an appeal. On Wednesday the State’s application for permission was lodged at the Supreme Court, and on Thursday the defence lodged notice of opposition.. [Copies of State notice of appeal and defence reply available on request.]

Does GPA allow one party to refuse nominee for deputy minister post?

In the wake of Mr Bennett’s acquittal prominent ZANU-PF members were quick to assert that, notwithstanding his acquittal, Mr Bennett “just can’t” and never will be sworn in as Deputy Minister of Agriculture, the post for which he was nominated by MDC-T over a year ago. They claim that Mr Bennett’s pre-Independence service with the Rhodesian forces, and the fact he was a white farmer, preclude his appointment. MDC-T has insisted that Mr Bennett’s nomination stands. And the Prime Minister has pointed out that under the GPA neither the President nor his party can veto Mr Bennett’s appointment. The Prime Minister is right. Article 20 of the GPA states that the President “formally” appoints Ministers and Deputy Ministers nominated by each of the GPA parties [20.1.3.(k) and 20.1.6.(5)]. Constitution Amendment No. 19 made Article 20 part of the Constitution; the Article appears in Schedule 8 to the Constitution, which starts with a statement that, during the subsistence of the GPA, Article 20 “shall prevail notwithstanding anything to the contrary in this Constitution”. So Article 20 overrides any discretion the President might ordinarily have in such matters. The President cannot reject MDC-T’s nomination of Mr Bennett; he must appoint him.

Law or misuse of political powers?

The continued dragging on of the Bennett case, started in February 2009 and still going despite the acquittal – creates the impression that it has more to do with politics than its legal merits. In law there is a totally clear-cut principle that a person is presumed innocent until proved guilty in court. Nevertheless this universal legal principle has been ignored by the President or his advisors, who are also ignoring precedents both in the inclusive government and also in prior ZANU-PF governments. It is unfortunate that there also seems to be a campaign of disinformation directed against Mr Bennett in an attempt to cloud what is a clear-cut legal issue.

Misinformation: The State press is now downplaying the significance of the legal proceedings [in anticipation of the appeal failing?] and building up an overblown political case against Mr Bennett’s appointment as Deputy Minister of Agriculture by misrepresenting his past [replete with references to the Selous Scouts and “hands dripping with blood”]. The facts briefly are that as a school-leaver in the then Rhodesia all Mr Bennett wanted was to go to agricultural college, but he was called up for compulsory national service and rather than serve in the defence forces he asked to serve in the police instead, which he did from 1974 to 1978. He was then free to go to agricultural college. After Independence he was in fact asked by the people of Chimanimani, where he was farming, to represent them as a ZANU-PF candidate and was at that time willing to do so to serve his country. But he did not make it through the party primary elections. Later, after MDC was formed, he exercised the right of every citizen, enshrined in the Constitution, to join the political party of his choice.

Precedents: Precedents argue against the refusal to appoint Mr Bennett. Other Ministers in the Inclusive Government were appointed and sworn in last year despite having serious criminal charges pending. Going further back, ZANU-PF Ministers actually found guilty by the Electoral Court of involvement in election violence in 2000 were permitted to retain their Ministerial posts and managed to keep their seats in Parliament by noting appeals, which were never heard. Even further back, after Independence several former Rhodesian Front Cabinet Ministers were appointed to key Ministries, including the Ministry of Agriculture. And as even some prominent ZANU-PF political and business figures have a “Rhodesian past”, it is invidious to single out Mr Bennett. The political attack on one of MDC-T’s nominees and refusal to swear him has no basis in law, facts or precedent and it is breaking not only the letter but the spirit of the GPA and is discrediting the “rebranding of Zimbabwe”.

Defence lawyer honoured by American Bar Association

Senator Bennett’s lead defence lawyer, Beatrice Mtetwa, is to receive the American Bar Association’s 2010 International Human Rights Award for her “extraordinary contributions to the cause of human rights, the rule of law, and the promotion of access to justice in Zimbabwe”. The award will be presented at a ceremony in San Francisco in August.

Perception of rule of law observance vital to investment

Direct foreign investment in Zimbabwe is essential for the development of the economy. Serious investors seek assurances that they will be investing in a country where the rule of law will be observed by the government and the courts are truly independent. The potential benefits from the Bennett acquittal may have been wiped out by the disappointing post-acquittal developments. Mrs Mtetwa and other Zimbabwean human rights defenders may have many battles still to fight.

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