Attorney-General To Bennett Laywer: "That's Is Not What We Expected You To Do".

Zimbabwe lawyers march in the rain in Harare yesterday, Monday 16 November 2009. They were on strike and were on their way to the Ministry of Justice to hand over a petition protesting the harassment of their profession by the police and by Attorney-General Johannes Tomana.

Harare, Zimbabwe, 17 November 2009

Attorney-General Johannes Tomana today may have inadvertently revealed the puppet-master's hand behind the trial of Roy Bennett when he told the presiding judge that a ruling he made today was not what was expected.

Tomana was so thrown off-balance by the departure from the script he had in his mind that he asked for adjournment of the trial, which was granted by Bhunu.

And you may also have noticed that the judge is still presiding over the Bennett case despite being asked to recuse himself by Bennett's lawyers, who say he has already shown prior bias in a matter relating to Peter Hitschman, the main State witness who has implicated Bennett.

The judge met with Bennett's lawyers, led by Beatrice Mtetwa and the Prosecution, led by the Attorney-General himself in his chambers where he explained to them he was not going anywhere.

He did not have much choice, really.

Stepping aside would have tainted him in the eyes of the State and would have been a basic admission that his judgement is questionable. Not a good thing for someone who judges for a living.

But, like I have pointed out before, this means that the Bennett case is far from over. Should the man be convicted, the Defence will almost certainly apply for a mistrial to be declared, arguing that the judge had prior bias and refused to recuse himself.

Should Bennett be found guilty, it is the Attorney-General's intention to also appeal on the basis that the charges of prior bias against the judge may have influenced him to acquit the accused.

Either way, the trial of Bennett will outlast the life of this Inclusive Government of Robert Mugabe and Morgan Tsvangirai.

In any case it was interesting today to hear the litany of the alleged sins of Roy Bennett as levelled against him in open court today by the Attorney General. Bennett is accused of "possessing weapons for insurgency, banditry, terrorism and sabotage, incitement to commit insurgency, banditry and terrorism." He also stands accused of masterminding the sabotage of a microwave link.

Bennett pleaded not guilty.

Tomana then brought out his first witness, a Superintendent Makone, who is the investigating officer in the matter of Bennett and was apparently the one who unearthed the weapons at Hitschman's farm.

Tomana had not gone far in his questioning of his witness when Beatrice Mtetwa, for Roy Bennett, objected that the Attorney-General was not only leading the witness, but also leading him on the basis of hearsay, which she argued could not be admissible.

The judge retired to his chambers to consider this and came back to rule in favour of Mtetwa, ordering the witness to stick to the facts that he saw for himself and the actions that he took.

It was at this point that the Attorney-General said the ruling was "unexpected" and he therefore requested an adjournment until tomorrow. The judge granted this.

It is a reflection of how shaky the State's case is that it can be thrown off-balance by such a ruling, which should be factored into any prosecution's strategy.

It exposes the fact that the Attorney-General only has the two witnesses to this thing: Peter Hitschman, who now disowns his statement implicating Bennett, saying he was tortured into it, and this Chief Superintendent Makone, who unearthed the arms and works for the government.

It is also fair to ask why the Attorney-General did not anticipate that the judge would make this ruling, which was the correct and professional one to make. Was it because the man is not relying on the case to stand by itself, but on help from other sources, such as the bench?

It is a very serious question that raises questions about not only the strength of the State's case, but also the competency of the Attorney-General t be our supreme law officer in Zimbabwe. If he can be thrown off-balance by such a run of the mill ruling, what is he doing leading the prosecution of a man on trial for his life?