Bennett Judge Delivers Ruling - Walks The Fence

Roy Bennett and his wife, Heather, outside the High Court in Harare this morning. The judge in his case has now delivered his ruling on a crucial Defence application that would have had the effect of stopping the trial and referring the Attorney-General to the Law Society of Zimbabwe for dereliction of duty, as he sought to present improperly obtained evidence in the case. That application has been thrown out. The Defence gets the consolation of being allowed to lead evidence that the testimony of the star witness was obtained through torture, a move the AG opposed.

Harare, Zimbabwe, 11 November 2009

Judge Justice Bhunu delivered a ruling this morning that effectively takes the Bennett case back to Square One.

In his ruling, the judge rejected an application by lawyers for Bennett seeking to bar the evidence by Peter Hitschman, which they were arguing was procured by means of torture. They also insisted that the witness has now subsequently declared that he can not testify against Bennett.

What the Attorney-General wanted was to get the statement from Hitschman admitted into court even if the witness did not show up to testify. The Defence naturally felt that this was unfair, since Hitschman had indicated that the statement purporting to implicate Bennett was a result of torture and that he was not willing to come to court to back it up.

The judge ruled that the Defence lawyers could bring up the matter of the alleged torture during the trial, without having the evidence and "testimony barred."

The Attorney-General lost out on his application to have Bennett's lawyers argue in court that the testimony is unreliable. That is the bottom line of this ruling. At the same time, Bennett's lawyers have lost out on the application to bar the tortured witness from appearing in court.

The convoluted judgment betrays why the judge had to change his mind yesterday, when he had initially indicated that he was ready with a ruling. He has ended up not achieving anything much and his ruling is not at all ground-breaking.

It simply means that the Bennett case proceeds as before, with the witnesses lined up by the State being called.

Hitschman happens to be the State's star witness has already served a jail sentence for weapons offences. His testimony, which the Defence wanted barred implicated Bennett as the person who organised and finances the procurement of the weapons, which would have been used to topple the government of Robert Mugabe.

Hitschman is said to have told investigators that he was simply keeping the arms on his farm for Bennett.

This is evidence the Attorney-General knows would sink the Deputy Minister of Agriculture nominee. That is why he fought so hard to have the witness testify. He has won that battle. It will not be up to the Defence team to prove that the statement and the evidence is false and was got under torture.

That will be a tough call.

Bennett's trial will now go ahead tomorrow, Thursday, here in Harare.