Bennett Judge Compromised, He's Asked To Step Aside

Peter Hitschman, who was convicted of weapons charges less serious than Bennett faces, walks out of the High Court building in Harare yesterday, Thursday. The Defence is asking the judge to excuse himself from Bennett' case because he has previously presided over the bail hearing of Hitschman, in which he effectively convicted the accused before he had even been tried. Hitschman is a State witness in Bennett's trial and evidence being led by the State says he implicated Roy Bennett in the serious weapons charges he is being tried for.

Harare, Zimbabwe, 13 November 2009

Judge Justice Chinembiri Bhunu, who is presiding over the trial of MDC-T Treasurer-General Roy Bennett, has been asked by Bennett's lawyers to step aside after in emerged that he has previously denied bail to Peter Hitschman, Bennett's alleged accomplice in the weapons and terrorism charges he faces.

It was not just the refusal to give Hitschman bail, though. Justice Bhunu, who denied bail before Hitschman's trial started, said "there was overwhelming evidence" against Hitschman and that he faced charges so serious that he could not be let out of jail on bail.

Interestingly, Hitschman, who was tried by another judge at the High Court later, was found not guilty of the charges on which Justice Bhunu had effectively convicted him during his bail hearing.

It is because of this that Bennett's lawyers are insisting that Justice Bhunu has a preconceeved disposition in the trial of Roy Bennett

Beatrice Mtetwa, Bennett's main lawyer, spent a couple of hours with Justice Bhunu and Attorney General Johannes Tomana in the judges chambers, where she laid out her case and asked the judge to recuse himself. (Which means esxcusing himself from presiding over the case, basically admitting that he may not give the MDC-T Treasurer-General a fair hearing.

There is more to this than meets the eye, though. This latest development effectively means that Roy Bennett's trial is bound to last much longer than the life of the Inclusive Government.

Here's how.

If the judge refuses to step aside and then convicts Bennett, the convicted man will undoubtedly demand a mistrial, which he will almost get. The trial will then have to start afresh with another judge.

If he is found not guilty, you will also almost certainly see the Attorney General and the government demand a mistrial, saying the Judge was influenced by allegations of bias from the Defence to free the accused.

If the judge does step aside, then we will have to look again at the new judge, his track record and his sympathies in order o make a fresh analysis.

What is not in doubt is that this is one case in which, no matter what happens, there is going to be an appeal at the end of it, either from the Defence or the Attorney General. Which means Mugabe will continue saying that the law must take its course and when all appeals are exhausted, then he will know whether to swear-in Bennett or not.

The words that are coming back to haunt Justice Bhunu were:

"Undoubtedly, there is overwhelming evidence against the applicant. It is common cause that he was found in possession of the alleged offensive weaponry. He only disputes the classification of such weaponry. The State has classified the weaponry using a government official, an armourer of more than two years experience, whereas the applicant apart from the mere say-so of his legal practitioner from the bar, has laid not basis for challenging the State's classification."

This was being said before the man was convicted, mind you. When trial came, the classification that Justice Bhunu spoke about so highly, the one from the "government official", was thrown out of court and Hitschman was only convicted of lesser charges, based on a relatively more innocuous classification. He was sentenced to 2 and half years in jail, whereas Bennett faces the death penalty or life in jail.

That, in all fairness, the ruling on Hitschman disqualifies Judge Bhunu from being an impartial judge on the matter before him now is not in doubt at all.

It remains to be seen whether he does as the Defence demands. But this is a highly charged political trial.

Absolutely anything can happen.