Early setback for Tomana: Judge rules torture can be raised in Bennet's case

HARARE – A High Court judge says allegations the main witness was tortured can be raised in Roy Bennett trial dealing an early blow to the State's terrorism charges.

The judge on Wednesday rejected a prosecution request that the defense be barred from arguing that a weapons dealer who is the main witness against Roy Bennett was tortured into confessing and implicating others.

The weapons case against Bennett, a top aide to Prime Minister Morgan Tsvangirai, stems from allegations of a plot to topple President Robert Mugabe.

Tsvangirai says the charges are baseless and part of efforts by Mugabe loyalists to undermine the coalition formed in February between longtime rivals.

Judge Chinembri Bhunu also ruled against a defense request that the weapons dealer be barred from testifying.

The Zimbabwean High Court has dismissed both applications by the State and the defence lawyers allowing the trial of Movement for Democratic Change (MDC) treasurer general Roy Bennett, who is facing charges of treason, to proceed.

Justice Chinembiri Bhunu dismissed both applications arguing that this was a serious matter and could not be determined on technicalities but should be resolved on merit.

“It is my firm view that this matter is crying for determination. This is a serious matter that involves the life of a citizen as well as the security of a country. Accordingly both application are hereby dismissed to ensure that the matter is resolved on merit,” said Justice Bhunu in his ruling on the preliminary issues raised by both counsels in the Bennett trial which resumed on Monday.

The State, represented by the controversial Attorney General Johannes Tomana, had applied for the court to strike off the defence outline arguing that it was not made on time as stipulated by the law and it was an attempt to quash the State case.

Dismissing the application Justice Bhunu said there was no merit in the application since the State could have applied for the postponement of the matter so that they can look at the defence outline.
“It is self evident that the law does not allow for the striking off of a defence outline. The answer does not lie in the striking off of a defence outline and the mere fact that defence outline is a day late does not warrant it being struck off,” ruled Justice Bhunu.

Bennett’s lawyers represented by Beatrice Mtetwa of Mtetwa and Nyambirai Legal Practitioners had applied to have Mutare  arms’ dealer Peter Michael Hitschman removed from the State’s list of witnesses as they had established that he was not going to give evidence that help the State case.
However Justice Bhunu said there was no way Bennett would be prejudiced if Hitschman testifies in court.

“I fail to see how the calling in of the witness (Hitschman) can be prejudicial to the accused person (Bennett). The arguments by the defence counsel can only affect the weight of the evidence,” ruled Bhunu.

Justice Bhunu however did not touch on the application by the defence counsel to have the AG investigated for his conduct in dealing with the Bennett case.

The matter was adjourned to Wednesday mid-morning for continuation of trial after both counsels said they had commitments elsewhere.

Bennett, who is accused of possessing weapons for the purposes of committing banditry, insurgency and terrorism – charges he denies – is currently on a US$5 000 bail.

The former white commercial farmer was named by Prime Minister Morgan Tsvangirai for the post of deputy agriculture minister in the country’s power-sharing government. President Robert Mugabe has refused to swear in Bennett to his ministerial post citing the charges against him.

Bennett was arrested a few hours before ministers for the power-sharing government were sworn in last February accused of banditry and terrorism – charges Tsvangirai has repeatedly said are politically motivated and are undermining the unity government.