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No grounds for state appeal

JUST when we thought that the dust was settling — with the acquittal of MDC treasurer Roy Bennett this week — it is not over yet. The state which apparently goofed in the prosecution of the legislator has in its wisdom decided to appeal the High Court ruling.

Attorney-General Johannes Tomana, who led the prosecution of Bennett, is praying to the trial judge, Justice Chinembiri Bhunu, to give the state leave to appeal to the Supreme Court against the not guilty verdict.

Tomana’s decision to appeal follows remarks by the Zanu PF legal secretary Emmerson Mnangagwa immediately after the ruling that the judgement was “appealable”.

Whatever Justice Bhunu decides regarding the application for leave to appeal, his verdict on Monday delivered a significant black mark against the integrity of the AG and his office.


There is vindication for all those who in the first place saw the prosecution of Bennett as an act of racial persecution by a system that has made it its business to use the courts as an arena of punishment and not justice. But justice was served on Monday as the state case fell on its face, largely due to the glaring inadequacies in the quality of the prosecution.

Justice Bhunu in his written judgement commended the state for “having put up a brave fight under very difficult circumstances in defence of a constitutionally elected government”. But the state’s success in prosecuting this case was not going to rest on bravery or the quest to defend a constitutionally elected government.


The onus was on the state to prove that Bennett indeed wanted to topple the government. The difficulties that Justice Bhunu refers to in his ruling were of the state’s own making. In the three years it took to bring the case to trial, the state with all its machinery and resources failed to find credible witnesses to testify.

The evidence relied on by Tomana and his prosecuting team was weak. The judge pulled no punches in attacking the integrity of the state witnesses lined up by the AG’s office to provide evidence to prove that Bennett wanted to commit acts of treason.

Words like “appalling”, “unreliable”, “dubious” and “erroneous” were used by the judge to describe the quality of the evidence adduced by the state witnesses. By the same token, the dubious and unreliable evidence reflects badly on the quality of the prosecution and in particular Tomana. By appealing, Tomana has to prove that the judge erred and that the state had managed to establish a prima facie case that the charges against Bennett were valid.

What is curious though is how the AG expected to win this case using an appalling witness like Perekayi Mutsetse who demonstrated stunning incompetence in the area of IT, his supposed forte, to the extent that his testimony “virtually destroyed” the state case.

The AG also needs to tell the nation how he intended to successfully prosecute a case using evidence from a hostile witness in the form of Peter Hitschmann. Tomana, the state said, called Hitschmann to “give evidence with the full knowledge that he was likely to give evidence adverse to the state case”. In the end the evidence supported the defence case, the judge said.

The judgement spared the AG direct criticism but soccer exemplars by the judge in the summary of the ruling should be instructive to Tomana. Justice Bhunu said judges and assessors were mere referees and umpires in the legal process. “One cannot therefore take a dive at the centre circle and expect the referee to award a penalty,” said the judge.

He added: “Like in most contests a team cannot be allowed to advance to the next stage unless it performs well at the preliminary stage.”

Tomana’s team should not expect to proceed to the next stage of the contest — that is putting Bennett to his defence — after such a poor showing in preliminary rounds of the contest.  He has appealed anyway to satisfy the aspirations of a political clique which is opposed to Bennett’s appointment as Agriculture deputy minister.

In fact the ruling bolsters the MDC argument that Tomana should not continue to be AG. He has professed his fondness of Zanu PF’s ideology but has said he is an AG for all Zimbabweans and therefore apolitical in that role. We do not believe this. This case is emblematic.  Not many Zimbabweans, the majority of whom support Bennett’s MDC, see Tomana as their AG. They see him as a symbol of division in the GNU.

Bennett’s acquittal, the MDC said, “is an indictment of the person and office of the Attorney-General who has wasted the taxpayers’ money by besmirching and persecuting an innocent Zimbabwean.” It is difficult to disagree.

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