In his Chambers, Garwe JA granted the State leave to appeal, although
he pointed out that the State – represented by Chris Mutangadura – has
little prospect of success in challenging the granting of bail to
Bennett and may only have prospects in respect of the quantum of the
bail granted.
The ruling followed the hearing of arguments by Mutangadura and Mrs.
Beatrice Mtetwa, who represented Bennett, on Wednesday 4 March 2009 in
Chambers. Both parties were requested to file Heads of Argument the
following morning in order for a decision to be made in the afternoon.
A Warrant of Liberation, which was issued on 4 March 2009 , was ignored
by the Zimbabwe Prisons Service and Bennett was not released despite
the best efforts of his lawyers in Mutare.
The ruling of Garwe JA means that Bennett will remain incarcerated
until the appeal is heard by the Supreme Court. Lawyers are doing their
best to ensure that the matter will be set down for hearing at the
earliest opportunity to minimize further infringements on Bennett's
constitutional right to liberty.
Human rights monitors who were present at the Supreme Court on 4 March
2009 were surprised to see the red minibus (which became notorious due
to its use in transporting the abductees and political detainees such
as Mukoko and
Dhlamini) arriving at the court, and identified members of the Law and
Order section of Harare Central police station seeking to see the Chief
Justice and then meeting separately with the Registrar of the Supreme
Court. These same individuals were again at the Supreme Court today, in
the company of Mutangadura of the Attorney-General's office, making it
clear that they were involving themselves in Bennett's matter.
All right-thinking individuals should be questioning the involvement of
the Law and Order section in this matter, particularly as Bennett
effectively remains in the custody of the Prisons Service in Mutare,
the investigating officer in Bennett's matter is not from Harare, and
the alleged offence did not occur in Harare.
Police and other law enforcement agents should concentrate on
fulfilling their constitutional responsibilities in a professional
manner rather than engage in behaviour which can be viewed as an
attempt to place undue pressure on purportedly independent arms of
government, including the judiciary and the office of the Attorney
General.
ZLHR further deplores the continued persecution of Roy Bennett,
particularly by the office of the Attorney General. It is our fervent
hope that the appeal will be set down and heard urgently to prevent
further abuse of process and its devastating impact on the fundamental
rights and freedoms of individuals who have a right to be presumed
innocent and a right to protection of the law rather than persecution
by that law.
Background
High Court Judge Justice Tedius Karwi on Tuesday 24 February 2009
granted bail to Bennett and ordered him to deposit US$2,000 with the
Clerk of Court at Mutare Magistrates' Court and to reside at his
Workington home in Harare . Reporting conditions, surrender of
Bennett's travel documents and non-interference with State witnesses
also formed part of the bail conditions. In granting bail to Bennett,
Justice Karwi noted that Bennett was a suitable candidate for bail as
he was unlikely to abscond having returned to Zimbabwe from South
Africa on his own will. Justice Karwi also stated that Bennett was not
likely to interfere with State witnesses as the State's key witness
Peter Hitschmann is serving a prison sentence.
However, the bail was suspended following the invocation of Section 121
of the Criminal Procedure and Evidence Act (CPEA) by Mutangadura
representing the State. The invocation of section 121 of the CPEA
effectively suspended the liberty of Bennett by retaining him in
custody.