“Much ado about nothing.”; 'Storm in a tea cup.'One cannot find a better phrase to aptly describe the comedy of errors displayed by the National Prosecuting Authority, and, in particular, its Acting Prosecutor General.An important and serious case involving a high ranking Government and Constitutional appointee in the stead of ...
“Much ado about nothing.”; 'Storm in a tea cup.'
One cannot find a better phrase to aptly describe the comedy of errors displayed by the National Prosecuting Authority, and, in particular, its Acting Prosecutor General.
An important and serious case involving a high ranking Government and Constitutional appointee in the stead of the Prosecutor General, who is the head of the National Prosecuting Authority, albeit on suspension, was reduced to a huge fuss over a trifle.
Incidentally, William Shakespeare, the great English poet, play-writer, and actor was the author of both comedies 'Much Ado About Nothing' and 'Comedy of Errors.'
The trifle, of course, is the recusal of the judge, myself, from presiding over the accused's trial.
I do not, however, suggest that an application for recusal of a judge is trivia. It arises from the right to a fair hearing by an impartial and independent tribunal.
The trivia arises from the fact, that, it is a simple procedural application which does not go to the resolution of the merits of a case and ought not to derail or delay the due administration of justice.
Ordinarily, an application for recusal of a judicial officer from presiding over a matter placed before him is a routine procedure. Such applications seldom take the form of protracted argument as obtained in this case.
Usually, where parties are legally represented, counsel will discuss the concerns of the party who seeks to have the judicial officer recuse himself/herself beforehand. It should never be a hide and seek game. The party with concerns may, in the process of their discussion, disclose such matters unknown to the other party as would inform the other party of the reasons why he or she believes that a particular judicial officer should not handle the matter.
Normally, counsel will then make a courtesy call upon the judicial officer concerned and the party seeking the recusal will advise the judicial officer of the concerns of his or her client.
The judicial officer may, at that stage, find that the concerns raised ground good cause for recusal. In such a case, the judicial officer will simply agree to the recusal and cause the matter to be allocated to another judicial officer.
The issue, in other words, is dealt with administratively.
Where the judicial officer is not inclined to recuse himself or herself because there is, in his or her opinion, no just cause for the recusal, he or she will direct that formal application is made in open court upon the matter being called. The judicial officer will then make a determination on the application.
Applications for recusal of the judicial officer, where formal application is necessary, are, under the ordinary course of procedure, dealt with summarily.
The judicial officer will pronounce his or her recusal or refuse the motion at the end of argument so that proceedings are not delayed further over who should preside over them.
Regrettably, in this case, I had to reserve judgment because of the conduct of the National Prosecuting Authority and its Acting Prosecutor General; the latter being the culprit or spoiler who sought to throw a monkey wrench in the works, or, put simply, who conducted himself in a manner which was inimical, pernicious, or detrimental to the smooth conduct of proceedings in this matter.
The bungling by the Acting Prosecutor General and his seeming disdain or disrespect for the authority of the court, or myself, necessitated the need to cause a transcription of the proceedings to be prepared for posterity and reference.
Background
The accused person is facing six (6) counts of Criminal Abuse of Duty as a Public Officer as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
In the alternative, he faces six (6) counts of defeating or obstructing the course of justice in contravention of section 184(1)(b) of the Criminal Law (Codification and Reform) Act.
On 16 November 2016, the accused person was indicted to the High Court for his trial by the Provincial Magistrate in terms of the relevant provisions of sections 65 and 66 of the Criminal Procedure and Evidence Act [Chapter 9:07].
The indictment papers were prepared by or on behalf of the Acting Prosecutor General who signed them.
The Acting Prosecutor General was obliged, in terms of section 66(7) of the Criminal Procedure and Evidence Act to, and did, lodge copies of the indictment papers whose service he caused to be made upon the accused person.
Once indicted or committed to the High Court for trial, the case became deemed as pending trial before this court.
The trial date was fixed as 13 February 2017 by the Acting Prosecutor-General.
It is necessary, at this stage, to note, that, administratively, at the High Court Harare, the National Prosecuting Authority has three criminal trial court rooms allocated to it. There is also another court which exclusively deals with bail applications. There are also two Criminal Appeals Courts devoted to dealing with Criminal Appeals.
These six (6) courts are created for discharge of the prosecutorial mandate of the National Prosecuting Authority as set out in section 258 of the Constitution of Zimbabwe (2013) as read with section 12 of the National Prosecuting Authority Act [Chapter 7:20] and for disposing of bail applications and appeals.
My judgment, however, focuses on the criminal trial courts.
To state the obvious, the criminal trial courts are court A, B and D.
Administratively, the National Prosecuting Authority is the one which sets down its cases in the said courts.
The National Prosecuting Authority prepares the court roll or cause list each High Court term. The National Prosecuting Authority's set down office is based at and operates from its offices.
The question then arises: “How does a judge become seized with a criminal trial?”
The procedure is, that, the administrative head of the High Court, through divisional heads, simply assigns a judge to a particular court for a certain period. A duty roster is prepared and does not depend upon the cases set down by the National Prosecuting Authority in a particular court.
The duty roster is not a secret document, and the National Prosecuting Authority knows before the beginning of each court term as to which judge will be presiding in each of the criminal trial courts.
I have set out the above administrative process to show that the National Prosecuting Authority knew long before the trial date of the accused person that the judge who was presiding in Court A, in which the case was enrolled, was myself.
It was not as if a judge, myself, was specifically assigned by the court administration to deal with the case in casu.
It will therefore be apparent, when I deal with the merits of the recusal application, that, the Acting Prosecutor General must have known who the presiding judge in Court A, in the first term of 2017, was.
By not seeking the recusal of the judge from presiding over the case before the set down, it meant that the National Prosecuting Authority, and its Acting Prosecutor-General, did not have any qualms with the judge whose background and past connection with the National Prosecuting Authority, and the accused, were matters within their peculiar knowledge and largely public knowledge because the fact of the judge having been a past board member of the National Prosecuting Authority was public knowledge. The appointment to the Board was gazetted in the Government Gazette.
It should also be noted, that, the existence of the National Prosecuting Authority Board derives from section 259(10) of the Constitution as read with section 8 of the National Prosecuting Authority Act.
The judge, as is common cause, and, upon a reading of the National Prosecuting Authority Act, was a ministerial appointee who did not owe his appointment to the Prosecutor General or any member of the National Prosecuting Authority as listed in section 4 of the National Prosecuting Act.
The judge, therefore, did not owe any allegiance to the Prosecutor-General but to the National Prosecuting Authority and the State.
Admittedly, whilst the Prosecutor General was, and is, the Board Chairperson of the National Prosecuting Authority, he has no power to appoint or dismiss a Board member.
The relationship between the judge, as a Board member, has to be considered as professional where the duties of Non-Executive Board members are clearly spelt out in the Constitution and the National Prosecuting Authority Act.
In particular, in the exercise of its mandate, the Board would, and was, guided by section 260(1) of the Constitution which guarantees the independence of the Prosecutor General in exercising his or her functions.
Section 259(10) of the Constitution is clear, that, the function of the Board is to employ persons who will assist the Prosecutor General in discharging that office's sanctions.
Section 6 of the National Prosecuting Authority Act reinforces the independence of the Prosecutor General from being subject to the Board.
In short, the Board superintends the human capital side of the National Prosecuting Authority - except for the Prosecutor General.
The issue of the relationship between the Board and the Prosecutor General has to be ventilated, in summary, because, as will become apparent in this judgment, the Acting Prosecutor General raised it as a ground for recusal of the judge, noting that the judge had been a Board member of the National Prosecuting Authority with the accused as Chairperson in his capacity as Prosecutor General.
In other words, the Acting Prosecutor General's view was that the statutory professional relationship between the Prosecutor-General and the judge, as Board member, was good ground for the judge to recuse himself from presiding over the present case.
It is also important to note, at this stage, that, whilst the judge was appointed Board member of the National Prosecuting Authority in or about December 2014, the indictment against the accused person relates to the period 20 October 2009 to 3 June 2010, in respect of the first five (5) counts, and to 29 January 2016 in respect of the sixth or last count.
The judge was not a Board member during the periods mentioned in the indictment.
The National Prosecuting Authority Act was gazetted on 11 July 2014. The Board and National Prosecuting Authority was not in existence by June 2010.
The judge had long been appointed to the High Court bench, on 7 September 2015, by the time the allegations against the accused person of 29 November 2016, in count 6, occurred.
These considerations would have been relevant, and played in the mind of the judge in considering whether he saw or felt cause to unilaterally recuse himself from presiding over the case.
The facts alluded to above were within the knowledge of the National Prosecuting Authority, and, hopefully, its Acting Prosecutor General, before the accused's trial date.
Any other relationship which the judge may have had in interacting with the National Prosecuting Authority and its Prosecutor General, when the judge was still a practising legal practitioner, would have been known by that office.
The question which begs for an answer is: why the National Prosecuting Authority was content to have the judge sit in the matter and only make a turn round after the hearing of the case had commenced and certain orders and directives given.
Is it because the National Prosecuting Authority was expecting a pre-conceived result and became apprehensive that its expectations may flounder?
The timing of the application cannot escape speculation or conjecture as to whether or not it was well meaning and devoid of other extraneous considerations other than the pursuit of fair, just, impartial, and transparent justice deliverance.
Events of 13 February 2017
On the morning of 13 February 2017, the lead prosecutor, Mr Chingwinyiso, made a courtesy call in the judge's chambers with two of his assistant prosecutors and the accused's counsel, Mr Mukweva.
After introducing themselves, I asked the prosecuting team if they were ready to proceed and if the defence team was also ready to proceed.
I was advised that the defence had served the prosecution with an application in court that morning and that the prosecution had not been made aware, beforehand, of this application.
I directed that whatever application it was should be dealt with in court.
I was advised that the lead defence counsel, Advocate Thabani Mpofu, could not come to chambers as he was arranging to postpone another matter.
The rest of what then transpired thereafter is captured on record and the same has been transcribed.
It will be noted, that, I proceeded to court without any hint by the prosecuting team, whatsoever, that my presiding over the trial was an issue.
When the case was called, and after counsel introduced themselves, Mr Mukweva, for the accused person, formally advised the court that Advocate Thabani Mpofu, whom he had instructed to represent the accused person, was still tied up in another court in a civil matter.
The court allowed the defence a brief adjournment for defence counsel to find out the position with Advocate Mpofu on his availability. The court also asked Mr Mukweva whether the trial would be proceeding.
He indicated that the defence intended to make an application which had been prepared and served on the prosecution team in court. He submitted that the application had been served late because counsel prepared it late. Mr Mukweva indicated, that, the application would be made by Advocate Mpofu.
State counsel, Mr Chigwinyiso, raised his objections to how the defence had sought to serve the application in court. He indicated that the application could not be considered as having been served without a return of service in the form of the stamp of the National Prosecuting Authority to evidence that it had been received.
Mr Chigwinyiso sought a deferment of the case to the following day.
The court was not inclined to postpone the case before it was put in the picture of what exactly the application was about and before the issue of the availability of Advocate Mpofu was dealt with.
Before adjourning the case, the court asked counsel whether the application had been filed because there was no copy of the same on record.
Mr Mukweva indicated that he had just had the application issued by the Registrar and had brought all stamped copies to court.
I did not consider that this was proper because the Registrar should have retained the copies of the application for the record.
I directed Mr Mukweva to let the court have copies of the application and he handed, over the Bar, a photocopy of the application on which the name of the accused was inscribed in long hand in the name citation with the originally typed name cancelled on the first page headed: 'Application for Constitutional Relief'....,.
Defence counsel was also ordered to prepare sufficient copies of the application for the court.
