Criminal
Trial- Application for Recusal of Judge
1.
CHITAPI
J:
“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.
2.
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.
3.
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
4.
The accused person is facing 6 counts of Criminal Abuse of Duty as a
Public Officer as defined in section 174(1)(a) of Criminal Law
(Codification & Reform) Act [Chapter 9:23].
In
the alternative he faces 6 counts of defeating or obstructing the
course of justice in contravention of section 184(1)(b) of the same
enactment.
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 &
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 same Act to and did lodge copies of the indictment papers whose
service he cause 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.
5.
It is necessary at this stage to note that administratively, at 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
6 counts are created for discharge of the prosecutorial mandate of
the National Prosecuting Authority as set out in section 258 of the
Constitution of Zimbabwe (2103) as read with section 12 of the
National Prosecuting Authority Act, [Chapter 7:20] and for disposing
of bail applications and appeals.
6.
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
Authority prepares the court roll or cause list each High Court term.
The 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.
7.
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.
8.
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 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.
9.
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.
10.
The judge therefore did not owe any allegiance to the Prosecutor
General but to the Authority and the State.
Admittedly,
whilst the Prosecutor General was and is the board chairperson of the
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 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 Authority
except for the Prosecutor General.
11.
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 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 5 counts and to
29 January, 2016 in respect of the 6th or last count.
12.
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 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.
13.
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
14.
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.
15.
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.
16.
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.
17.
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 returned 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'. The next page
was the accused's affidavit and there was no alteration to the
citation of the parties names.
18.
The next document was the draft order and the typed name “Martin
Dinha” in the heading was cancelled and the cancellation initiated
or signed for. The accused's name was substituted in long hand
where the typed name 'Martin Dinha' had been cancelled.
The
court adjourned the case to 11:15am to allow time for State and
defence counsels to discuss the application and agree a way forward.
The
adjournment of 30 minutes would also afford the court time to read
through the application and for Advocate Mpofu to avail himself.
The
court also advised counsel that it did not want to let the case be
bogged down in “unnecessary technicalities”. Defence counsel was
also ordered to prepare sufficient copies of the application for the
court.
19.
When the court resumed, Advocate Mpofu apologized for his delayed
attendance and for not timeously placing his intended application
before the court and served the State timeously.
He
also apologized for the mix up in the name of the accused on the
cover of the application.
He
handed over the bar a corrected copy of application.
The
substance and content of the application was the same as the one
handed over by Mr Mukweva prior to the adjournment.
Advocate
Mpofu further submitted that the State and defence counsels had
liaised over the application and agreed that it be made the following
day at 11:30am with the state counsels having undertaken to file
their response by 10:00am.
I
directed Advocate Mpofu to place on record what the gist of the
application was because the court needed to appraise witnesses and
other interested parties who sat in the court room of the reason for
postponing the matter.
To
simply state that the case was being postponed for purposes of making
an undisclosed application as to its nature or purport would not have
been sufficient or proper.
20.
Advocate Mpofu then submitted that he would be making an application
supported by the accused's affidavit to declare the prosecution of
the accused void on account of certain provisions of the Constitution
and for alternative relief that the prosecution be stayed pending
determination of the constitutional process under way whereby His
Excellency the President of Zimbabwe had invoked the provisions of
section 187 of the Constitution.
Section
187 aforesaid deals with the removal from office of judges and
applies to the Prosecutor General.
21.
In response Mr Chigwinyiso introduced a fourth member of his
prosecuting team, a Mr Timothy Makoni. He acknowledged that the
defence had filed an amended application but submitted that what was
before the court were just papers because he could not agree that the
State had been served with the application until such time that a
copy of the application had been served at the offices of the
National Prosecuting Authority and its date stamp franked thereon.
He
submitted that once this formality had been followed, the prosecution
would then be able to respond accordingly possibly by 10:00am.
I
asked Mr Chigwinyiso whether in essence he was submitting that the
State needed time to consider the application.
Mr
Chigwinyiso submitted that even if the prosecution and the court were
in possession of the application, there was still no application
until the same had been franked by the National Prosecuting Authority
at their offices.
Herein
started the comedy of errors, the much ado about nothing or storm in
a tea cup.
I
ruled that the court did not see any logic in his reasoning and
insistence that the application could only be treated as being
properly before the court if it was served on the offices of the
National Prosecuting Authority and its magic date stamp franked on
it.
22.
I ruled perhaps to the chagrin of the prosecuting team that it had
been served with the application and was expected to respond to it
and that it would assist the court if a written response was
similarly filed.
The
court was not referred to any rule in criminal procedure which
requires that a written application objecting to an indictment being
tried can only be deemed proper if it has been served at the offices
of the National Prosecuting Authority and its stamp franked on the
copy served upon the Authority.
Applications
to quash an indictment as was sought in the main by the accused are
made before the accused pleads.
The
law and in any event logic and common sense dictates that the State
is given reasonable notice of such application.
Sections
170, 171, 178 and 179 of the Criminal Procedure and Evidence Act are
instructive.
It
just defies logic for the State counsel to admit that he has been
handed a copy of a filed application but will not recognize it as
such until a copy thereof has been served at his Head Office. Such
attitude was farcical.
23.
Notwithstanding the attitude of the prosecutors, I asked whether in
view of the nature of the application, they were content with being
given until 10:00am to file a response or they needed more time.
Mr
Chigwinyiso then suggested that the State be given until 2:15pm the
following day to file its response.
I
then agreed to grant the indulgence to 2:15pm.
I
then asked the Prosecution team whether there were any witnesses to
be warned.
Witnesses
Messrs Mabahwama, Uladi, Dube, Sergeant Shumba, Mutsonziwa and Hove
were called into court.
I
explained the deliberations which had gone on, the late filing of the
defence application, the need for the State to respond in writing
thereto, the nature of the application and the agreement by the State
and defence counsel to defer the hearing to the next day.
I
confirmed with Mr Chigwinyiso that he could advise the witnesses to
avail themselves at short notice.
It
was agreed that the witness be discharged from attendance until
called after the determination of the application.
24.
As regards the accused person, the record will indicate that I then
said:
“Stand
up P.G. I am postponing this case by consent to 2:15 tomorrow and you
are ordered to appear at that time. Thank you all”.
In
referring to the accused person as PG (Prosecutor General) I did not
realise nor anticipate as I was later to discover that I had annoyed
or irritated the Acting Prosecutor General to whom the reference was
reported.
The
developments which followed can only be described as I have indicated
as a big fuss over a trifle.
The
Acting Prosecutor General perhaps determined to guard his territory
of power decided that the judge, myself should recuse myself from the
case.
It
is very important to point out that recusals of a judicial officer
are an everyday occurrence and occur as part of the judicial
function.
But
how did the prosecution go about it?
Events
of 14 February, 2017
25.
In the morning of 14 February, 2017, my administrative head, the
Judge President called me to his chambers.
He
handed me a copy of a letter addressed to him by the Acting
Prosecutor General. It was copied to the Registrar and to the
accused's legal practitioners.
The
Judge President advised that he was passing on the letter to me
because as the presiding judge I had to singularly decide on the
issues raised and that his passing over the letter to me was all that
he considered proper to do.
For
the avoidance of doubt, the contents of the letter was as follows
(and it is reproduced here because it was not a confidential
communication as will be apparent):
“Monday,
13 February 2017
The
accused was indicted for trial commencing on 13 February 2017.
Prosecution counsel and the accused's instructing legal
practitioners appeared in chambers before the learned Justice T H
Chitapi, the judge assigned the matter, for a courtesy, and to inform
him as to the readiness of the parties to proceed.
The
learned judge was informed that the State was ready to proceed and
had its witnesses present to testify but had not been furnished with
the accused's Defence Outline despite the fact that the accused was
indeed already for trial on 16 November 2016.
The
accused's instructing legal practitioner informed the learned judge
that no Defence Outline had been prepared but the defence intended to
make an application and was awaiting the arrival of instructed
counsel, Mr Thabani Mpofu.
The
judge adjourned the matter to 11:15 hours.
Shortly
before the matter was called in court the defence produced a document
which 'purported' to be an application.
'Purported'
because the document does not in the least comply with the rules of
court regarding form, substance and manner of service of court
applications.
Furthermore
the face of the so called 'Application for Constitutional Relief”
shows that it was a page prepared for a certain Martin Dinha.
The
said Dinha's particulars are scratched out in pen and substituted
with Johannes Tomana.
Attached
to it is an affidavit of the accused and a purported draft order also
drawn presumably from an application filed in respect of the said
Marin Dinha whose particulars are scratched out and the accused's
particulars handwritten in.
After
hearing submissions the court ordered the State to file a written
response to the application by 11:45 on 14 February 2017.
During
the proceedings, captured on tape, the learned judge repeatedly
referred to the accused as 'Prosecutor General.'
I
am of opinion that the learned judge has improperly conducted himself
and the proceedings.
First
of all, Mr Tomana was suspended by H.E. The President of the Republic
of Zimbabwe, Cde Robert Gabriel Mugabe on 7 July 2016. Simultaneously
the President appointed and swore in Advocate Ray H Goba as Acting
Prosecutor General.
It
follows that Mr Tomana, the accused, is not in office and accordingly
not 'the Prosecutor General.' In other words, the office/position
is occupied by Adv Ray H Goba.
Accordingly,
any reference to the accused as Prosecutor General is grossly
improper and fails to distinguish between the person and the
Constitutional office.
The
learned judge's conduct may reasonably be perceived as improper
deference to the accused likely to taint his judgment in dealing with
the matter.
It
is common knowledge that the learned judge previously served on the
Board of the National Prosecuting Authority under the chairmanship of
the accused before his appointment to the bench.
This
may help explain the learned judge's conduct during the hearing;
the improper deference to the accused; and improper indulgencies
granted to him.
For
these reasons, I fear that the proper administration of justice is
likely to be prejudiced if Justice Chitapi is to continue presiding
over the matter. The public's perception of justice is likely to be
diminished in regard this prosecution.
I
accordingly, and with the greatest respect to the learned judge,
submit that he is singularly unqualified to preside over this matter.
I
would wish my concerns to be brought confidentially to his attention
in order for him to apply his mind to the matter, to make an
appropriate decision, and avoid a formal application in court.
The
Honourable Judge President ……….. ………..
Advocate
Ray H. Goba, Acting Prosecutor General.”
26.
The letter became public knowledge in circumstances which will be
explained.
It
was stamped by the Registrar.
However,
at this stage, it is necessary to note that what irked the Acting
Prosecutor General was firstly the fact that the prosecuting team had
been ordered to file a written response to the so called 'purported
application' which did not “in the least comply with the rules of
court regarding form, substance and manner of service of court
applications”.
He
was also irked by the fact that the names Martin Dinha appeared on
the papers but were “scratched out in pen and substituted with
Johannes Tomana”.
He
was equally irked by the fact that the judge (myself) had
“repeatedly” (not true, of course, as the record will show)
referred to the accused as 'Prosecutor General'.
In
his view the Acting Prosecutor General considered that the judge had
“improperly conducted himself and the proceedings.”
27.
The Acting Prosecutor General surmised that because he was appointed
and sworn to act as such following the suspension (not dismissal) of
the accused person, a reference to the accused as Prosecutor General
was grossly improper and showed the judge's failure “to
distinguish between the person and the Constitutional office.”
The
improper deference to the accused person as Prosecutor General was,
according to the Acting Prosecutor General, likely to taint the
judge's judgment.
The
Acting Prosecutor General then remembered that the judge had, at one
time, served on the Board of the National Prosecuting Authority
before he joined the bench and that the accused person was Chairman
of the Board.
He
thought that the improper deference to the accused and improper
indulgencies (whatever these were) were due to this past interaction.
28.
It is, of course, not clear as to what indulgencies were being
referred to.
An
application was filed officially with the court. It had to be replied
to, or, best put, it was necessary that the State be given an
opportunity to respond to it.
The
nature of the response was not dictated by the judge.
Procedural
objections could still have been taken in the response.
What
the judge ruled on was to over-rule the prosecuting team when it
sought to argue that it could not acknowledge that a filed
application handed to it was not an application because it was not
stamped by the prosecution office.
29.
At this juncture it is proper to leave the issue of the application
because the same still has to be determined on the merits.
A
ruling is however made that there was no improper indulgence extended
to the accused person by the judge.
If
any indulgence was given, it was extended to the State at its request
and by agreement with the defence that it needed time to prepare and
file a response.
The
judge extended the time which the prosecutors had asked for to 2:15pm
the following day instead of 10:00am so that the State would get
sufficient time, as requested by it, to respond.
30.
What is in fact significant and deserving of censure is that the
order of the court granted by consent of the defence and prosecuting
team that the State response be filed by 2:15pm on the next day was
by intervention of the Acting Prosecutor General defied.
Instead
of assisting his prosecuting team to file a response as ordered
following request by the prosecuting team, the Acting Prosecutor
General deliberately decided to torpedo the trial.
Common
sense would dictate that the State was supposed to prepare and file a
response as undertaken by it and endorsed as an order by consent by
the court. Thereafter the prosecution team would then have applied
for recusal of the judge so that he does not determine the
application.
31.
Only the Acting Prosecutor General can in his wisdom justify why an
application which calls for a response can be answered by
disregarding an order to file a response by the State but instead be
answered by a letter asking the Judge President to confidentially
tell a sworn judge to recuse himself.
The
letter does not make mention of the State's response to the
accused's application.
It
is totally a protest at why the State was given an opportunity to
respond to an application and why the judge referred to the accused
person on trial as Prosecutor General.
32.
The Acting Prosecutor General was intent on undermining the authority
and integrity of the court by mounting an attack upon the judge
regarding how the judge had handled the case before him.
It
will be seen that the Acting Prosecutor General in his letter of
protest complained that the application made by the defence counsel
was a “purported” application which was in fact a document which
did not comply in the least with the rules of court regarding “form,
substance and manner of service of court applications.”
For
the obvious reason that the application aforesaid remains pending
determination, it will not be appropriate for me to rule on whether
or not the Acting Prosecutor General was correct in his comment.
The
same applied to the Acting Prosecutor General's comment regarding
the alteration of names through crossing out by pen wherein the
accused's name was then written in ink.
If
these issues irked the Acting Prosecutor General, all that he should
have been expected to do was to assist his prosecuting team to
prepare a response encompassing his objections as undertaken by the
team for the court's determination.
33.
The Acting Prosecutor General was of the view that his position was
being undermined by the reference to the accused person as Prosecutor
General.
He
felt that the correct reference should have been to refer to the
accused person by the word “Accused”.
The
Acting Prosecutor General reasoned in the letter that the person on
trial “Mr Tomana” was on suspension and therefore not in office.
He considered that it was improper to refer to the accused person as
“Prosecutor General.”
It
is not necessary to waste time debating such a flimsy and legally
unsound argument.
The
accused person on trial was the Prosecutor General of Zimbabwe albeit
on suspension pending the conclusion of a Constitutional process
instituted by the State President as appointing authority, to
determine whether the Prosecutor General should be removed from
office.
The
process of the removal from office of the Prosecutor General during
his or her tenure of office follows the same procedure as that of the
removal of judges from office. This is provided for in section 259(7)
as read with section 187 of the Constitution.
34.
Until his removal from office, the accused person remained the
Prosecutor General and any reference to him as such was therefore
proper.
A
judge on suspension and on trial for example remains a judge until
removed from office.
To
refer to a person on trial by name or official designation should in
fact be adopted by the courts.
As
a passing comment, I have always referred to persons appearing before
me by their names and titles, be they accused persons or witnesses.
Persons appearing in court should feel at home because the courts are
created for the people.
In
terms of section 162 of the Constitution, judicial authority derives
from the people of Zimbabwe.
35.
There is no justification to demean the person on trial by referring
to such person as 'Accused' as opposed to by his name.
Anyone
who has sat in a court that I preside will know that I refer to
persons, be they on trial, witnesses or counsel by their names and/or
titles as a show of respect.
Calling
persons by their names, in court, should not be an issue which
impacts negatively on justice dispensation.
William
Shakespeare in his works, Romeo & Juliet, wrote:
“Whats
in a name? That which we call a rose by any other name would smell as
sweet.”
The
Acting Prosecutor General was of the view that referring to the
accused on trial by his official title showed deference to him and
that such reference had the potential to cloud the judge's
impartiality.
He
reasoned that because he was appointed and sworn by the President, as
Acting Prosecutor General, addressing the accused person as
Prosecutor General was “grossly improper and failed to distinguish
between the person and the Constitutional office.”
I
have already indicated that the accused person, who was appearing
before the court, was the appointed Prosecutor General albeit on
suspension.
How
a reference to him by his proper designation could be said to be
“grossly improper” is baseless in law, logic and common sense.
36.
The next issue raised in the letter was the past association between
myself and the National Prosecuting Authority as a board member.
I
have already dealt with the issue.
As
can be seen from the letter, the Acting Prosecutor General considered
that my past relationship of board member of the National Prosecuting
Authority, chaired by the Prosecutor General, in the person of the
accused person, provided an explanation for “the judges conduct
during the hearing, improper deference to the accused, and improper
indulgences granted to him.”
I
am, of course, not clear as to the nature of the improper
indulgencies referred to because apart from indulging the defence
counsel who was in another court and pitched up late, the only other
indulgence granted by the court was to allow the State counsel time
to prepare a response to the application filed by the defence counsel
in the morning of the hearing.
37.
The Acting Prosecutor General reasoned that the administration of
justice was likely to be prejudiced if I continued to preside over
the matter and that the public's perception of justice was likely
to be diminished in relation to the prosecution of the matter.
The
Acting Prosecutor General's opinion, in this regard, has no sound
basis for the reasons I have given, in the main, that, the cases
which the accused person was indicted upon fell outside the period
that I was connected with the National Prosecuting Authority.
In
addition the Board does not discuss prosecutions but manpower issues.
The
letter does not indicate that the judge had prior knowledge of the
cases.
38.
Lastly, the Acting Prosecutor General committed a cardinal error of
requesting the Judge President to deal with the matter confidentially
in bringing his concerns to my attention.
Whilst
the Acting Prosecutor General may have been well meaning, his
suggestion would have set a very dangerous precedent.
The
case had been called.
Orders
had been made in court, including that the prosecution team files its
response to the defence application by 2:15pm of the following day.
Justice
dispensation should not be done behind closed doors.
To
have expected the Judge President to have gone along with the Acting
Prosecutor General's suggestion to discuss issues of recusal in
private was clearly an offside move by the Acting Prosecutor General.
39.
The Acting Prosecutor General is strongly warned to desist from such
unprofessional and unethical conduct in future.
It
was highly irregular of the Acting Prosecutor General to address the
Judge President in the manner that he did, concerning the conduct of
a judge sitting over a matter, without even having the courtesy to
copy the letter to the judge concerned.
As
a senior advocate, and Chief Law Officer of the State in criminal
matters, he should have led by example.
The
Acting Prosecutor General and his team should simply have invited the
defence team to my chambers and discussed the prosecution concerns,
as stated in the letter, if the aim was to avoid making a formal
application for recusal in open court.
40.
I earlier indicated that l would deal with how the letter found
itself in the public domain.
The
letter was copied to the Registrar of the High Court of Zimbabwe and
to the defence counsel's law firm. The transcribed record will show
that when the court hearing resumed on 14 February, 2017 the defence
team raised the issue of the letter and its impropriety.
Advocate
Mpofu submitted that a copy of the letter had been handed or served
on the defence team by the prosecution team.
The
defence took exception to the letter which they considered as
impugning the integrity of the judicial process, vexatious and
unethical.
Advocate
Mpofu submitted that it was proper to prepare a citation directing
the author of the letter to appear before the court and purge his
contempt of the court process.
41.
He also submitted that the Acting Prosecutor General had in the
process of vilifying the judge, incited his subordinates, the
prosecuting team, not to comply with the court directive to file a
response to the application by the defense counsel.
He
noted that the application only comprised two pages and there was
nothing complicated about the application as would have made it
impossible for the prosecution team to prepare a response as
undertaken by it.
He
attributed the default in filing the response to open and calculated
defiance of the authority of the court on the part of the Acting
Prosecutor General who instead of getting his team to respond to the
application, decided to devote his energy and time to writing a
scandalous letter.
42.
The lead prosecutor, Mr Chigwinyiso, submitted that his team realised
that it had allocated itself too little time to research and prepare
a response. He submitted that his team had covered substantial ground
and would require “a day or so” to make a full response.
He
applied for the matter to be further postponed for a “day or two in
order to file a response to the application made 'yesterday' and
then to make a proper application as regards the issues raised by the
Acting Prosecutor General.”
The
lead prosecutor submitted that the State response would be ready and
filed by 17 February 2017.
43.
With respect to the letter by the Acting Prosecutor General, the
prosecution team could not speak to it or motivate it.
To
its credit, the prosecution team, through the lead prosecutor,
submitted that upon reflection their boss had misfired by writing a
letter to the Judge President concerning a matter before the court
and moreso without copying the letter to the presiding judge.
In
a lighter moment, I requested the lead prosecutor to look at the dock
and tell the court how he would address the accused person.
He
gave a witty response. He said:
“I
will answer the question from my Lord from a person who is dealing
with soccer.
44.
A player who has been red carded still remains a football player. The
Prosecutor General is still Prosecutor General whether suspended or
not until he is removed from office.”
He
agreed that Advocate Ray Goba was Acting Prosecutor General
discharging the duties of the Prosecutor General and that the
Prosecutor General was the accused person before the court who
however was on suspension.
Mr
Chigwinyiso then submitted further that the Acting Prosecutor
General, as the author of the letter, was best placed to motivate it.
45.
The court then postponed the matter at the instance of the
prosecution team to the next day 15 February, 2017.
The
prosecuting team undertook that it would have filed a formal
application for my recusal by 11:15am and the Acting Prosecutor
General would appear with the team at 2:15pm whereat he would
motivate or explain his letter and deal with the application for my
recusal.
I
indicated to the prosecution team that if it faced time constraints,
the application could still be made orally because there was no rule
which prescribed that an application for recusal of the judge be
reduced to writing.
46.
Advocate Mpofu submitted that the defence wanted the Acting
Prosecuting General to be available.
The
court did not consider it necessary to prepare a subpoena or citation
for the Acting Prosecutor General to appear before the court.
The
court considered that the Acting Prosecutor General was an officer of
the court and a legal practitioner duly sworn, admitted, and
registered as such by the High Court: thus, when required by the
court to attend, in relation to a matter which he has brought before
court, the Acting Prosecutor General, in deference to the court, and
the duties of his office did not require to be compelled by subpoena
to appear before the court at its request or direction.
Mr
Chingwinyiso undertook to advise the Acting Prosecutor to appear
before the Court on the following day.
The
matter was rolled over to the following day 16 February, 2017.
47.
On 16 February, 2017 the prosecuting team appeared in court without
the Acting Prosecutor General.
No
application was made for him to be excused from attendance nor to
explain why he was not in attendance.
The
lead prosecutor submitted that he relayed the message to the Acting
Prosecutor General that he was required at court to explain the
contents of his letter. The Acting Prosecutor General reportedly
instructed his prosecuting team to tell the court that his
explanation was contained in his affidavit supporting the written
application for recusal.
Mr
Chingwinyiso further indicated that he had spoken to the Acting
Prosecutor General in the morning and he had indicated that he was
going to attend.
As
it was now 2:53pm, the lead prosecutor indicated that he did not know
whether the Acting Prosecutor General would pitch up or not.
48.
Mr Mpofu submitted that the Acting Prosecutor General's conduct
showed that he had no respect for the court because he deliberately
refrained from presenting himself before the court despite the
court's directive.
He
submitted that the application for recusal in any event cited the
judge as second respondent and yet the judge was supposed to
determine it.
To
this extent, counsel pointed out, correctly of course, that the
application was defective to that extent.
He
submitted that it was only fair that the Acting Prosecutor General be
given 10 minutes to present himself before the court, failing which
the court should issue a citation for him to attend and explain his
conduct.
49.
The court however ruled that since the Acting Prosecutor General had
been given an opportunity to appear before the court and explain his
letter and motivate the recusal but deliberately spurned the
opportunity, he only had himself to blame if an adverse order or
finding was made against him.
There
can be no doubt that the Acting Prosecutor General displayed a
recalcitrant attitude reminiscent of a stubborn unwillingness to
defer to the court's authority.
The
court pointed out to the prosecuting team that it was the first time
in its experience that the Government Chief Prosecutor and legal
practitioner exhibited such a belligerent and hostile attitude
towards the authority of the court.
50.
The Acting Prosecutor General discharges the duties of the Prosecutor
General. The office of Prosecutor General is a Constitutional
appointment. Courts are also created by the Constitution.
This
court, in particular, is a superior court with inherent and unlimited
jurisdiction over all matters, civil or criminal save as excepted by
the Constitution.
By
adopting a hostile and stubborn attitude towards the authority of
this court and/or a judge of this court in the discharge of his
Constitutional functions as such, the Acting Prosecutor General's
conduct has the potential to create a Constitutional crisis where one
Constitutional body undermines the authority of the other.
The
rule of law can only be threatened by such conduct.
The
conduct exhibited by the Acting Prosecutor General, of creating a
stand-off between the office of the Prosecutor General and this
court, as happened in this case, where he refused to attend when
called by the court, must be deprecated and censured.
51.
The Prosecutor General, admittedly, and in terms of section 260 of
the Constitution, is independent and not subject to the direction or
control of anyone.
He
should not however get carried away because the independence of that
office is subject to the Constitution.
Since
this court has original and inherent jurisdiction which extends to
all persons and matters, the Prosecutor General unlike the President
who enjoys immunity whilst in office in terms of section 98 of the
Constitution, must and is expected to defer to the authority of the
court and is not above the law.
52.
Whilst the criticism of the Acting Prosecutor General's conduct may
appear to be hard hitting, he only has himself to blame because he
was given the opportunity to present himself before the court and
explain his conduct in writing a letter behind a judge's back in an
apparent attack on the judge and the court's integrity and he
deliberately refrained from doing so.
Legal
practitioners, like the Acting Prosecutor General, are senior
officials of this court and should lead by example.
Anything
short of impeccable conduct on the part of the Acting Prosecutor
General, the Prosecutor General and members of the National
Prosecuting Authority as with any other legal practitioner of this
court is a recipe for the breakdown of the due dispensation of
justice and rule of law.
53.
Having dealt with the issue of the unacceptable conduct of the Acting
Prosecutor General, I lastly deal with the application for my
recusal.
I
have already pointed out it was defective to the extent of citing the
judge (myself) as a party.
It
is trite that a party cannot be an arbiter where he is a party.
I
enquired from the lead prosecutor whether I should not engage a legal
practitioner to represent me since I was cited by name as the second
respondent.
The
citation of myself exemplified the comedy of errors on the part of
the Acting Prosecutor General.
He
further committed to deposing to the affidavit in support of the
application.
A
reading of the affidavit shows that he had no personal knowledge of
what transpired in the court which led him to seek the recusal of the
judge.
He
deposed that the application for my recusal was motivated by “certain
objections… raised and brought to his attention by the Prosecution
Team.”
The
transcribed record will show that the prosecution team did not raise
any objections against the judge except the fact that the team did
not consider the defence application in limine to have been properly
served as it had not been served at the offices of the National
Prosecution Authority and stamped although it had been filed of
record.
54.
The Acting Prosecutor General took a calculated risk of deposing to
the founding affidavit on matters which took place in court in his
absence.
The
application does not include any verifying or supporting affidavit by
any member of the prosecuting team to authenticate the so called
objections which were allegedly raised.
The
Acting Prosecutor General would have been expected to be on the guard
to refrain from adducing evidence in the nature of hearsay.
The
advisable course for him would have been simply to get one member of
the prosecution team, who could vouchsafe for what happened in court,
to depose to an affidavit to that effect.
55.
After considering the contents of the founding affidavit and noting
several distortions and untruths as to what the Acting Prosecutor
General was alleging to have transpired in court, I asked Mr
Chinwginyiso to advise the court on who had prepared the application.
He
responded that the application had been prepared by the Acting
Prosecutor General in his office.
The
prosecuting team did not have a hand in its preparation. The team was
however ready to motivate it based on the contents of the founding
affidavit.
I
should mention that one other reason for directing that a
transcription of proceedings be prepared were the distortions of
facts noted in the affidavit of the Acting Prosecutor General.
56.
In dealing with the reasons for seeking the judges recusal, the
Acting Prosecutor General alluded to other grounds already contained
in his letter to the Judge President.
I
have dealt with them and will not unnecessarily dwell on them.
57.
The Acting Prosecutor General deposed that prior to 13 February 2017
“the State had been furnished with information from an independent
source that the second respondent (myself) had prior knowledge of an
application that was going to be made which was a surprise to the
State because no application had been served upon it”.
The
independent source was of course not disclosed nor details of when
and how the judge had obtained the prior knowledge.
Mr
Chigwinyiso could not provide further details.
To
disabuse the State of dangerous rumour mongering and gossip, I did
advise the counsels that it was true that through my clerk I have
been advised the previous week that the defence counsel, for the
accused person had indicated that he would be making an application
on the date of trial, the nature of which was not disclosed.
58.
The circumstances of how such communication was made are very simple
and were open.
In
terms of section 66(8) of the Criminal Procedure and Evidence Act an
accused person who is legally represented is required to prepare and
file a Defence Outline and list and summary of the evidence of any
witnesses within 3 days of the trial date.
When
I was reading through the record of the present matter to prepare for
the trial, the indictment papers being voluminous and in the
preceding week, I noticed that there was no Defence Outline on
record.
I
directed my clerk to check with the Registrar whether a Defence
Outline had been filed and could be in registry since the record was
already in my chambers.
I
was advised that there was no Defence Outline filed.
I
then directed my clerk to contact the accused person's defence
counsel and enquire as to whether a Defence Outline had been filed
and for counsel to do so, if it was intended to file one so that I
acquaint myself with the case before trial.
My
clerk then wrote a note to indicate that she had been in touch with
Mr Mpofu who indicated that the defence would not be filing a Defence
Outline but would be making an application.
The
nature of the application was not disclosed and neither was it of
concern to the judge to have details of the same.
59.
The judge happened to be dealing with another criminal trial which
was set down until Friday 10 February 2017.
The
prosecutor Mr S.W. Munyoro had wanted to postpone the matter to the
following term on a date to be advised because the trial could not be
completed by 10 February 2017.
It
was then that I proposed that Mr Munyoro should instead postpone the
trial underway to 13 February 2017, the same date that the present
matter was set to commence.
A
disclosure was made to Mr Munyoro that my clerk had been advised by
the defence counsel that they would be making an application whose
nature I did not know.
Mr
Munyoro was advised to arrange to utilize the slot allocated to this
case and complete his case in the event that whatever application was
going to be made by the defence had the effect of causing the present
case not to commence.
In
the event that this matter commenced, then new dates for continuation
of Mr Munyoro's case could then be arranged.
The
arrangement was agreed to.
To
then impute ulterior motive or improper conduct on such an open
arrangements and to make it a ground for recusal yet all that the
court intended to do was to ensure that the prosecution utilizes all
available time to the court to clear its cases is, with respect, very
unfortunate if not mischievous.
In
the absence of disclosure by the Acting Prosecutor General as to his
source of knowledge, the position regarding prior knowledge of the
defence application on the part of the judge was as explained.
60.
In passing, the Acting Prosecutor General needs to appreciate that
one of the reasons why criminal cases set down sometimes fail to take
off the ground is because of lack of prior preparation on the part of
his officers by not following up on defence counsel to provide
Defence Outlines and/or finding out on their positions with regards
the accused's defence prior to the set down date.
There
is nothing irregular about a judge to whom a matter has been assigned
directing his or her clerk to follow up on counsel and finding out
the position with missing documents which are by law required to have
been filed prior to trial.
Failed
or delayed take off of cases should be avoided.
To
wait to be told on the date of trial that the case cannot take off
for reasons of the absence of a Defence Outline clearly shows
dereliction of duty or lack of preparation on the part of the court
and counsel.
The
approach of this judge (myself) has always been to require his clerk
to contact counsel before trial where there has been non-compliance
with the provisions of section 66(8) of the Criminal Procedure and
Evidence Act.
If,
as happened in this case, counsel advises that it is not intended to
file a Defence Outline, the fact is endorsed on the record and the
judge is alerted that the trial may not take off.
Other
court commitments can then be put on stand by to be dealt with in the
event of trial failure.
61.
The Acting Prosecutor General in his founding affidavit repeated the
same objection made in his letter that the judge improperly referred
to the accused person as “Prosecutor General”.
He
went a step further to indicate that the judge had used the word
“Honourable” Prosecutor General.
In
his view the correct reference should have been to simply refer to
the accused person as “ACCUSED”.
He
reasoned that the title Prosecutor General could only be “legally”
resumed or used to describe the accused person once his suspension
has been removed.
I
have already dealt with the argument and ruled that since the accused
person had only been suspended from carrying out his duties, such
suspension did not suspend his appointment but the discharge of his
duties.
Simply
put, it would be correct for a bystander to remark that: “The
Prosecutor General of Zimbabwe is on suspension and that an Acting
Prosecutor General was appointed to discharge the duties of the
Prosecutor General until the latter's fate has been decided.”
How
the Acting Prosecutor General reasoned that there was a breach of
court etiquette by calling the accused person by the title of his
office defies logic.
This
case concerns the Prosecutor General who was indicted for trial after
being charged for criminal transgressions. The prosecuting team knew
that it was leading the prosecution of the Prosecutor General.
To
reason that the team felt compromised and placed in an invidious
position by the use of the words 'Prosecutor General' in
reference to the accused person is to raise a bluff or ruse if not a
red herring.
62.
The Acting Prosecutor General also deposed that the judge had
referred to the accused person as “Honourable” Prosecutor
General.
There
was never a time, as the transcript will show, that the word
'Honourable' was used in reference to the accused.
Whilst
the matter was not argued, I venture to hold that l do not consider
that the Prosecutor General, acting or otherwise, should be referred
to as 'Honourable'.
These
honorifics sometimes get into people's heads.
The
word 'Honourable' is normally used in reference to the President,
Prime Minister and cabinet members. It is also used in reference to
Members of Parliament.
In
some countries, the President or Head of Government prepares a list
of posts which are prefixed by the word 'Honourable'.
Judges
are referred to as Honourables.
It
does not follow that because the process of selecting the Prosecutor
General and his removal follow that of judges, the Prosecutor General
equates to a judge and to similarly be referred to as 'Honourable'.
Even
if I am wrong that the Prosecutor General is not referred to as
'Honourable' the position remains that the Acting Prosecutor
General was misinformed because no one referred to the accused person
using the honorific 'Honourable'.
63.
This judgment has already dealt with the issue of the judge having
once served on the Board of the National Prosecuting Authority.
The
issue was raised in the letter already dealt with and was repeated in
the founding affidavit.
The
comments already made are accordingly repeated herein by reference.
In
short, the matter for which the Prosecutor General was indicted had
nothing to do with the Board of the National Prosecuting Authority.
Additionally
when the cases were allegedly committed, the judge was not a Board
member of the said Authority which had neither nor come into being or
the judge had already left the Board.
The
Acting Prosecutor General deposed that the judge may harbor personal
feelings towards the accused person on account of the interaction the
two enjoyed on the Board.
What
are personal feelings? Are they of hate or favoritism?
Judges
are sworn to discharge their duties impartially and without bias or
malice.
Where
the judge perceives that his independence of thought may be affected
or tainted by a prior association with a litigant, it is proper that
the judge recuses himself or herself.
64.
The Acting Prosecutor General, in his affidavit, then deposed to the
fact that the judge had dealings with Munyaradzi Kereke, a rape
convict, wherein the accused in this case had refused to issue a
nulle prosequi certificate which would have aided the institution of
a private prosecution.
When
Munyaradzi Kereke's bail application pending appeal was placed
before the judge, he recused himself.
The
Acting Prosecutor General, of course, did not bother to acquaint
himself with the full facts of the recusal by the judge.
The
judge recused himself principally because he acted as Munyaradzi
Kereke's legal practitioner when police preferred the rape charges
and the judge assisted with the recording of the warned and cautioned
statement.
The
judge also had financial dealings with Munyaradzi Kereke and received
remuneration from him for such work and services.
The
same does not obtain in this case and the parallel sought to be drawn
does not apply.
65.
The Acting Prosecutor General sought to explain his ill-advised
overture of writing a letter to the Judge President imploring him to
chivvy a judge presiding over a trial to voluntarily recuse himself.
The
fact that the judge may be a classmate or family friend of the
Prosecutor General did not justify the manner in which the Acting
Prosecutor General conducted himself.
Whilst
as l have already pointed out, he may have been well meaning, the
fact remains that it should not be done that way.
The
public must never entertain a wrong belief that judges can be
interfered with in their judicial functions by their bosses or other
juristic persons like the National Prosecuting Authority.
The
independence of a judge is intrinsically connected with the rule of
law.
Litigants,
including the Acting Prosecutor General, must play the game by the
rules and be an example to the public that judicial independence must
not be interfered with.
Section
164(2)(a) of the Constitution is very clear that no person, including
the State or any of its institutions, should interfere with court
functions.
Where
a litigant has an issue to raise concerning a matter before the
court, such litigant should raise the issue openly and not
nicodemously.
The
public perception of behind the scenes correspondences between a
litigant and judges is susceptible to so many wrong conclusions and
erodes the confidence which the public reposes in the courts.
66.
The Acting Prosecutor General, lastly, indicated that he did not have
any personal motivation to question the integrity of the judge. He
stated that:
“I
am of the strong view that there is a real risk of bias, actual or
subconscious on the part of second respondent (myself) and a real
risk of a perception of bias in the mind of any reasonable person and
that the proper administration of justice will not be served”.
One
must be fair to the Acting Prosecutor General and accept that indeed
he has not mounted a personal attack on the judge.
67.
The issue for determination after all has been said and done is
whether or not, sufficient grounds have been established to
disqualify the judge from presiding over this case.
In
other words, should the judge recuse himself as sought by the State?
68.
A judicial officer, and, in the present case, the judge, is sworn to
protect and uphold the Constitution. The judge is sworn to administer
justice to all persons alike without fear, favour or prejudice in
accordance with the Constitution and the law.
The
judge therefore has a duty to hear every case placed before him or
her.
This
duty ensures that the constitutional right of litigants to a timeous
justice dispensation is realized.
If
judges were to pick and choose and willy-nilly refrain from hearing
cases for flimsy reasons, the system will not work efficiently.
The
status of the person appearing before the judge is immaterial. This
is entrenched in section 165(1)(a) of the Constitution.
Therefore,
in this case, the fact that the person on trial is the Prosecutor
General of Zimbabwe is immaterial because of the doctrine of equality
of all in the eyes of the law.
69.
A judge is required to act impartially but is not expected to be
neutral.
The
two concepts of neutrality and impartiality are not the same.
It
is not possible to have a neutral judge who has no ideas, sympathies,
or opinions.
Since
a judicial officer is a product of his or her own life experiences,
it is a myth to expect that he or she would not have opinions and
sympathies.
Impartiality,
however, connotes a state of mind whereby the judge has no interest
in the outcome of a case but is open to be persuaded by evidence and
submissions made.
Bias
connotes a pre-disposition to a particular outcome or result.
Bias
can only be measured through conduct on the part of the judge from
which a reasonable apprehension of bias can be inferred.
Actual
bias therefore need not be established.
It
follows therefore that an apprehension of bias must be reasonably
grounded.
In
my view, the test set out in the Canadian Supreme Court case of R v S
(RD) [1997] 3 SCR 484 expresses the test for bias lucidly as follows:
70.
“The test is what would an informed person viewing the matter
realistically and practically, and having thought the matter through,
conclude.
This
test contains a twofold objective element; the person considering the
alleged bias must be reasonable and the apprehension of bias itself
must be reasonable in the circumstances of the case.
Further,
the reasonable person must be an informed person with knowledge of
all the relevant circumstances including the traditions of integrity
and impartiality that form a part of the background and apprised also
of the fact that impartiality is one of the duties the judges swear
to uphold.
The
reasonable person should also be taken to be aware of the social
reality that forms the background to a particular case…..
The
jurisprundence indicates that a real likelihood or probability of
bias must be demonstrated and that a mere suspicion is not enough.
The
existence of a reasonable apprehension of bias depends entirely on
the facts. The threshold for such a finding is high and the onus of
demonstrating bias lies with the person who is alleging its
existence.
The
test applies to all judges, regardless of their background, gender,
race, ethnic origin or any other characteristic.”
71.
The onus is therefore on the State to prove a real likelihood or
apprehension of bias or impartiality on the part of the judge.
The
Acting Prosecutor General is no doubt an informed person in the sense
that he knows about the judicial tradition which entails the concepts
of integrity and impartiality that guide the judge in the discharge
of duty and the oath the judges swear to uphold.
72.
The State is required to set out facts from which an apprehension of
bias can reasonably be inferred.
The
Acting Prosecutor General first alluded to the fact that the judge
referred to the accused person in court as 'Prosecutor General'.
The
fact that the person on trial is the Prosecutor General was a matter
of public knowledge.
If
a person in the court gallery were to be asked after the day's
proceedings as to whose trial he attended he would say it is the
Prosecutor General on trial.
This
reference has nothing to do with whether the Prosecutor General is on
suspension and not discharging the duties of the Prosecutor General.
The
reference to the accused person by his title, which the suspension
did not strip him of, was not improper as argued by the Acting
Prosecutor General.
A
reasonable apprehension of bias could not reasonably be inferred on
the part of the judge on account of the titular reference accorded to
the accused person who in fact and in law was the Prosecutor General.
Perhaps,
the Acting Prosecutor General felt that the reference aforesaid
undermined his authority.
If
that be so, that was his subjective opinion which would not affect
the objective perception of the facts.
73.
The Acting Prosecutor General was unfortunately, perhaps,
mis-informed on how the proceedings in the court unfolded.
He
speaks to objections made by the prosecuting team; of short notice
given by the defence in filing their application; improper service;
and non-compliance with recognised rules of fairness.
I
have already indicated that everything that took place is on record.
The
Acting Prosecutor General was not in court.
He
based his depositions on hearsay. He was not the person best
qualified to depose to the founding affidavit but a member of the
prosecuting team.
I
have already dealt with the untruths and distortion of facts deposit
in the founding affidavit.
To
cut a long story short and avoid repetition, the prosecuting team was
allowed more time than it has requested to respond to the defence
application. If there was an apprehension of bias, the bias was in
fact extended to the State.
A
bystander would have questioned why the judge was giving more time to
the prosecution team than it requested to respond to the defence
application.
In
its wisdom, lack of it, or being misdirected, the prosecution team
reneged on its undertaking to file a response. At its further
request, another extension was given to it. It again reneged on the
undertaking; and, to date, the response remains outstanding.
74.
So much for the ethical and professional conduct of the prosecution
team. No other words can describe its conduct other than to call it
defiance.
The
response would have dealt with all the objections sought to be raised
if any.
In
my judgment, bias or an apprehension of bias, on the part of the
judge, cannot reasonably be inferred in circumstances where the judge
accedes to indulgences sought by a litigant and the litigant decides
to ignore its undertakings.
Bias
is inferred from conduct.
The
conduct of the judge was, if one were to argue, biased towards the
State which was given all the time it sought to file a response to
the defence application.
75.
Allegations that the judge deferred to the accused person and called
him by his title and that this would cloud the judge's judgment
have been addressed.
References
to the judge's recusal in a matter involving Munyaradzi Kereke as
already indicated was a red herring.
That
matter is not one of the charges which the accused person is on trial
for.
In
any event, as disclosed by the judge when he recused himself in the
Kereke bail application, there was never any interaction between the
National Prosecuting Authority or the Prosecutor General and the
judge, as legal practitioner in that matter.
When
Kereke was taken to court, at which stage the Prosecutor General
would have become involved, Kereke had engaged a different legal
practitioner and all that the judge was privy to was the recording of
Kereke's warned and cautioned statement.
Therefore
the inclusion of events concerning Kereke in this matter vis-a-vis
the conduct of the judge has no merit whatsoever and is quite
malevolent and vexatious.
76.
In conclusion, I find that the machinations by the Acting Prosecutor
General in writing a letter seeking that the Judge President
interferes with the independence of the presiding judge, of refusing
to appear before the court to explain his conduct, of citing the
judge as a litigant to the application for recusal and of deposing to
an affidavit and alluding to matters which did not happen in court
and distorting facts were unbecoming, unethical and unprofessional.
One
will be forgiven for holding that the conduct was self-serving as
opposed to pursuing the interest of justice.
It
was for the above observation that I prefaced my judgment by
describing the conduct of the Acting Prosecutor General as creating a
storm in tea cup and as an example of much ado about nothing.
77.
Before I pronounce my order, I would like to refer to the helpful
decided case of Zhou Haixi v Never Katiyo and National Prosecuting
Authority, 15-HH-774, a decision of Hungwe J.
Therein
the learned judge quotes extensively cases on recusal of a judicial
officer and bias, decided in this and foreign jurisdictions.
The
case is a must read for the discerning legal mind as it is very
instructive.
I
however found the case of R v S (supra) to simplify the concept of
judicial recusal and bias in wording.
The
principles expressed therein are of universal application.
Disposition
After
a careful consideration of the application and submissions by counsel
for both the prosecution and the accused person, I rule that the
State has failed to discharge the onus to establish cognizable
grounds for the judge's recusal and the application is dismissed.
78.
However, ex-abundata cautela, it is recorded that this matter is not
partly heard before me since the accused person did not enter a plea
nor was the indictment put to him. I also did not deal with the
preliminary issue of the defence application on the merits save to
issue an order, by request of the prosecution team, to extend the
time for filing of the State response to the defence application.
79.
Such response is still outstanding.
The
State remains dominus litis to pursue the prosecution of the matter
and the case does not have to be placed before me. It remains in the
court in which it was set down, that is court A, and once reset any
judge presiding in that court can deal with it.
By
consent of the State and defence counsels, the matter is postponed
sine die.
National
Prosecuting Authority, applicant's legal practitioner
Mukweva
Ngwerume, respondent's legal practitioners
