“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'.
The next page was the accused's affidavit and there was no alteration to the citation of the parties names.
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.
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 apologised 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 the 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.
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 underway whereby His Excellency, the President of Zimbabwe had invoked the provisions of section 187 of the Constitution.
Section 187 of the Constitution aforesaid deals with the removal from office of judges and applies to the Prosecutor General.
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.
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.
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.
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 realize, 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
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.”
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.”
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.
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.
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.
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.
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.
