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NPA bid for judges’ recusal thrown out

By Fidelis Munyoro

The National Prosecuting Authority’s bid to have the bail application for the son of High Court judge Justice Garainesu Mawadze heard by a retired judge, with the entire active bench of the High Court recusing itself, has been rejected.

Munyaradzi Mawadze and Justice Garainesu Mawadze
Munyaradzi Mawadze and Justice Garainesu Mawadze

Munyaradzi Mawadze is being jointly charged with Elvin Dongo Saungweme (22) and Dellon David Balani (22) on allegations of killing Million Ncube by slitting his throat with a knife after robbing him of three iPhone Promax 11 cellphones in March this year.

The prosecution had demanded that Munyaradzi’s bail application must not be heard by any sitting judge of the High Court, but rather by a retired judge who has no links with the suspect’s father. But Justice Webster Chinamora ruled that upholding such reasoning would set a dangerous precedent and bring chaos to the proper administration of justice.

He found the position advocated untenable as it would mean that High Court judges would have to recuse themselves from any case where a relative of a fellow judge is a litigant.

It was the judge’s view that all the judges took a judicial oath well appreciating that situations may arise which present them with difficult, though, not insurmountable choices.

In this case, Justice Chinamora said it should be borne in mind that the person before the court as a murder suspect is not Justice Mawadze but his son.

The judge held the view that the matter for determination by the court was a bail application, and elementary principles for dealing with bail applications are a well-beaten path.

In addition, the judge allayed the prosecution fears saying the provisions of the Constitution and the Criminal Procedure and Evidence Act had elaborate provisions which provided a guide to judicial officers on how to deal with bail applications.

“There are also numerous decisions in this jurisdiction and elsewhere which make it difficult for any judge to ignore the stare decisis principle (a legal principle of determining points in litigation according to precedent).”

Judges, he added, were also mandated to comply with the Judicial Service (Code of Ethics) Regulations.

Sections of this legal instrument address the issue of impartiality and recusal, hence Justice Chinamora said he was aware of what the law required of him, vis-à-vis the need to be impartial and when he needed to recuse himself.

The judge also found in ruling that the prosecution had not demonstrated that he or any other sitting judge of this court had a personal, other than a work relationship, with Justice Mawadze.

“Judges, including myself, invariably make decisions based on the facts in the record and the law relevant to the matter for determination,” he said.

“The suggestion that judges of the High Court render their judgments on the basis of camaraderie is patently far-fetched, if not impetuous, apart from creating a wrong impression of the professional and ethical integrity of the High Court bench.

“I must state that I respect my oath of office, and am aware of my constitutional obligations to dispense justice impartially.”

Justice Chinamora said nothing was placed on record to justify the recusal of the current High Court bench in its entirety.

“Finally, an examination of the test applicable to applications for recusal of a judicial officer from a case do not support the contention that the preponderance of probabilities favour the grant of the relief sought by the State,” he said dismissing the application.

After the court ruling, the bail application hearing proceeded with Munyaradzi’s lawyer, Mr Paidamoyo Saurombe, making his submissions for his client’s freedom pending trial.

Prosecutor Mr Henry Muringani opposed the application, but asked for postponement to next week to allow the investigating officer in the matter to be called in to give evidence on why Munyaradzi should not be admitted to bail. The Herald