Magistrate ‘Nduna made up his own facts in denying Sikhala bail’
"The State is very quick to deny bail but very slow to provide a trial date," Jeremiah Bamu.
Opposition Citizens Coalition for Change (CCC) vice chairman Job Sikhala has applied for the recusal of Magistrate Ngoni Nduna in the obstruction and defeating the course of justice case, arguing that he misrepresented facts when he denied him bail previously.
Sikhala was put in the remand prison this week after being taken from Chikurubi Maximum Prison where he was detained together with fellow CCC MP Godfrey Sithole over allegations that they incited violence at the funeral wake of murdered party activist Moreblessing Ali.
The two legislators were denied bail by both the Magistrate Courts and the High Court.
Sikhala was charged with fresh, trumped up charges of obstructing the course of justice.
Sikhala’s lawyer Beatrice Mtetwa made it clear that they were applying for the recusal of Nduna in the case.
They are accusing him of making “up his own facts in denying him bail”, separate from what was in the State’s form 242.
“Some of you know that Magistrate Nduna previously denied Hon Sikhala bail on a basis that had not been relied upon by the State factually in its form 242,” Mtetwa told the media on Thursday.
She also dismissed Nduna’s assertion that Sikhala had the propensity to commit more offences if released on bail because he had been arrested 65 times.
Mtetwa said her client was arrested many times but he was never found guilty, hence not a serial offender.
“In short, he made up his own facts in denying him bail. In addition, he also denied him bail on the basis that he has a propensity to commit offences because he had been arrested 65 times in a short space of time. Firstly, this 65 times relate to a 21 year period so to characterise 21 years as short was again his own creation.
“But more importantly, he then relied on propensity based on arrest not conviction. As you all know, political leaders get arrested many many times. They never get tried.
“You had Mr Jeremiah Bamu addressing the court on the fact that the State is very quick to deny bail but very slow to provide a trial date.
“It is a misdirection to say the police have to to arrest you whether rightly or wrongly that shows a propensity when you have not been convicted.”
Ali’s alleged killer Pius Jamba has since been arrested and he is being detained at Harare Remand Prison pending finalisation of his case.
But Sikhala and Sithole are accused of inciting public violence to avenge the death of Ali and are being detained at Chikurubi Maximum Prison.