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Lawyer pushes for judge's arrest

by Staff reporter
16 Aug 2020 at 15:58hrs | Views
PROMINENT Harare lawyer Admire Rubaya has filed a criminal complaint against Bulawayo High Court judge Thompson Mabhikwa for allegedly abusing public office after he ordered his "unjustified" 10-day incarceration at Khami Remand Prison in June.

Rubaya, who is facing theft charges or alternatively obstructing the course of justice after he defended his then client Jefat Chaganda for smuggling 14 kilogrammes of gold to Botswana, wrote to the Zimbabwe Anti-Corruption Commission (Zacc) and the police on July 28 seeking a probe and arrest of Mabhikwa.

He has also sought leave of the High Court to sue Mabhikwa for damages he suffered pursuant to the detention. He also wrote to the Judicial Service Commission, which regulates the conduct of judges, to investigate Mabhikwa's conduct.

Rubaya is jointly charged with Chaganda, who reportedly died early this year, the magistrate who tried the case at Plumtree, Timeon Makunde, prosecutor Stanley Chinyanganya as well as Dingumuzi Ncube, Tyson Ruvando, Godfrey Makuvadze, Ladislous Tamboonei and Ladislous Tinacho, who is in charge of the ZRP Minerals and Border Control Plumtree.

In his complaint to Zacc and the police, Rubaya alleged that on June 23, in the company of his co-accused, he appeared before Mabhikwa for a pre-arranged remand hearing.

He said he was shocked when Mabhikwa first stood down the case and when the court was reconvened, the judge said circumstances had changed and revoked their bail and remanded them in custody.

"For the record, the State did not make such an application, neither did it put forward any new facts warranting a relook at my suitability as a bail candidate.

"The judge acted with unparalleled caprice to my prejudice because he unlawfully incarcerated me in a bid to fast-track a trial he had earlier on postponed to the 8th of September 2020 by the consent of all the relevant stakeholders. This he did without being asked to do as no submission on the substance of the matter was made. I say he acted with prejudice to me because his conduct and his decision to mero motu revoke my bail showed irrational hostility and violation of my constitutional right to personal liberty," read Rubaya's complaint to Zacc.

"He arbitrarily deprived me of my personal liberty without any justification in fact and at law. It is clear from the reading of his judgment that he was punishing me for Jefat Chaganda`s non-appearance on the 11th of May 2020 and 23rd of June 2020 …

"Justice Mabhikwa's decision to mete "group" punishment on the co-accused persons who were in attendance on 23 June 2020 on the basis of the non-appearance in court of Jefat Chaganda is not only unprecedented, but was a capricious one which negated basic fundamental tenets of natural justice. Such conduct is contrary to the duties of a judicial officer who is duty bound to dispense justice without bias and prejudice as exhibited in this instance by Justice Mabhikwa."

Rubaya said before his bail was revoked, he had read a Facebook account under the name of one Andrew Maimba, who claimed to be a journalist, who posted on his wall on June 11 warning him of the incident that finally unfolded in court on June 23.

"This whistle-blower (Maimba) proceeded to write a follow-up article on the very day I was incarcerated indicating that he had advised me about my impending detention, but that I had not paid heed.

Andrew Maimba then attached a Chronicle report relating to the revocation of my bail, celebrating his victory and achievements as someone who was always in touch with what goes around and whose warnings I ought to have taken heed of…

"It is a cause for investigation that a journalist had knowledge of how court proceedings before Justice Mabhikwa were to unfold twelve days before.

"It makes a circus of our courts of law as this could not have been mere speculation because Maimba went on to tell the whole world through Facebook that he had been aware of what would befall me as far back as the 11th of June 2020."

"I am persuaded to think that the decisions made on the day in question were pre-planned as they were taken outside the courthouse since self-styled journalists like Cde Andrew Maimba were already privy to the outcome. This is criminal conduct that reduces the judiciary to a rubber-stamping role of some people's capricious and quirky decisions," read the complaint to Zacc.

Rubaya said there was clear evidence that Mabhikwa had "unlawfully and intentionally acted contrary to and inconsistent with his constitutionally enacted duties as a judge of the High Court". He said the judge "intentionally acted in the proscribed manner for the sole purposes of showing disfavour or prejudice to me, in that he unlawfully and intentionally mero motu revoked my bail without any support in fact and law, without any application made to him by the State and without hearing my legal practitioner, resulting in me unjustifiably spending ten days and ten nights illegally detained at Khami Remand Prison".

In his application for leave to sue the judge, Rubaya said Mabhikwa's actions were personal and intends to sue him for up to $1 million dollars if his application succeeds.
"The procedure adopted by the respondent is completely alien to law and was adopted ex mero motu. It was adopted not in the pursuit of the ends of justice or the due discharge of function. It was instead adopted capriciously, without just cause and malafide," Rubaya said in his affidavit.

"There can be no doubt that the respondent acted on the basis of personal or other considerations. Those considerations are not stated in the ruling, but clearly explain it.

"The actions by respondent constitute an abuse of judicial function, itself a public trust reposed in judges by the people of Zimbabwe. This in the order of things amounts to a criminal offence in terms of Section 174 of the Code," Rubaya argued.

Rubaya was only released from Khami remand prison after approaching the Supreme Court, which chastised Mabhikwa's decision to revoke his bail.

Supreme Court judge Nicholas Mathonsi had no kind words for Mabhikwa and ruled that his decision to revoke Rubaya's bail was trivial under the circumstances.

"I have no doubt in my mind that the decision by the High Court to revoke the applicant's bail is capricious. It is arbitrary in the circumstances. It has to be vacated," Mathonsi said

Source - dailynews