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Judge refuses to step down from MDC Alliance case
09 Oct 2020 at 09:54hrs | Views
High Court judge Justice Pisirayi Kwenda has refused to step down from presiding over a lawsuit by four MDC-Alliance parliamentarians contesting their recall from Parliament, saying the motion for recusal was without merit.
Chalton Hwende, Lilian Timveos, Prosper Mutseyami and Thabita Khumalo had asked him to disqualify himself from their case since he had already ruled against 14 other MPs who made a similar application two months ago.
But Justice Kwenda rejected the motion, saying the MPs' legal team had failed to identify circumstances that showed he would not be impartial.
In the previous case, Justice Kwenda said he dealt with an urgent application and this did not mean that he would be disqualified from dealing with a substantive case.
"I do not see the application or relevance of the 'no-one is judge in his own cause' rule to this matter," he said.
"In the result, I am not persuaded that the applicants have shown that there is a sound basis for my recusal from this case."
The purpose of recusal is to underpin the twin pillars of independence and impartiality.
"To withdraw from a case merely because a party suggests that a judge do so impairs judicial fairness. It allows parties to cherry-pick a bench of their choice," said Justice Kwenda.
The four were recalled from Parliament by the MDC-T for supporting the MDC-Alliance. The basis of the recall was that the Supreme Court found in a civil suit that under party rules, Thokozani Khupe was acting leader of the MDC-T and that the MDC-T is legally entitled to recall any legislators placed on the MDC-A list through an MDC-T nomination.
Through their lawyer, Mr Tendai Biti, the four first wrote to Judge President George Chiweshe asking for the matter to be placed before another judge on the basis that Justice Kwenda had already decided on the main issues raised in the present application in his previous ruling against Basilia Majaya and others.
Chalton Hwende, Lilian Timveos, Prosper Mutseyami and Thabita Khumalo had asked him to disqualify himself from their case since he had already ruled against 14 other MPs who made a similar application two months ago.
But Justice Kwenda rejected the motion, saying the MPs' legal team had failed to identify circumstances that showed he would not be impartial.
In the previous case, Justice Kwenda said he dealt with an urgent application and this did not mean that he would be disqualified from dealing with a substantive case.
"I do not see the application or relevance of the 'no-one is judge in his own cause' rule to this matter," he said.
"In the result, I am not persuaded that the applicants have shown that there is a sound basis for my recusal from this case."
The purpose of recusal is to underpin the twin pillars of independence and impartiality.
"To withdraw from a case merely because a party suggests that a judge do so impairs judicial fairness. It allows parties to cherry-pick a bench of their choice," said Justice Kwenda.
The four were recalled from Parliament by the MDC-T for supporting the MDC-Alliance. The basis of the recall was that the Supreme Court found in a civil suit that under party rules, Thokozani Khupe was acting leader of the MDC-T and that the MDC-T is legally entitled to recall any legislators placed on the MDC-A list through an MDC-T nomination.
Through their lawyer, Mr Tendai Biti, the four first wrote to Judge President George Chiweshe asking for the matter to be placed before another judge on the basis that Justice Kwenda had already decided on the main issues raised in the present application in his previous ruling against Basilia Majaya and others.
Source - the herald
