Prosecution stands firm on Chin'ono recusal application

Judicial officers must refuse to be bullied by applicants who believe that justice is only served when decisions are made in their favour, two prosecutors said yesterday when calling for the dismissal of an application by political activist Hopewell Chin'ono to have the presiding magistrate Mr Ngoni Nduna recuse himself from the case.

In his application, Chin'ono, through his lawyers Advocate Taona Nyamakura and Mr Gift Mtisi, accused regional magistrate Mr Nduna of bias, saying his right to a fair trial was being infringed.

Normally, those who disagree with a court's decision have the right to seek a review or an appeal in a higher court and in fact, Chin'ono has already lodged an application for review of one decision and appealed in the High Court over a refusal to grant him bail.

The grounds for the recusal application "include the fact that the applicant is currently litigating against magistrate Mr Nduna in an application for review of his decision to remove his legal counsel, the allegations and evidence of bias, malice and impropriety made in that application for review as well as the evidence of magistrate Nduna's conduct and attitude towards the applicant during the bail proceedings, including making false allegations against him," read part of the application.

"The gross irregularities in the proceedings in light of the facts, invite an inference that the judicial officer was motivated by bias or malice. In view of the above, the issue now is whether the same judicial officer can proceed in the matter without raising serious questions on the fairness of the proceedings going forward."

In response, the prosecution led by Mr Whisper Mabhaudhi and Ms Tendai Shonhai argued that Chin'ono's application lacked merit and should be dismissed.

They submitted that seeking to disqualify a magistrate because one was not happy with his decision would, if allowed, seriously compromise the justice delivery system.

"Recusal is the stepping aside or disqualification of a judicial officer from a case on the ground of personal interest in the matter, bias, prejudice or conflict of interest," they said.

"There is no basis to believe that the magistrate is conflicted or in any way incapacitated as to warrant his recusal.

"Judicial officers must resist the tendency to be bullied by applicants who believe that justice means decisions are made in their favour. Litigants, including the applicant, must accept decisions by courts without personalising issues. The issue is under consideration at the High Court in the review application.

"Applicant must save his energy for the review. This honourable court cannot review its decision. The applicant's disqualified lawyer is to blame for his predicament. She should have conducted herself in a dignified way. Wherefore, the State prays that the application be dismissed for lack of merit."

After hearing submissions from both parties in support of their written applications, Mr Nduna remanded the matter to November 10 for ruling.

Chin'ono is charged with incitement to commit public violence or alternatively incitement to participate in a gathering with the intent to promote public violence by posting messages through his Twitter handle between March 1 and July 20 this year.