Malaba crisis: Lawyers seek Gwaunza recusal

LEGAL experts yesterday mounted pressure on deputy Chief Justice Elizabeth Gwaunza to recuse herself from hearing a case where her boss, Chief Justice Luke Malaba, is being challenged over his continued stay in office, saying she was an interested party and conflicted.

Gwaunza is among the Constitutional Court judges set to hear an application by a Bulawayo man, Marx Mupungu, challenging a landmark ruling by three High Court judges, who declared that Justice Malaba had ceased being a judge when he reached the retirement age for judges that was previously set at 70.

President Emmerson Mnangagwa controversially used the newly-enacted Constitution of Zimbabwe Amendment No 2 Act to extend Malaba's tenure.

The new amendments also extended the retirement age for judges to 75 to give the beleaguered Chief Justice a lifeline.

Mupungu's lawyer, Lovemore Madhuku, wrote a letter to the Registrar on June 7, requesting that the application be placed before the Chief Justice or Deputy Chief Justice to determine the urgency of the case.

This has been challenged by lawyers who feel that Malaba's case cannot be presided over by his deputy, Gwaunza.

A case management meeting was held on June 11 and Zimbabwe Human Rights NGO Forum director Musa Kika's lawyers requested that Gwaunza recuse herself from hearing the matter since it sought to overturn a judgment on a case where she was cited as an interested party.

Kika was one of the people that successfully challenged Malaba's term extension, and he is cited in Mupungu's application.

Mupungu also cited the Young Lawyers Association of Zimbabwe.

However, the deputy Chief Justice has refused to recuse herself and will hear the application.

Kika filed a notice of opposition on June 18 and the matter has been slated for July 14.

But more lawyers yesterday said Justice Gwaunza was an interested party in the case and should do the noble thing - recuse herself.

They said even though Mupungu conveniently did not cite justices Malaba and Gwaunza, the fact that the order sought would overturn a judgment in a matter where she was cited by Kika and the Young Lawyers Association of Zimbabwe meant that she was conflicted.

Lawyer Chris Mhike said it was difficult to understand how the relief sought by Mupungu could be deemed to be irrelevant to Kika's case.

"In objective, factual and legal terms, the link between these cases seems to be quite obvious," Mhike said.

"While it is trite that interpretation of legal questions vary from one jurist to another, it must also be remembered that justice must not only be done, justice must also be seen to be done.

"In the case under review, recusal would probably be the most prudent and reassuring approach to be taken. This is more so when one considers the jurisprudential, political and moral importance of the matter at hand."

Mhike, however, said it was still up to the presiding judge to determine whether she could hear the matter or not.

Another lawyer, Arnold Tsunga, said it was important for a judge to be seen to be impartial.

"Generally, the legal position is that you cannot be a judge in a matter where you are cited as a litigant or where you have an interest in the outcome. It violates the principle that justice must not just be done, but must be manifestly seen to be done," he said.

"If the lawyers representing Kika feel that any judge is conflicted, then it will be within their rights to make a formal application for recusal citing reasons for such application.

According to another lawyer Tonderai Batasara, the concerns around Gwaunza's perceived conflict of interest are legitimate.

"Clearly, she is conflicted. It is not desirable for a person to be a judge in their own matter. Justice must be seen to be done," Batasara said.

In his affidavit responding to Mupungu's case filed on June 18, Kika said: "It is my view that this court is competently non-suited to hear this matter on account of their position as active litigants who are already seeking the vacation of the judgment of the High Court. It is my further view that the situation that the honourable judges have been put into is completely avoidable in view of the appeal before the Supreme Court."

High Court judges, Justices Happias Zhou, Edith Mushore and Jester Charewa ruled that incumbent judges could not benefit from the amendment of the Constitution extending the term limits.

Kika cited all the Constitutional Court and Supreme Court judges, including Gwaunza, in his High Court case.

Some High Court judges were cited while as acting Supreme Court judges.