A High Court judge has rejected a motion from CCC politician Job Sikhala attempting to disqualify him from conducting his appeal against both conviction and sentence on a charge of obstructing the course of justice on the grounds that the judge had been biased against the politician.
Justice demands that judges should not recuse themselves without cause as recusal motions could also be used as a form of ‘judge shopping’ and delaying tactics.
Sikhala, through his legal team had requested Justice Benjamin Chikowero to recuse himself from his case, claiming bias. But the judge threw out the motion for recusal for lack of merit.
“There is no objective basis for the applicant (Sikhala) to hold a reasonable apprehension that I would not bring an impartial mind to bear in hearing and determining the appeal and the application for review,” ruled Justice Chikowero.
Sikhala applied for the recusal of Justice Chikowero presiding over case numbers HACC (A) 12/23 and HC 8597/22.
The former being an appeal against the whole judgment of the magistrates’ court convicting him of one count of defeating or obstructing the course of justice, while the latter is an application for review of the trial court’s interlocutory decision dismissing the politician’s exception to the same charge.
Sikhala had wanted the charge dropped on the basis that it did not disclose an offence, but the trial court found otherwise.
Where the reason for seeking recusal is not actual bias, the test is whether there is a reasonable belief that a real likelihood of bias exists.
So, the person considering the alleged bias must be reasonable and the apprehension of bias itself must be reasonable in the circumstances of the case, said Justice Chikowero alluding to several case laws where it was held that in considering an application for recusal there is a presumption that judicial officers are impartial and that the onus is on the applicant for recusal to rebut that presumption by adducing cogent and convincing evidence.
“This is in recognition of the position that it is not easy to dislodge the presumption of judicial impartiality,” he said.
“On a reasonable, objective and informed appreciation of the correct facts of this matter, the application for the recusal of Chikowero J(Justice) is frivolous.”
Under case Number HC 8897/22, Sikhala had sought review of the trial court’s interlocutory decision dismissing his exception to the charge.
Following certain developments during the proceedings then pending before the trial court, Sikhala, before that court, brought an application for an order interdicting the prosecution from leading further evidence.
That application was dismissed. Among the reasons for that decision was that the application was misconceived in that the question of the prosecution leading further evidence did not arise as the State had not even opened its case, the decision Sikhala also took on review.
Thereafter, Sikhala, through his legal team, then applied for the postponement of the trial pending determination of the two applications for review.
The trial court dismissed the application for postponement of the trial and Justice Chikowero in his judgment, said Sikhala then showing a never-say-die attitude filed an urgent chamber application for stay of the then unterminated trial proceedings pending before the trial court pending determination of the two court applications for review.
To this end, Justice Chikowero struck that application off the roll, having found that it was not properly before him. In rendering the decision in case number HH 176/ 23, Justice Chikowero did not consider whether the application itself was urgent.
This was so because he had found that the application was not properly before the court and he did not, for the same reason, consider whether there was a basis for interfering with the then unterminated course of proceedings pending before the trial court.
Finally, again for the same reason, he was not required to, and did not consider, whether the application for review of the decision dismissing the exception had reasonable prospects of success.
And Sikhala’s application for recusal was predicated on those aspects, so Justice Chikowero found the recusal bid frivolous.
The prosecution argued that recusal is not a method of first resort. There are many requirements that must be met before a judge can be removed from a case, both from a procedural standpoint and on the merits. Prosecutors were supposed to zealously oppose any attempt to remove a judge that does not meet the standards of recusal.
Sikhala was in May convicted and fined US$600 for obstruction of justice after he posted on social media a video relating to the murder of Ms Moreblessing Ali and the violence that ensued in Nyatsime sometime last year.
The court ordered him to pay the fine by May 5 or risk serving six months in prison. Additionally, another six months were wholly suspended on the condition that he does not commit a similar crime in the next five years.
However, Sikhala remained in custody as he had three other pending cases before the criminal courts.
