MARTIN MAWAYA
GWERU-The Chirumhanzu South constituency candidate in the August 2023 harmonized elections, Patrick Cheza, has filed an application seeking the recusal of presiding magistrate, Beaulity Dube.
Cheza is accused of inciting Citizens Coalition for Change (CCC) members to assault Tourism Minister Barbra Rwodzi, after the political rivals’ cars were involved in an accident along the Charandura-Chaka dust road.
He is jointly charged with Magmaster Chidyawuye (21), Delight Zinyemba (22), and Courage Mugova (20).
The application comes after Magistrate Dube initially adjourned the court for consultation on how the case could proceed, as she was going on vacation leave until September 9.
However, Dube stunned the court when she returned and abruptly ordered the defense counsel to proceed with the case without providing any reasons for her decision, despite initially agreeing to the State’s request for a postponement to a later date.
Cheza’s lawyers, Leopold Mudisi and Esau Mandipa, accused Magistrate Dube of bias, arguing that their client’s right to a fair trial has been infringed upon.
The defense counsel submitted that the presiding magistrate appeared to be under political influence, and questioned her impartiality, stating that she had consistently adjourned the court before delivering adverse rulings against their client.
They allege that these rulings appear to be influenced by instructions from Minister Rwodzi, which they argue violates Cheza’s right to a fair trial.
Additionally, the lawyers submitted that the perceived bias involves a prejudice or preconception that could lead to unfair handling of a case.
Furthermore, Mudisi asserted that “the accused persons now harbors a perception that the court is taking instructions from somewhere else, taking into account that the matter is political. Hence, the trial magistrate should recuse herself from the matter on the basis that the court appears to be biased”.
He added that the court should be impartial in line with Section 69 of the Constitution, which guarantees the right to a fair public trial before an independent judiciary.
The human rights lawyers cited Section 164 of the Constitution, which provides that the courts should be independent and apply the law without fear, favor, or prejudice.
“Independence, impartiality, and effectiveness are central to the rule of law in a democratic government. Neither the state nor anyone else is allowed to interfere with the functioning of the courts. The judicial officers must be guided by the decorum and procedures of the courts. Justice must be done regardless of one’s status or position. Judicial decisions must be made freely without undue influence,” said Mudisi.
Another Cheza’s defense counsel, Mandipa, emphasized the importance of the judiciary enhancing public confidence in the justice system.
He cited the Mawadze case, in which the issue of recusal was extensively addressed by the Supreme Court, adding that the court’s approach in Cheza’s case has given rise to a reasonable suspicion of bias and a lack of trust in the public eye.
“Where there is perceived bias, the judiciary or the presiding officer should not be guilty of actual bias. Perceived bias is one of the grounds for a judiciary officer to recuse themselves,” argued Mandipa.
He stressed that Magistrate Dube should recuse herself and the matter be allocated to another judicial officer, as the state has also conceded that the application is “based on a perception which is the basis of the prayer”.
After hearing the application, Magistrate Dube immediately dismissed it, stating that it lacked merit without providing any reasons.
Cheza’s lawyers have indicated that they will approach the Constitutional Court over the matter, and the case has been rolled over to August 19.
