Bias of judicial officer (Zimbabwe)
Every accused person has the right to a fair trial by an impartial judicial officer. If the judicial officer is biased or there is a reasonable suspicion that he or she will be biased, the defence lawyer has a duty to raise this matter and to request that the judicial officer concerned recuse himself or herself. Before making such an application, the legal practitioner must satisfy himself or herself that there are well-founded grounds for applying for the recusal of the judicial officer concerned. The legal practitioner must not simply base the application on what he has been told by his client without checking this information. Thus in the case of Muzana & Ors S-105-89, the Supreme Court severely censured a defence lawyer who had made serious allegations of partiality and bias on the part of a magistrate in an effort to get him to recuse himself. He had simply repeated his client's assertions without having made any effort to check whether there were any facts to substantiate these allegations. In the case of S C Shaw (Pvt) Ltd v Minister of Lands S-32-05 the lawyer representing a client who was challenging the validity of compulsory acquisition of land alleged that the acceptance of offers of land by judges prior to the determination of the validity of the acquisition of the land, together with improper pressures brought to bear on judges by members of the government and cabinet, was not compatible with constitutional concept of a fair trial before an independent tribunal. No evidence was submitted in support of this allegation. It was held that courts in Zimbabwe have a responsibility to protect their dignity. Where legal practitioners, who are officers of the court, and as such, are expected to know better, make irresponsible submissions scandalizing the court mere admonition is inadequate and action should be taken to punish such legal practitioners for contempt of court.
For the public to have confidence in the administration of justice, it is essential that the courts are seen to be fair and impartial. A judicial officer should therefore not try a case if X or the complainant is his friend or enemy or is his relative So too he should not try a case involving his wife's mother or the spouse of one of his long standing and trusted court officials.
If the prosecutor wrongly discloses the previous convictions to the magistrate during the course of the trial, the judicial officer is obliged to recuse himself or herself. If he or she does not do so, the defence lawyer should request that her or she recuse himself or herself.
The conduct of a judicial officer during the course of the trial can lead to a reasonable apprehension of bias. Judicial officers who are presiding over criminal cases must not descend into the arena in the sense that they must not intervene during the course of trials in such a manner or to such an extent as to lead to an inference of lack of impartiality and open-mindedness. They are entitled to ask questions of witnesses in order to clarify the evidence, but they must refrain from bombarding them with questions to such an extent that they are disconcerted. If magistrates take over the role of examining or cross-examining witnesses they will not be able objectively to adjudicate on the evidence. He or she should not engage in questioning in way that gives the appearance that he or she is displaying bias in favour of prosecution. In Jesse v Pratt & Anor 2001 (1) ZLR 48 (H) it was held that the conduct of the magistrate towards the applicant throughout the trial was such that a fair trial of the applicant was impossible in her court. Apart from a number of irregularities, there were numerous indications of biased and irrational conduct on the part of the magistrate, all of which showed that the applicant would have reasonable grounds to suppose that he might be disadvantaged in the trial by reason of bias or prejudice actuating her.
In Masedza 1998 (1) ZLR 36 (H) the applicants were being prosecuted for a criminal offence in the magistrates court. During an adjournment of the proceedings, the applicants became aware of certain facts and, based on these facts, they applied for the recusal of the presiding magistrate. The magistrate refused the application. The trial was postponed to enable the magistrate's decision to be taken on review. The applicants applied to the High Court for an order stopping the criminal proceedings in the magistrates court, pending a review of the decision in relation to the application for recusal. The High Court held that if in the present case the application for recusal had been well founded, the court would have been prepared to grant an order stopping the trial pending review, as no purpose would have been served by putting accused through motions of a trial that would have been abortive. If there had been a reasonable apprehension of bias then justice will have failed and it might not be attained by other means. However, it found that the grounds upon which recusal was requested did not give rise to a reasonable apprehension of bias and thus the application for stopping the criminal proceedings must fail.
If a magistrate has to recuse himself during the course of the trial, the case cannot be taken over from that stage by another magistrate. The case will have to start de novo before a different magistrate. If, however, a magistrate recuses himself after he has convicted X, the case can be referred to a different magistrate for sentence: Moyo & Ors HB-211-87.