A HWANGE magistrate handling the case of suspended chief
magistrate Mishrod Guvamombe, who is accused of criminal abuse of office,
yesterday threw out an application for his recusal, saying it was common
worldwide that magistrates try their colleagues and judges try other judges.
Magistrate Collet Ncube ruled that the application by
Guvamombe for his recusal was stretching the objectives of the recusal merit
too far.
Guvamombe had filed an application for his trial to be
moved to the High Court, saying all magistrates in Zimbabwe and the Sadc region
were his juniors and could not try him, but only judges.
But Ncube said one of the criteria for judicial bias must
be the perception that there might be a bias in the trial.
He said there was no cogent reason to give rise to his
bias, as it was just a reflection of thought since there was no evidence to
that effect.
Guvamombe had submitted that he promoted Ncube to the level
of regional magistrate on merit and any ruling he would deliver would be
received with suspicion, but Ncube said his promotion was done on merit by the
Judicial Services Commission, and not Guvamombe as an individual, and that
could not stop him from presiding over the case.
Ncube further ruled that the State should have been the one
to complain of bias because the accused was his superior, but it was not the
case since he was just an ordinary magistrate.
"There was no
cogent reason to give rise to my bias, it's just a reflection of thought. There
was no evidence that my rise to be a regional magistrate will have effect on
this case. The appointment was on merit. If there was anything done on my
behalf behind the scene for me to be where I am, then I don't know of any, but
my appointment was done by JSC," Ncube ruled.
"The application does not conform to the objective of
recusal. Should I be wrong, of which I doubt, that will be corrected by a
review."
Guvamombe had raised concern that Ncube's superiors, Hosea
Mujaya and Elijah Makomo, were witnesses in the case and might also influence
decisions he would make.
The Hwange magistrate, however, left the court gallery with
more questions than answers when he called for a brief adjournment after the
State and defence could not agree on the next remand date.
The defence had asked for the matter to be postponed to May
17, but the State wanted April 17.
Ncube then said he wanted to consult his superiors, who are
also the witnesses in the case on when the case should proceed.
He further said he needed to organise with his superiors on
the modalities of his stay in Harare since his family was in Hwange.
However, when the court resumed, Ncube dismissed the
defence's plea for a long remand and postponed the matter to April 17. Newsday
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