Three MDC-Alliance parliamentarians contesting their recall from Parliament do not want High Court judge Justice Pisirai Kwenda hearing their case since he has already ruled against 14 other MPs who made a similar application last month.
Lilian Timveos, Prosper Mutseyami and Thabita Khumalo were
recalled from Parliament by the MDC-T for sympathising with the MDC-Alliance.
The basis of the recall is that the Supreme Court found in
a civil suit that under party rules Thokozani Khupe was acting leader of the
MDC-T and that the MDC-T is legally entitled to recall any legislators placed
on the MDC-A list through a MDC-T nomination.
Through their lawyer, Mr Tendai Biti, the trio first wrote
to Judge President George Chiweshe asking for the matter to be placed before
another judge on the basis that Justice Kwenda had already decided on the main
issues raised in the present application in his previous ruling against Basilia
Majaya and others.
However, the Judge President advised Justice Kwenda that
once he had allocated a matter, as he had done, his administrative functions
had ended.
This entails that the issue of recusal was now a
substantive issue before a concerned judge.
In the application for recusal, Mr Biti argued that Justice
Kwenda has already made his decision on the matter and should not sit as to
what amounted as a court of appeal on his own judgment.
In this regard, Timveos, Mutseyami and Khumalo were
entitled to equal protection and benefit of the law in terms of the
Constitution.
Mr Biti said equal protection and benefit of the law and
due process required that another judge who had not pronounced judgment on the
same issue, be allocated the case.
Justice Kwenda threw out two urgent chamber applications by
14 other MDC-A legislators on a similar case in August.
He upheld the recalls in a finding that the 14 failed to
prove that their recalls were unlawful. His judgment was based on his
interpretation of the Supreme Court ruling and other undisputed evidence placed
before the court. Herald
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