Justice Pisirayi Kwenda and Justice Benjamin Chikowero were yesterday expected to hear Sikhala’s appeal, but his lawyers made an interlocutory application for the recusal of Justice Chikowero claiming bias against Sikhala.
The judges heard Sikhala’s application, which the prosecution strenuously opposed, and reserved their ruling to November 14.
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 this year 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.
Meanwhile, Transform Zimbabwe leader Jacob Ngarivhume will have to wait a little longer to have his appeal against a public violence conviction and a three-year jail term after the High Court deferred the hearing to November 14.
Justice Chikowero deferred the hearing to next month at the request of the prosecution to allow a new counsel, who took over the matter, to adequately prepare. The new prosecutor asked for more time to prepare and submit their heads of argument. The defence did not oppose the request.
Ngarivhume is appealing against both conviction and sentence for inciting public violence arising from Twitter messages where he called for people to engage in public violence or join an illegal demonstration in July 2020.
Following his conviction, Ngarivhume approached the High Court seeking bail pending appeal but Justice Chikowero threw out the application.
The judge ruled that there were no prospects of success in the appeal against conviction. On the appeal against sentence, the judge thought Ngarivhume had prospects of success but would still serve a considerable period of time in jail. So the application for bail pending appeal was rejected.
n convicting Ngarivhume, the trial magistrate had found that the politician had made the Twitter posts, and the content met the criteria required by the charge.
Ngarivhume had initially on arrest agreed he had posted the tweets, but said his posts were protected by the Constitutional right of free speech. Later in court, he had argued that the Twitter handle had never belonged to him.
The State proved that Ngarivhume, through his actions, wanted or meant to incite the public to act in a disastrous and violent manner, according to the lower court’s ruling. The court then decided that only an effective prison term would send a strong message to likely offenders that violence was frowned upon.
The decision to send Ngarivhume to jail was guided by the criminal laws of the country as to the sentence because once convicted of inciting members of the public to commit a crime, the accused had to be sentenced in accordance with the law and precedent. Herald
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