The judiciary system is one of the most important organs of a democratic and functional state. At the center of the judiciary system is its impartiality and efficiency to dispense matters that are brought to its attention for adjudication expediently.
Section 164(2) of the Constitution provides that the impartiality of the judiciary – amongst other principles stated in the Constitution – is at the core the of the rule of law. It cannot be over emphasized how important it is to have an impartial judiciary in as far as boosting public confidence in the system is concerned.
There is even a greater call and need for such impartiality when dealing with public interest litigation because many a times, the litigation involves the government either at ministerial level or government agents’ level. The belief in an impartial judiciary system resonates well with the idea of justice. It is for this reason why; litigants are given an opportunity to apply for recusal of a judicial officer (magistrate/judge) if there are reasonable grounds of bias, prejudice and/or conflict of interest on the part of the judicial officer.
The process of recusal comes in two ways, which are listed below:
- A judicial Officer can mero muto recuse him/herself from a matter.
- A litigant to a matter may apply for the judicial officer handling the matter to recuse him/herself.
The same principles of recusal apply in both processes. However, they get to be tested mostly when an application for recusal has been made.
For simplicity, recusal means removing oneself from a particular matter and mero motu in this context means that a judge/magistrate identifies a potential bias, prejudice or conflict of interest and out of his/her own free will removes him/herself from the particular matter. Not much inquiry is done when a judicial officer elects to recuse him/herself from a case. However, when a litigant applies for recusal of a judicial officer, an inquiry is done to determine the veracity of an application.
In an application for recusal, the learned Chigumba J, in Sibanda v Chikumba & Anor HH 809/15 had this to say;
“In an application for the recusal of a judicial officer, what must be proved is the mere possibility of bias, not actual bias. What is important when considering the circumstances of each case is the impression or perception that is created in the mind of right thinking people, not the applicant’s subjective impression of bias. The test is an objective one. “A judicial officer should not be unduly sensitive and ought not to regard an application for his recusal as a personal affront. A judge whose recusal is sought should bear in mind that what is required, particularly in dealing with the application for recusal itself, is conspicuous impartiality. The Judge must ensure that justice is done. It is equally important that he should also ensure that justice is seen to be done. After all, it is a fundamental principle of our law and public policy. He should therefore so conduct the trial that his open mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome. The approach of our courts to an application for recusal has been set out in a number of cases and the principle which they seek to enshrine is that no reasonable man should, by reason of the situation or the action of a judicial officer, have grounds for suspecting that justice will not be administered in an impartial and unbiased manner. However the mere possibility of bias apparent to a layman would not be sufficient to warrant the recusal of a judicial officer.”
The sentiments shared by the learned Judge in the case cited above indicate the lengths that parties ought to go to sustain an application for recusal. However, in the said case the learned Judge granted the application for recusal on the strength of “Justice must be rooted in confidence” and it was the Judge’s perception that confidence in her had been destroyed by the various allegations – though not proved to be true – which were classified as baseless.
A reading of the case above, among other cases will highlight that in most instances, the grounds for recusal may include – either in singular or collectively – the following;
- Where the judicial officer is related to or is friendly with or hostile to either of the parties in the matter concerned.
- Where the judicial officer has an interest in the outcome of the case. The interest must be seen to have an influence in the judicial officer’s mind.
- Where there is a general suspicion of reasonable bias.
- Where the judicial officer’s personal feelings regarding the case, or any issue arising in the case, would make it impossible for him or her to act in an impartial manner.
- Where the judicial officer has made comments – non-judicial – which creates a reasonable impression that there will not be any fairness in adjudicating the matter.
There are many more grounds which can mount an application for recusal but the same must be sustainable at law.
If, a litigant opts for this route for whatever reason, it is always advisable to make such application at the commencement of trial or hearing. This is advisable for purposes of avoiding direct conflicts with the judicial officer and to avoid wasting time for litigants in the matter. If an application is made and upheld during or towards the end of the trial, the whole trial proceedings become void, and the trial is re-started – a trial de novo – this means resources would have been put to waste – including legal fees – for no apparent reason.
A more tactful approach would be to approach the judicial officer – with the other party – at the judicial officer’s chambers. A litigant must be mindful that not every application for recusal is granted and therefore it becomes important on how one addresses the issue to avoid any tension between the bench and the litigant in courtrooms.
In conclusion, a litigant has a right to seek recusal where the grounds for such permit. However, this process must not be abused because it generally involves prolonging the proceedings thereby delaying the justice of the matter. A failure by a judicial officer to recuse himself or herself when he or she ought to have done so is a ground for having the proceedings set aside on review.
Source: Zimbabwe Environmental Law Association