BY ALEX MAGAISA
Concerns about the state of the justice delivery system in Zimbabwe became apparent last week when Hopewell Chin’ono and Jacob Ngarivhume were finally released on bail at the fourth time of asking.
They won their second appeals to the High Court.
The judges, who delivered the judgements in separate cases, held that the magistrates had misdirected themselves both on the law and facts.
The common finding in both cases was that the magistrates had erred in failing to recognise and take into account the fact that July 31, the date when the demonstrations were scheduled, had come and gone and that this was a changed circumstance.
In order to be considered for bail at the second application, the accused persons were required to demonstrate that there were new facts that had arisen following the first bail application, which had been rejected.
Lawyers for both accused men had argued that the fact that July 31 had passed without incident was a changed circumstance.
After all, the first bail applications had been rejected on the basis that there was a real risk that the two men would persist with their call for demonstrations to remove the government on July 31.
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Now that the date had passed, there was no longer a reason to keep them in custody.
The state had opposed the fresh bail applications and argued that the passage of the July 31 date was no longer relevant because there was now a July 31 Movement, which the two men could still lead.
However, no evidence was led to support this claim.
One of the judges described it as based on conjecture.
Both judges set aside the rulings of the magistrates, holding that they were misdirected in failing to recognise that this was a changed circumstance.
Now, it is possible for judicial officers to err in their interpretation of the law and facts.
This is why there is a facility for appeals to a higher court if a litigant is not satisfied with a judgement.
Nevertheless, a judicial officer is required by the constitution to “respect and honour their judicial office as a public trust and must strive to enhance their independence in order to maintain public confidence in the judicial system” (section 165(2)).
A judicial officer must apply the law “impartially, expeditiously and without fear, favour or prejudice” (section 164(1)).
In addition, judicial officers have a duty to protect human rights and freedoms and the rule of law (section 165(1)(c.)).
There must be no bias, malice or bad faith in the process of judicial decision-making.
Another constitutional principle is that “justice must not be delayed, and to that end members of the judiciary must perform their judicial duties efficiently and with reasonable promptness” (section 165165(1)(b)).
These are the standards by which the conduct of the judicial officers who handled the bail applications of Chin’ono and Ngarivhume must be measured.
Of particular interest here is the conduct of Harare magistrate Ngoni Nduna in the case of Chin’ono.
Justice Tawanda Chitapi found that he had committed a “serious misdirection” because he failed to deal with evidence that was presented to him concerning the accused’s health in light of the terrible prison conditions.
The magistrate had granted an application by the state to clear the courtroom so that Chin’ono’s evidence would be heard in camera (in private).
Chin’ono had given this evidence, but the magistrate simply ignored it and instead made a false finding that no evidence had been given.
This was false and malicious. As Justice Chitapi stated in his judgement, “The learned magistrate commented that the applicant had capitulated because his intended audience had been cleared from the courtroom.
“In reasoning so, the magistrate was misdirected because the appellant in fact gave evidence.
“It is trite that a judicial officer commits a serious misdirection, which vitiates the judgement reached where the judicial officer omits to deal with evidence led and proceeds to give judgements oblivious of such evidence.
“In this case, it was worse because the learned magistrate actually mentioned that there was no evidence led, yet there was.”
This paragraph from the judgement is a serious indictment concerning Nduna’s conduct as a judicial officer.
The judge is right that he committed a serious misdirection.
The magistrate’s omission of Chin’ono’s evidence could not have been accidental.
It can’t have been a mere mistake because he actually falsely stated that there was no evidence when, as the judges stated, that evidence was available. The magistrate knew what he was doing.
The essence of the judge’s comments is that the magistrate deliberately omitted or falsified evidence led by Chin’ono.
This is highly improper conduct by a judicial officer.
The same magistrate had in a previous judgement removed Chin’ono’s lead counsel, Beatrice Mtetwa, holding her responsible for comments which were posted on Facebook.
He also ordered that a copy of his judgement should be placed before the Law Society of Zimbabwe, the idea being that the regulatory body should consider taking action against her for misconduct.
Justice Chitapi had also made comments against Mtetwa in an earlier appeal to the first bail application.
Although the judge found that the magistrate had falsified evidence given by an accused, he did not make any further comments concerning the magistrate’s highly objectionable conduct.
For its part, the Judicial Service Commission (JSC) should look into the conduct of the magistrate because his conduct is an embarrassment to the judiciary and the administration of justice.
After the way he had handled the case, he lost objectivity and made it personal.
Otherwise how does a fair-minded and impartial judicial officer claim that no evidence was given when it was clearly presented before him?
The best course of action in that matter would have been for Nduna to have recused himself and let another magistrate handle the matter.
It is because he had become too involved and too interested as a party in the proceedings that he ended up deliberately omitting evidence which was on the record.
If the JSC does not call out such misconduct, it will encourage bad behaviour, which embarrasses the judiciary.
l This is an extract from Alex Magaisa’s latest posting on the Big Saturday Read blog
