MDC recalls case: Judge refuses to recuse himself



Tarisai Machakaire


Chalton Hwende, Prosper Mutseyami, Thabita Khumalo and Lilian Timvous had argued that Kwenda had already presided over a matter involving other MDC Alliance legislators and wanted a different judge allocated to their cases.

However, Kwenda said he was not interested in the cause or outcome of their case and ruled that there was no sound basis for his recusal.

“Undoubtedly, the applicants had adopted a wrong procedure to remove me from their cases.

“Their conduct could easily be mistaken for forum shopping because the decision to recuse oneself from a case is left to the judge seized with the matter as a judicial function,” ruled Kwenda.

“The judge president does not consult litigants before allocating a matter to a judge or a panel of judges and parties should not have any input in keeping with the spirit of the right to fair adjudication of disputes by an independent and impartial tribunal.

“Once a matter is allocated, the judge president does not get involved further in the interests of observing the independence of the individual judge unless an administrative issue arises.”

In the respective matters before Kwenda, the legislators have cited Speaker of Parliament Jacob Mudenda, MDC secretary-general Douglas Mwonzora, party acting president Thokozani Khupe and the MDC party as respondents and seek to have their recalls nullified.

They were expelled from Parliament on May 5 after the Khupe-led group had communicated that they were no longer members of their party and would no longer be representing them.

This prompted the MDC Alliance legislators to challenge the recalls in the High Court, but were not impressed when the matter fell into Kwenda’s court.

A BID to have High Court judge Justice Pisirai Kwenda recused from handling matters in which some MDC Alliance legislators are challenging their recalls from Parliament hit a snag after the application was thrown out.

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