The ManicaPost
Trust Maanda
Post Correspondent
IN terms of Section 69 of the Constitution, every person has a right to fair trial in the adjudication of his or her civil or criminal matter.
Section 69 of the Constitution reads:
“(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court
(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law.”
The right to administrative justice is also protected in the Constitution.
Section 68 (1) of the Constitution of Zimbabwe also provides for a just administrative conduct that is, among other things, impartial.
It provides that: “Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”
One of the requirements of a fair trial or hearing is that the presiding officer must not be biased.
Justice must not only be done, but it must be seen to be done.
The presiding officer must be impartial.
Impartiality requires a mind open to persuasion by the evidence and the submissions of the parties or their legal representatives, without pre-conceived ideas.
Where there is a reasonable apprehension of bias, the presiding officer must recuse himself or herself.
The presiding officer may be a friend or a relative to the accused or one of the parties to the dispute.
The presiding officer must not have any interest in the matter.
Justice will not be seen to be done by a complainant who thinks that the presiding officer is related to the accused or has an interest in the matter if they were not to recuse themself.
He or she must not have prior knowledge of the facts of the case or the antecedents of the parties as this would influence his or her mind at the trial.
A reasonable person might entertain a reasonable apprehension of bias by reason of pre-judgment if a judge sits to hear a case after he or she has, in a previous case, expressed clear views about a question of fact which constitutes a significant issue in the subsequent case.
The grounds of suspicion of bias have to be objective.
There should be a real likelihood of bias.
In considering existence of a real likelihood of bias, the court does not look at the mind of the presiding officer.
The court looks at the impression which would be given to other people.
Even if the presiding officer was unbiased, if right minded persons would think that, in the circumstances, there was a real likelihood of bias, then he or she should not preside over the matter.
This is because justice must not only be done, but must be seen to be done.
There must, however, appear to be a real likelihood of bias.
Often times judicial officers are faced with allegations of bias, some justified but in most cases such claims by parties, litigants or accused persons are not based on any facts.
Surmise or conjecture is not enough.
The mere possibility of bias apparent to a layman would not be sufficient to warrant the recusal of a judicial officer.
Circumstances must exist from which a reasonable person would think it likely or probable that the presiding officer would, or did, favour one side unfairly and disfavoured the other.
The court will not enquire whether he or she did, or would in fact, favour one side unfairly. Justice must be rooted in public confidence.
Sometimes bias may be raised by a party to the proceedings or by a third party who may perceive the presiding officer as biased due to his or her relationship with the accused or party appearing before him or her.
For example, an interested person may be a third party who is a complainant in the criminal matter.
If a complaint is raised, the presiding officer should reconsider the propriety of his presiding over the matter.
Where bias is perceived on objective grounds, a person may apply for the recusal or removal of the presiding officer from the case.
A judicial officer should not regard an application for his or her recusal as a personal attack.
It is part of the processes permitted by law.
On the one hand, objections to the presiding officers should be discouraged.
It is vital to the integrity of the judiciary and its independence that ill-founded objections be not raised.
On the other hand, the court should not ignore objections that have substance.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
