Conduct of a judicial officer during proceedings

19 May, 2023 - 00:05 0 Views
Conduct of a judicial officer during proceedings The man is also being charged with perjury

The ManicaPost

 

Trust Maanda
Post Correspondent

A JUDICIAL officer must be impartial.

 

He or she must facilitate the conducting of the proceedings before him or her in a manner that ensures enjoyment of the rights of the parties that appear before him or her to a free trial.

A presiding officer is like an umpire or a referee.

 

His or her role is to ensure that the players in the game play in accordance with the rules.

 

He or she should not descend into the arena by taking sides.

 

Once he or she does that, he or she loses objectivity and impartiality.

 

He or she would have taken sides with one of the contestants.

 

Apprehension of bias arises.

A judicial officer must create an environment in his or her court which is conducive to fairness, fair trial and justice, and must also not only but, be seen, to be upholding all the rights of parties that appear before him or her, especially of unrepresented accused persons. Justice must not only be done, it must be seen to be done.

In the case of Mukwemu v Magistrate Sanyatwe and another 2015 (2) ZLR 417 (H), a magistrate ordered the arrest of a legal practitioner while the legal practitioner was making submissions before him.

The legal practitioner’s offence was that he had requested for a postponement because his instructing senior who was responsible for conducting the defence of the accused in the matter was unavailable.

The magistrate ordered the trial to commence nevertheless.

 

On the next date to which the matter had been postponed for continuation of trial, the legal practitioner appeared again and applied that the decision to hear the matter without the legal practitioner of the accused’s choice should be referred to the Constitutional Court for determination of whether it infringed the right of the accused person to a fair trial and right to legal representation.

He also made an application for the recusal of the presiding magistrate on suspicion of bias.

 

While in the process of making the application, he must have angered the magistrate who dismissed the application and at the same time ordered the immediate arrest and detention of the legal practitioner for contempt of court.

 

The legal practitioner was handcuffed by a prison officer and detained.

 

He was released at lunch time.

After the arrest of the legal practitioner while discharging his duties in court, the magistrate was informed that the proceedings before him had been brought before the High Court on review.

 

He was asked to stop the criminal proceedings until the determination of the review application.

 

Quite predictably, the magistrate obstinately refused.

 

Instead, he directed the trial to resume on a certain day despite the fact that there was a pending review application.

The accused was forced to bring an urgent application in the High Court for a stay of the criminal proceedings before the magistrate who was going to proceed with the trial on the day after the High court would stay the proceedings.

 

In the review application, the accused argued that he had a reasonable apprehension that the magistrate was biased and that there was no way he could have a fair trial.

In ordering the arrest and detention of the legal practitioner the magistrate acted as the prosecutor, judge and executioner, there was no recourse to any other authority.

During the application for stay of proceedings before the High Court, the legal representative of the magistrate was of the view that the conduct of the magistrate was the first of its kind, rendering her unable to even begin to oppose the application for stay of proceedings.

The High Court was satisfied that all the requirements were met for a stay of the proceedings in the criminal court to allow the applicant to pursue the remedy of review.

Accused persons have a constitutional right to be represented by counsel of their choice in defence of criminal charges.

 

Ordering a legal practitioner to be dragged away from the bar, while conducting a defence reduces the legal proceedings into a farce and makes the rights of an accused person to an impartial hearing and to a fair trial illusory and elusive.

That conduct by the magistrate was clearly uncalled for.

 

The dispassionate manner in which a judicial officer is supposed to conduct proceedings was missing in that matter.

A judicial officer must guard against the excesses of power, and must not abuse his judicial authority to settle personal scores.

In terms of Section 50(9) of the Constitution of Zimbabwe, a judicial officer who causes arrest or detention of a person is liable to that person if he was not acting in that judicial capacity reasonably and in good faith.

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

 

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