Johannes Tomana v Judicial Service Commission and The Minister of Justice, Legal and Parliamentary Affairs

The applicant, Johannes Tomana, was the Prosecutor General of Zimbabwe. On 11 February 2016, the Judicial Service Commission (first respondent) initiated a process for his possible removal from office following a Constitutional Court judgment in CCZ 28/15 and a High Court judgment by Mathonsi J in HH 845/15. The Constitutional Court had found issues regarding contempt of court and the constitutional independence of the Prosecutor General's office. On 25 February 2016, a citizen, Rooney Kanyama, filed a Constitutional Court application challenging the validity of the Constitutional Court order. On the same day, the applicant filed an urgent chamber application seeking an interim stay of the removal process and a declaratur that the process was a nullity. He challenged the validity of both judgments relied upon by the JSC. Subsequently, the applicant filed a chamber application seeking referral to the Constitutional Court on the question of whether he could receive a fair hearing before any presently sitting High Court judge, effectively seeking the recusal of all sitting High Court judges on grounds of perceived bias due to their subordination to the Chief Justice, who was also Chairman of the JSC initiating the removal process.

• Whether a request for referral to the Constitutional Court under section 175(4) of the Constitution must be made by formal application or can be made orally
• What constitutes a 'constitutional matter' as defined in section 332 of the Constitution
• Whether evidence must be led to support a request for referral to the Constitutional Court
• Whether the constitutional question raised by the applicant arose from the urgent chamber application
• Whether the request for referral was frivolous or vexatious
• Whether all sitting High Court judges should be recused due to their subordinate relationship to the Chief Justice
• The test for reasonable apprehension of bias in judicial proceedings
• Whether judicial independence and constitutional protections overcome structural hierarchies in determining judicial impartiality

The application was dismissed. There was no order as to costs, as the respondents had not opposed the order sought by the applicant.

A request for referral of a constitutional matter to the Constitutional Court under section 175(4) must be supported by evidence (either affidavit or oral testimony) and not merely submissions from the bar, to enable the court to make findings of fact. A constitutional question can only be referred to the Constitutional Court if its determination is necessary to decide the relief sought in the pending proceedings; otherwise the court would be seeking an academic opinion, which is not a proper exercise of discretion. The test for judicial bias is objective: whether a reasonable, objective, and informed person would apprehend that the judge would not bring an impartial mind to the adjudication. The mere fact that High Court judges are structurally subordinate to the Chief Justice does not create a reasonable apprehension of bias, given constitutional protections of judicial independence under section 164(1), the judicial oath to administer justice without fear or favour, and the assumption that judges can disabuse their minds of irrelevant considerations. A request for wholesale recusal of all sitting judges based solely on hierarchical structure, without evidence of actual bias or reasonable apprehension thereof, is frivolous as it is manifestly groundless and without foundation.

The court observed that the applicant, as a legal practitioner of standing and former government legal adviser, should understand that cases are decided according to law and evidence, not external factors, and that judges exercise independence similar to the constitutional independence of the Prosecutor General's office. The court noted that if the reasoning about subordination creating bias were accepted, it would be absurd, as the President appoints all judges yet cases for and against the President are regularly decided impartially. The court also commented that when grounds for recusal are reasonable, it is counsel's duty to advance them without fear, and judges should not be unduly sensitive or regard recusal applications as personal affronts. The court distinguished between the Chief Justice's judicial functions and administrative functions as head of the JSC, noting that administrative decisions can be reviewed by any judge in the ordinary way.

This case provides important guidance on the procedure for referring constitutional matters to the Constitutional Court under section 175(4) of the Zimbabwean Constitution. It clarifies that: (1) requests for referral, whether written or oral, must be supported by evidence and not merely submissions from the bar; (2) a constitutional question can only be referred if its determination is necessary to decide the relief sought in the pending proceedings, otherwise it amounts to seeking an academic opinion; (3) the definition of 'constitutional matter' in section 332 is broad and includes interpretation, protection, and enforcement of the Constitution, not limited to alleged violations of fundamental rights; (4) the test for judicial bias is objective and requires more than mere hierarchical relationships between judges; and (5) judicial independence as constitutionally enshrined overcomes structural subordination in the judiciary. The judgment reinforces the presumption of judicial impartiality and the high threshold required to establish bias based on institutional structures alone.