The State v Lawrence Kanyera and Charles Mhako

Two accused persons were charged with seven counts of assault under s 89(1)(a) of the Criminal Law Codification and Reform Act. The trial commenced on 27 September 2018 before one magistrate, who recorded not guilty pleas. On 2 October 2018, the case continued before a different magistrate (Magistrate Makati), who irregularly recorded pleas again. During the trial, the 2nd accused filed a written complaint with the Judicial Service Commission alleging the magistrate had a personal interest in the case due to family and social connections. The magistrate had concurrently convicted the 2nd accused in a separate but related case of malicious injury to property (SHM 851/18). On 24 October 2018, the accused, now represented by a legal practitioner, applied for the magistrate's recusal on grounds she would be biased given her adverse comments on the 2nd accused's character in the related conviction. The magistrate delivered a ruling expressing displeasure with what she termed false allegations against her reputation, made statements about being "only a woman distinct from a man", and purported to recuse herself while referring the record to a High Court judge for review and determination of whether the recusal should be granted.

• Whether a magistrate can apply for her own recusal to the High Court on review
• Whether the proper procedure was followed when the magistrate referred the matter for review
• Whether the magistrate's conduct in dealing with the recusal application was proper and consistent with judicial standards
• Whether the trial proceedings should be set aside given the magistrate's recusal
• Whether the irregular re-recording of pleas vitiated the proceedings

1. The proceedings against the accused persons in case no SHM 861-2/18 are hereby set aside in consequence of the recusal by the presiding magistrate. 2. In the event that the Prosecutor General decides to prosecute the accused persons afresh, such prosecution shall be done before a different magistrate de novo.

A judicial officer does not apply for his or her own recusal to a higher court. Where a judicial officer decides to recuse himself or herself, that decision is made by the judicial officer in the exercise of judicial discretion. At best, after making such a decision, the judicial officer may forward the record to a judge on review with a request that the proceedings be set aside and directions given for future conduct of the case. When dealing with recusal applications, judicial officers must remain dispassionate and avoid allowing emotion to influence their decisions, even when faced with allegations they consider false or reputation-damaging. Where a magistrate has developed a negative mindset towards an accused and labeled them a liar based on complaints made against the magistrate, the trial has become poisoned and the proceedings should be set aside to ensure fair trial rights under the Constitution are protected.

The court made important observations about the demands of judicial office: judicial work is emotionally draining and requires officers to remain rational, impartial and not swayed by extraneous considerations. Allegations of impropriety, bias and corruption are to be expected as litigants safeguard their rights, and the judicial officer becomes the center of focus and mistrust. Judicial officers must find solace in their oath to administer justice without fear, favour or prejudice. The court specifically addressed gender equality, stating that the judicial office is gender-blind in the exercise of jurisdiction, and that female magistrates have the same powers as their male colleagues of similar rank and should never feel inferior by virtue of gender. The court also noted that the ground raised for recusal (bias arising from concurrent conviction in a related case with adverse credibility findings) was not frivolous or vexatious and deserved proper consideration rather than being glossed over.

This case is significant in Zimbabwean criminal procedure and judicial ethics for several reasons: (1) It clarifies the proper procedure for judicial recusal - judicial officers do not "apply" for their own recusal to higher courts; they either grant recusal applications or recuse themselves and may refer the record for review; (2) It emphasizes the importance of judicial officers remaining dispassionate and not allowing emotion to cloud their judgment, even when faced with criticism or allegations of impropriety; (3) It reinforces gender equality in the judicial office, making clear that gender plays no role in the exercise of judicial authority; (4) It demonstrates the court's commitment to fair trial rights under s 69 of the Constitution, requiring that proceedings be set aside when a magistrate has developed a demonstrable bias or negative mindset towards an accused; (5) It provides guidance on when concurrent trials involving the same accused may give rise to reasonable apprehensions of bias.