Judges have a duty to hear cases that come before them, and so decisions to stand down and refuse to hear a matter should only be made on very serious grounds. What then, is the public to make of the decision by a judge of the high court, Eswatini, to recuse himself from a sensational murder trial, half way through the case, on the grounds that some of his family and friends have or had close links with a soccer club whose fortunes might perhaps somehow be implicated in the killing? The judge himself, as he strongly reiterated, has no affiliation to any soccer club’s fan base, and recognizes that the links for which he stood down are “indirect”. Just as troubling: why did the prosecution not appeal the recusal decision; and why did the Chief Justice appoint another judge to pick up the trial, mid-way, instead of starting afresh?
Month after month, alarming stories and judgments emerge from African jurisdictions about what appear to be inappropriate – sometimes seriously inappropriate – decisions on recusal. Too often it seems clear, on the papers and to outsiders, that judges do not recuse themselves when they should; other times that they recuse themselves without proper reason.
The last few weeks have been no exception, with several judgments that should set off alarm bells, including one from Eswatini.
To the apparent surprise of all in court on 3 June, 2019 Judge Mbutfo Mamba, an experienced and respected jurist, who was hearing a murder trial in the case of Rex v Shongwe, announced that he would be standing down from the matter.
From the start, this trial in the high court, Eswatini, has been sensational. On the one hand it involved politically well-connected tycoon, Victor Gamedze, shot in the head at a petrol station last year. Said to be a close associate of Eswatini's King Mswati III, Gamedze was a sports administrator and something of a soccer fanatic.
Charged with murdering Gamedze is a second high-profile businessman, Sipho Shongwe, who allegedly organized three hitmen to carry out the shooting.
Local media report that more than 10 witnesses have already given evidence in the trial with many more to come. On that Monday, the courtroom was packed to hear evidence from the next witnesses, but instead they heard Judge Mamba make a shock announcement: he was standing down from the trial.
In the second paragraph of his official ruling on his decision to recuse himself, he refers, rather mysteriously, to the fact that “very little information” had been given in the evidence summary about the supposed motive for the murder. Though he made no findings on this question, from the witnesses heard so far, “the name of Mbabane Swallows Football Club” of which Gamedze was a director, “features prominently”.
In the next paragraph he gives the background to why he decided to recuse himself.
He says that when he joined the office of the Director of Public Prosecutions in the early 1980s, “his boss” was an ardent follower of Manzini Wanderers, the deputy was an “active fanatic” of Mbabane Swallows while an office mate was just as fervent about Mbabane Highlanders.
At the start of each week, conversation between these three would centre on the weekend’s matches. When he took no part in these discussions his boss asked him which was his (Judge Mamba’s) favourite team, to which he replied that he had no favourite, adding, in his recusal ruling: “and I truly meant it”.
“This is still true even today. I am not affiliated to any football team in the country. But that cannot be said of some of my closest relatives, friends and acquaintances with whom I interact on a friendly and daily basis in private and public life.”
“Some of them are former office bearers of Mbabane Swallows … whilst the rest are mere supporters or fans of the team.”
Against this background, he restates various legal principles, starting with the need for equality before the law, and that every accused must be given “fair and speedy hearing by an independent and impartial court."
“That is what justice demands and that is the oath every judge takes upon ascending to the bench – to do justice to all manner of persons without fear, favour or prejudice. This is a constitutional imperative. … But justice must not just only be done. It must be manifestly seen to be done.”
Given all this, and his oath of office, he said he had, “after much thought and reflection” concluded that “the ordinary reasonable and informed man out there would reasonably hold the view that because of my link or association, indirect as it is, described above, with Mbabane Swallows Football Club, I cannot reasonably be expected to bring an honest and impartial mind to bear on these proceedings.”
In his view such a perception would be “fair and reasonable in the circumstances” and so for him to continue with the trial would not be just for the accused or the administration of justice. “It would amount to an injustice or a mistrial and I cannot allow myself to do that. Consequently, I recuse myself from hearing this case any further” and the case had to be heard by another judge.
In his final paragraphs he “records” that no one has suggested he should recuse himself, that his decision was reached “independently” and that he is “fully aware of my duty to sit and hear cases” in accordance with his oath of office. “Lastly, I fully recognize the fact that this ruling shall cause or result in a delay … in the conclusion of this case. This ruling is, however, the better of two evils as a mistrial would be a complete failure of justice.”
Apparently without missing a beat, the Chief Justice immediately allocated the matter to another judge, Nkosinathi Maseko, to continue with the trial.
For outsiders, Judge Mambo’s ruling just doesn’t make sense. In fact, it has to be the weakest explanation for a formally-justified recusal that I have ever read.
His stated reasons amount to no more this: he is not a fan of any particular football club, but some of his family and friends have or had strong affiliations with the club of which the deceased was a director, and some of these family and friends were actually office bearers of the club.
After I heard what transpired in court, with the judge standing down, I was convinced that the prosecution would appeal, but this has not happened. Almost more alarming, Judge Maseko is now to pick up where the old one left off, mid-trial, rather than starting from the beginning.
There are two main problems here as I see it. First, unchallenged, Judge Mamba’s standard for when recusal is appropriate sets a precedent, one that considerably lowers the test for when a judge should stand down. The fact that the prosecution did not appeal is most disappointing and is likely to contribute to confusion about when recusal is appropriate, not just in Eswatini but elsewhere as well.
Second, the fact that another judge is apparently to “pick up the case”, almost half way through and after a number of witnesses have testified, instead of starting from the beginnng, leaves the way open for an appeal if the accused is convicted. You can easily imagine argument in such an appeal: the (second) trial judge did not see for himself the demeanour of witnesses, or satisfy himself as to the accuracy of their memory and so on.
Altogether, this must be one of the most extraordinary judgments to come out of the Eswathini - and that is really saying something.