The contentious matter of recusal has emerged again. This time it takes the form of what could well be a deliberate attempt to force a judge to stand down from a controversial matter she has been hearing.
Judge Fiona Mwale of Malawi’s high court, was presiding in a criminal case where the accused is Mohamed Shahin Mahomed Iqbar Juma. In a judgment on recusal, delivered last week, she noted that Juma is accused of having caused the death of his wife, Zaheera Juma, ‘with malice aforethought’, during December 2019.
Juma pleaded not guilty and has tried repeatedly to persuade the court to allow him out on bail, so far with no success. In July 2020 the court found he had a case to answer. Juma’s lawyers have since asked the court to reconsider that decision, but that application was dismissed.
The trial is now at the stage in which Juma is explaining his defence to the charge.
Then came a bombshell, as Judge Mwale explained in her decision: ‘Today, on 15 April 2021, during the defendant’s testimony in his defence, he testified to the effect that his father-in-law, Jamal Akbanie, [in other words, the father of Juma’s deceased wife] broadcast on a family social media group (WhatsApp) with membership within and beyond Malawi, on Wednesday 9 June (presumably 2020), amongst other issues, that the Khatrii community had organised between K20 000 000 and K25 000 000 to bribe the judge in the matter.
‘It was a rallying call for members of his community to turn up at the court in solidarity against the release of the accused. An audio recording of the said Jamal Akbanie making this broadcast was played in court.’
Judge Mwale needed to reach a swift decision about her response and she did so with a written decision issued the same day. In her ruling, she said that she was a judicial officer who had sworn to uphold the law and protect the constitution. She had therefore ‘to abide by the sacred principle that “justice must not only be done, it must also be seen as being done”.’
The bribery accusation, though untrue, was now in the public domain, she noted. ‘Any credible action taken in response to the accusation by the authorities (should the need arise) cannot proceed while I am handling the matter.’
‘After careful reflection, with the utmost regret in view of the advanced stage to which this matter has progressed, I have decided to recuse myself.
‘My recusal shall pave the way for justice to be seen as being done, with the case being presided over by a judicial officer who has no cloud of wrongful allegations hanging over his or her head.’
However, she stressed, she reserved the right, ‘as an aggrieved person’ to protect her reputation through the civil courts. She then adjourned the case for it to be continued after the matter has been reallocated to another judge.
The question of when recusal would be appropriate is becoming something of an elephant in the courtrooms of the region. There have been cases where an allegation of the kind made in the Juma matter was brought specifically to ensure that a judge, seen as unfriendly to one side or the other, was forced to step away so that a different judge had to take on the matter.
There have also been cases where it would have seemed highly appropriate for the judge to stand down, but he or she has not done so.
- Judge Mwale has won a number of awards for her work on the bench, including being honoured as ‘judge of the year’ for 2020 by Women Lawyers Malawi. In particular, she is seen as someone deeply concerned about violence against women and children.