In strong judgment, judge refuses 'sensitive' recusal application

7 October 2022 · Carmel Rickard

A major new decision from Malawi’s high court on the vexed question of judicial recusal has laid down the law on the subject. It included strong words against the Anti-Corruption Bureau’s legal strategy – bringing a recusal application based on no arguments at all, but only a suggestion that the matter surrounding the appeal application was ‘too sensitive’ even to give reasons. Judge Kenyatta Nyirenda, who wrote the decision, also spoke more widely and slammed dissatisfied litigants who threaten ‘physical violence’ against judges or ‘resort to dastardly and primitive schemes of staging road accidents’ intended to cause judges grievous harm, or even to ‘assassinate’ them.

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The author of this significant decision, high court judge Kenyatta Nyirenda, was dealing with an application brought by counsel for the Anti-Corruption Bureau (ACB), for his recusal from a corruption-related case involving Malawi’s former police boss, George Kainja.

In response to the application, Judge Nyirenda produced 11 grounds for refusing to recuse himself, and said the ACB’s request was based on no arguments at all.

The first part of the judgment summarises what had happened in the case before the recusal application was made, this still being an early stage with preliminary matters being dealt with.

Conflicted

Then, in a notice of motion filed on 15 September, the ACB, which is prosecuting Kainja, said it was bringing an application for the recusal of Judge Nyirenda ‘for being conflicted with the issues raised by the Claimant (i.e. Kainja)’.

Counsel for the ACB asked for the application to be heard in the judge’s chambers. According to the judge’s longhand notes of counsel’s argument in chambers, he said, in support of the recusal application, that ‘the information is sensitive’ and had to do with a corruption report related to UK-based businessman Zuneth Sattar. The ACB did not believe it correct to file a related application in writing. ‘The bureau deals with very sensitive information. This is why we have not filed it in writing’, and why the matter was being dealt with as an oral application instead.

Counsel for all the other parties said they had known nothing about the application.

Gross irregularities

In his written judgment on the application, Judge Nyirenda interrogated the applicable law closely and listed a total of 11 grounds why he should not recuse himself, saying the ‘gross procedural irregularities’ in the application made it ‘beyond redemption’.

As to the substance of the application, he said that a judge’s impartiality would be presumed, and that anyone claiming otherwise, through alleged conduct or misconduct, had to show in what way they alleged that the judge had shown bias.

Without that requirement – that some form of evidence be put up to indicate the lack of impartiality anticipated from or already shown by the judge – it would mean that ‘every time a litigant claims to see smoke then the court is bound to find there is a fire’.

Mere figment

A recusal motion must not be based ‘on a mere figment of imagination of an application’, and ‘cogent evidence’ had to be brought to show bias or anticipated bias.

However, in this case, counsel for the ACB ‘has not adduced even an iota of evidence in support’ of the recusal application. Counsel even ‘pleaded with the court to understand why [the ACB] could not be expected to give evidence in support’ of the recusal application. The reason given for the lack of evidence was that the ‘information was sensitive’.

Judge Nyirenda rejected the suggestion that reasons couldn’t be given because of the sensitivity of the matter. He said the recusal application was dealt with in chambers which meant the ACB was free to produce any evidence it had, ‘be it sensitive, secret, confidential or otherwise’.

Astonishing

‘I therefore find it totally astonishing that once in chambers [the ACB] turned around and said that no evidence would be adduced in support’ of its recusal application.

‘It is mind boggling’ that the ACB could expect the recusal application to succeed ‘when there is no evidence in support thereof’.

It was trite that an ‘unfounded apprehension of bias’ by a judicial officer could not form a justiciable basis for recusal, and this was yet another reason to dismiss the application.

Undermine

The judge commented that while a proper application of judicial recusal guarded the impartiality of the justice system, ‘any abuse or misapplication of the recusal rules would only serve to undermine the administration and delivery of justice.’

He said he was sitting in one other case involving the Sattar matter and he wondered why his recusal had not also been sought in that case, if he were indeed ‘conflicted’ as counsel claimed.

Counsel for the ACB had praised the judge highly for his handling of an earlier aspect of the case which had gone in favour of the ACB, so ‘where did things go wrong?’ Judge Nyirenda said he thought it was when he did not agree to adjourn the matter to the date requested by counsel, adding that this conduct might give credibility to claims that the ACB ‘does not graciously accept defeat in a legal tussle’.

Tarnish

Speaking more generally, Judge Nyirenda said he was concerned about the number and nature of recusal applications coming to the courts, and that some litigants seemed to think that recusal was simply one of the tools they could use to further their case.

Another problem, flowing from such an approach by litigants was that recusal applications could tarnish the reputation of the judge concerned as well as causing ‘psychological, mental and emotional pain’ regardless of whether the recusal application succeeds or not.

Dastardly

He then concluded with an extraordinary last section that gives some inkling of the pressures that judges face.

This section was aimed at providing ‘civic education’ for litigants and all Malawians, said Judge Nyirenda. He stressed that the high court, despite its powers, was not the last word on judicial matters. Anyone dissatisfied by the outcome of a matter, could appeal.

This meant there was no justification for anyone, unhappy with the outcome of a matter to ‘issue threats of physical violence against high court judges or indeed to resort to dastardly and primitive schemes of staging road accidents of judges with a view to causing them grievous harm and/or, God forbid, assassinating (the word is used advisedly) them.’

Counsel for the ACB said they were considering whether to appeal the decision.

Carmel Rickard

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