State responds to Sikhala application
HARARE magistrate Mrs Tafadzwa Miti’s ruling in dismissing Job Sikhala’s bail application on changed circumstances wherein he is accused of inciting public violence in Nyatsime has no bearing on the outcome of the trial, the State has said.
The State led by Mr George Manokore said this in response to Job Sikhala’s application for recusal of the magistrate presiding over the case.
Sikhala is charged with incitement to commit public violence.
In his application seeking recusal of Mrs Miti from presiding over the matter, Sikhala claimed the magistrate had already pronounced herself on the merits of the trial before his hearing.
Sikhala claimed that Mrs Miti has already taken a position on his conduct and concluded that he had incited violence in Nyatsime.
He argued that he will not receive a fair trial before Mrs Miti.
In its response, the State said: “In casu, the applicant feels that the court has shown through its bail ruling that it has already convicted the applicant. However, that was a bail process which has no bearing on the outcome of the trial.
“The applicant is worried that the court held that the accused confirmed that there is now calmness in Nyatsime because the accused is in custody. The accused actually confirmed that and cited that as a change in circumstances.
“Such confirmations are allowed in the bail process under $117A (6) of the Criminal Procedure and evidence Act (Chapter 9:07).
“So, if accused made such confirmations then the court could not ignore such averments or assertions. The court’s ruling as alluded to above is concerned with facts raised during buil application. The court should not ignore such facts since they were raised by the accused himself. That in our view does not show any bias on the person of the court.”
Mr Manokore said there was no reasonable apprehension of bias that can be deduced from the court’s bail ruling.
He also said that Sikhala wanted to abuse the court processes by applying for the recusal of the magistrate.
“For an application of this nature to succeed, the accused person needs to prove on a balance of probabilities that a ground for the recusal of the trial magistrate exists,” said Mr Manokore. “He has in his submissions failed to establish any ground for the recusal of the trial magistrate.”
The State said legal practitioners should not just make applications for the sake of undertaking instructions, but should apply their minds and advise clients accordingly.
“It is not proper for court officials to just make applications because they have been instructed to do so, they need to apply their legal mind and advise their clients,” he said.