High Court Judge Kenyatta Nyirenda Monday dismissed, with costs, an application by the Anti- Corruption Bureau (ACB) asking him to recuse himself from a case in which Malawi Police Service former inspector general George Kainja is challenging his arrest.
The ACB had applied that Nyirenda recuse himself from the case, claiming that the information involved was sensitive as it had to do with the Zuneth Sattar Report.
But, in his 28-page ruling delivered in chambers, Nyirenda has given 11 reasons why he cannot recuse himself in the matter.
Among other grounds, Nyirenda said the ACB failed to cite any law under which the application for recusal was brought.
Nyirenda said although the ACB had, in an open court, claimed that the matter was sensitive, the graft-busting body failed to produce supporting evidence when the case was moved to his chambers.
Nyirenda said an application for recusal of a judge has a real potential of not only tarnishing the reputation of the judge concerned, but also causing psychological, mental and emotional pain because judges are humans too.
“It is, therefore, imperative that a party thinking of making application for recusal of a judge must not bring it unless he or she is definite that there are good grounds for doing so and, more importantly, he or she has legally relevant facts to prove the allegations to the high standard of proof set by the law.
“The practice of making unsubstantiated allegations of bias must be left to Luhangas and Longwes of this world and people of their ilk,” he said.
Kainja was arrested on June 23 this year for allegedly receiving a bribe from businessperson Sattar to influence a procurement contract of 350,000 police food rations.
The former police boss then applied for a judicial review challenging ACB’s decision to arrest him based on information obtained from a foreign body, the British National Crime Agency.
Nyirenda said failure by the ACB to cite the provision under which the application for recusal has been made is fatal.
“This is the first ground why the application for recusal has been dismissed,” he said.
In his ruling, he has also sent out a message “in the form of civic education” to litigants and all Malawians generally that as much as the High Court is vested with vast powers, it is not the final arbiter on judicial matters, but the Supreme Court of Appeal.
He, therefore, said a party that is not satisfied by a decision of the High Court is fully entitled to appeal to the Supreme Court of Appeal against the decision of the High Court.
“There is, therefore, to my mind, no justification whatsoever for a person who is dissatisfied with a decision of the High Court 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,” the judgement reads.
Apart from the ACB director being the first defendant, the Director of Public Prosecution and the Attorney General are the second and third defendants.
President Lazarus Chakwera fired Kainja on June 23 2022 after his name was allegedly mentioned in Sattar’s corruption report.
ACB lawyer Imran Saidi said the case would proceed but the bureau would decide whether to appeal Nyirenda’s application or not.
Lawyer for Kainja, Gift Nankhuni, said: “It means we still have the judge as a judge on the matter.”
Mathews Kasanda is a journalist who holds a Bachelor of Arts in Journalism from University of Malawi (The Polytechnic).
In 2015, Media Institute of Southern Africa awarded him the Best Print Media Education Journalist of the Year accolade.
He joined Times Group Newsroom in September 2019.