Magistrate Chirwa  refuses to recuse himself in Bushiri extradition case, says won’t be biased

Magistrate Patrick Chirwa has refused to recuse himself from the case in which South African government wants Prophet Bushiri and wife, Mary, be extradited back to South Africa.

Bushiri’s lawyer, Wapona Kita, raised two  arguments explaining why magistrate Chirwa should recuse himslef.

Kita said Bushiri and wife first appeared on 19 November 2020, and matter assigned to Viva Nyimba and a ruling was given that they be unconditionally released and they appear for extradition hearing via summons.

He  noted that the state approached the High Court for review, asking that they be remanded in prison. On objection, the state withdrew their application for review.

“Then the state approached court on 5th of January 2021 and another warrant of arrest was issued. They appeared in court on the 6th and an agreement reached between the state & defence that a warrant be issued but in accordance with earlier ruling – a warrant would then be issued but not executed,” he said.

Kita further said the warrant states that, “it was agreed that they should be summoned” but however the 19th of February another warrant of arrest was issued, going against the previous two orders and warrants.

“When the state approached the court on the 19th, the current magistrate was not seized with the matter. Another magistrate was.

“There are already two standing orders, by a magistrate of the same rank. This new warrant of arrest has an effect of reversing decisions made by another magistrate in the same court. There is no law or precedence that allows this to happen,” he said.

Bushiri’s lawyer further argued that the State requested that “to maintain diplomatic ties with South Africa” the case was to be moved from Viva Nyimba to another magistrate. He adds that the defence was neither copied nor alerted of this.

“Conceding to such a move upon hearing one side of the story and issuing a warrant of arrest which goes against two earlier decisions goes against principles of impartiality and gives rise to suspicions of bias,” he said.

He noted that the warrant of arrest was issued illegally against earlier decisions.

“The court transferred the matter at the request of the state without following procedure and for reasons which are not impartial. For these reasons there is a likelihood of bias,” he said.

Kita, then, argues that he is not asking that the case be transferred back to Magistrate Nyimba but that the case go back to its position before the State transferred the case irregularily.

The State, on the other hand, has argued Kita’s argument are based on perceptions and perceptions will always remain like that.

He has since asked for the recusal to be dismissed. The application are only desperate attempts.

In his ruling, Chirwa said arguments raised by Kita are pertinent but not enough to raise suspicion of bias.