High Court Judge Kenyatta Nyirenda throws out ACB Director application for recusal

High Court Judge Kenyatta Nyirenda on Monday threw out an application for recusal by the Anti-Corruption Bureau (ACB) Director General Martha Chizuma from corruption proceedings against former Police Inspector General Dr. George Kainja.

Nyirenda has described the ACB application as seriously flawed beyond redemption and based on the mere figment of imagination of Chizuma.

He cited eleven reasons warranting the application to dismissed based on both procedural and factual shortfalls.

Kainja is currently in court answering charges on his involvement with Sattar in which the former Police boss is accused of receiving a Scania truck and money to influence award of contract to the businessman.

In his ruling, Justice Nyirenda faulted the ACB for not substantiating the claims against the Judge and failing to provide adequate information on the accusations raised.

He said Chizuma and her team failed to make a compelling case for the recusal. The application has been dismissed with costs on the ACB.

Among other issues, the learned judge noted that the application lacked citation of law, did not meet some standard legal requirement such a signature and seal from the Registrar of the High Court, the application was not filed in time as required by the court procedures and that the application was not accompanied by skeleton arguments.

“To make matters worse, Counsel for the 1st Defendant (ACB) made no reference at all to any authority, case law or otherwise, in support of the Application for Recusal. As a result of these omissions, the Court still entertains serious doubts as to whether the Application for Recusal is properly grounded,” said Judge Nyirenda.

He added: “The Application for Recusal is seriously flawed – it has not been competently brought in so far as procedure is concerned. Looking at the serious nature and the many and varied irregularities I am not persuaded that the irregularities are curable. The fact of the matter is that the Application for Recusal is beyond redemption.”

On the substance, Judge Nyirenda said the ACB failed to prove conduct or misconduct of the judge that would prevent the judge from acting with impartiality.

“In short, a party alleging partiality on the part of a judge must prove such allegation by cogent evidence. This position of the law makes a lot of sense because it cannot be, per the dictum that every time a litigant claim to see smoke then the court is bound to find that there is a fire.

“At a minimum, a person seeking recusal of a judge must lead cogent evidence to substantiate his or her allegation of biasness on the part of the judge. In the present case, the 1st Defendant has not adduced even an iota of evidence in support of the Application for Recusal.”

Justice Nyirenda expressed surprise that the ACB insisted not to divulge full details of the allegations despite the court granting it the request to have the case heard in Chambers.

“I find it totally astonishing that once in chambers the 1st Defendant (ACB) turned around and said that no evidence would be adduced in support of the Application for Recusal. It is mind boggling how the 1st Defendant (ACB) expects the Application for Recusal to succeed when there is no evidence in support thereof,” said Judge Nyirenda.

He also expressed surprise that this was the only case he has been asked to recuse himself yet he has another case involving the same Sattar.

“I would have thought, in my not-so-fanciful thinking, that if indeed I am conflicted as alleged by the 1st Defendant (ACB), my recusal would also have been sought in Civil Cause No. 64 of 2022. The fact that no application for my recusal has been made in that case raises a key question, that is, why is my recusal being sought in the present case?,” said Justice Nyirenda.

He added: “It is significant to remember that the 1st Defendant (ACB) highly praised my handling of the application without notice for permission to commence judicial review proceedings against the Defendants and a stay of the challenged decision. Where did things go wrong? My worry is that this kind of conduct by the 1st Defendant (ACB) might unwittingly give credence to the claims that the  1st Defendant does not graciously accept defeat in a legal tussle before the courts of law.”

The embarrassing ruling comes just a day after the ACB through its Public Relations Officer Egritta Ndala admitted that it has failed to make any headway on the names mentioned as being involved with Sattar as mentioned in a report presented to President Laszarus Chakwera.

The ACB admission comes in the midst of heavy accusations from members of the public that Chizuma has failed as the Head of the Bureau with some calling for her resignation or firing.

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