Fidelis Munyoro Chief Court Reporter
Three MDC-Alliance parliamentarians contesting their recall from Parliament do not want High Court judge Justice Pisirai Kwenda hearing their case since he has already ruled against 14 other MPs who made a similar application last month.
Lilian Timveos, Prosper Mutseyami and Thabita Khumalo were recalled from Parliament by the MDC-T for sympathising with the MDC-Alliance.
The basis of the recall is that the Supreme Court found in a civil suit that under party rules Thokozani Khupe was acting leader of the MDC-T and that the MDC-T is legally entitled to recall any legislators placed on the MDC-A list through a MDC-T nomination.
Through their lawyer, Mr Tendai Biti, the trio first wrote to Judge President George Chiweshe asking for the matter to be placed before another judge on the basis that Justice Kwenda had already decided on the main issues raised in the present application in his previous ruling against Basilia Majaya and others.
However, the Judge President advised Justice Kwenda that once he had allocated a matter, as he had done, his administrative functions had ended.
This entails that the issue of recusal was now a substantive issue before a concerned judge.
In the application for recusal, Mr Biti argued that Justice Kwenda has already made his decision on the matter and should not sit as to what amounted as a court of appeal on his own judgment.
In this regard, Timveos, Mutseyami and Khumalo were entitled to equal protection and benefit of the law in terms of the Constitution.
Mr Biti said equal protection and benefit of the law and due process required that another judge who had not pronounced judgment on the same issue, be allocated the case.
Justice Kwenda threw out two urgent chamber applications by 14 other MDC-A legislators on a similar case in August.
He upheld the recalls in a finding that the 14 failed to prove that their recalls were unlawful. His judgment was based on his interpretation of the Supreme Court ruling and other undisputed evidence placed before the court.