AN UNPRECEDENTED application for the recusal of two judges of the Common Market for Eastern and Southern African States (Comesa) court on the grounds of their alleged bias based on a personal relationship with the accused was heard by the court in Lusaka on April 19.
Former Southern African Trade and Development Bank president Martin Ogang is suing the bank for alleged wrongful dismissal and damages of $1-million. The hearings thus far have been riddled with procedural irregularities, with the court riding roughshod over its own rules.
The Mail & Guardian reported in February that court proceedings appeared to be predisposed towards Ogang and his lawyers when they were allowed to amend pleadings, and the bank’s lawyers had no opportunity to call witnesses.
The bank’s lawyers are now calling for the recusal of two judges ? the lord president, Justice AM Akiwumi, and Justice James Ogoola ? on the basis of an affidavit by Michael Gondwe, current president of the bank. Gondwe, who is also being sued by Ogang, claims that the judges have not disclosed their personal or professional relationship with Ogang. Gondwe says that in 1997 he had been asked by Ogang to visit Akiwumi at the Court of Appeal in Nairobi to discuss certain legal matters. ?The respondent [Ogang] advised me that Justice Akiwumi was a close friend of his and had assisted him in a number of legal matters in the past.”
He also says that Ogang asked him to take his ?good friend” Ogoola, who had worked with Ogang at the African Development Bank, to a Sunday lunch in September 1999. He said he had been asked to do so in order to hear the judge’s views on a decision of the Kenyan Appeal Court affecting the bank’s immunity. ?During our lunch, Mr Justice Ogoola confirmed that he was staying at Ogang’s house in Nairobi as his guest and that Ogang had given him the use of his driver,” says Gondwe in his affidavit.
Gondwe points out that from the onset of the case the proceedings have been ?so tainted with procedural irregularities and bias” that the bank will be seriously prejudiced and will not have a fair hearing before an independent and impartial court.
If the bank is successful with the recusal application, the Bench hearing the case will have to be reconstituted. A new panel of judges will have to be appointed by the heads of state of the 20-member Comesa countries at the organisation?s Addis Ababa summit next month.
If the bank’s application fails, the very judges who have been accused of bias will be hearing the next application citing procedural irregularities.
An application for judges to recuse themselves is rare, and has never occurred in the three-year history of the Comesa court.
What the presiding judge, Justice KRA Korsah, described as an attack on the judges led to their making statements explaining their relationship with Ogang. Both judges denied having a personal relationship with Ogang.
Counsel for the bank, Peter Leon, asked why, if there had been no relationship between them, would Ogang have invited Ogoola to spend the night at his house?
Leon argued that the judges had contravened Article 22 of the Comesa treaty that states there is an obligation on the judges to disclose any relationship with a defendant to the Comesa heads of state. As neither of them had done so, the two judges had breached their obligations.
Korsah demanded an apology from Leon when he claimed that the court’s record had been falsified to reflect the fact that it had sat in chambers on the afternoon of October 17 last year, when in fact it had not done so.
Korsah also ruled that the recusal application should be split from the procedural application.
It is understood that the Comesa heads of state are considering a proposal for the establishment of an appeal court as currently there is only a limited right of judicial review, which is conducted by the court itself.