A magistrate on Tuesday ruled that Harare lawyer Beatrice Mtetwa should recuse herself from representing journalist Hopewell Chin’ono, citing her for “scandalising the courts.”
Magistrate Ngoni Nduna said Mtetwa had repeatedly carried out actions which undermined the justice system, including describing Chin’ono’s arrest as an abduction.
An application for her recusal was made by prosecutor Whisper Mabhaudi last week, at the start of Chin’ono’s latest bid for bail following his arrest on July 20 accused of inciting Zimbabweans to engage in violent protests on July 31.
Mabhaudi argued that comments carried on a Facebook page called ‘Beatrice Mtetwa and the Rule of Law’ were tantamount to sub judice. One post on the page read: “Where is the outrage of the international community now that Hopewell Chin’ono is being held as a political prisoner? His life is in serious peril. Raise awareness about his unlawful imprisonment. Do not let him be forgotten. You or someone you love could be the next one abducted from your home and put in leg irons. SPEAK OUT.”
Mtetwa told the court that she did not create the page and was not responsible for its contents, but Nduna found otherwise.
Nduna said a letter written by Mtetwa to the clerk of court on July 27 in which she said that the magistrate “expectedly denied our client bail” amounted to contempt of court, and ordered the Prosecutor General to prosecute her.
Starting with Chin’ono’s arrest when police broke through a glass door and snatched him, Nduna noted that the Zimbabwe Lawyers for Human Rights put out a tweet stating that he had been abducted, which was later reinforced by comments by Mtetwa when she spoke to the media.
“The picture portrayed is one of a biased justice system and the world was invited to an outrage over abuses of human rights,” Nduna said.
He said the Facebook page in Mtetwa’s name “scandalised the courts and undermined public confidence in the judiciary.”
Mtetwa denied running the page. She led evidence from Chin’ono who said it was created as part of a documentary with the same title, and was managed by an individual in the United States.
“She can’t put all the blame on Lorrie Cornway (the Facebook page administrator) and wash her hands as Pontius Pilate in the Bible,” Nduna said.
The magistrate said Mtetwa aligned herself to her client’s case and subsequently “fell off the rail of professionalism”.
“It’s illegal to step in the shoes of a client and share the feelings. The court must guard against that,” Nduna said.
The magistrate directed prosecutors to write to the Law Society of Zimbabwe to investigate Mtetwa with a view to cancelling her practising certificate – this over the July 27 letter.
In the letter, Mtetwa wrote to the clerk of court demanding that they expedite the transfer of the court record to the High Court where Chin’ono was appealing refusal of bail by Nduna.
She wrote: “The initial hearing was, as has become the practice in so-called high profile or politically-motivated cases, heard by regional magistrate Mr Nduna who rendered his decision on July 24, 2020, in terms of which he expectedly denied our client bail.”
Mtetwa also wrote that the Prosecutor General’s office “now routinely expect bail appeals to be postponed for their convenience with no regard to the sacrosanct right to liberty… Any attempts to delay the hearing of the appeal as has become the normal tactic will be opposed.”
Chin’ono lost that bail appeal, and in passing judgement, Justice Tawanda Chitapi took aim at Mtetwa. The letter was “inflammatory and demeaning, if not a direct attack on the learned magistrate,” Chitapi ruled.
“Whatever the legal practitioner intended to convey by the attack on the learned magistrate, it is unprofessional for a legal practitioner to mount a personal attack on a judicial officer… Legal practitioners are officers of the court and should not be complicit in demonising and attacking the integrity of the judicial system,” the judge added.
Speaking outside court on Tuesday, Mtetwa said Nduna’s ruling had a “chilling effect”.
“All of you heard at the beginning of the year that we will deal with the lawyers and deal with the doctors (speech by President Emmerson Mnangagwa). They have done the dealing with the lawyers. What they’re doing has a chilling effect on other lawyers. The idea is to say to human rights defenders if you defend a certain type of client, we will deal with you,” Mtetwa said.
“We’re going to challenge the decision because we don’t agree with it in a whole lot of sense, but it means the right to legal representation has been severely curtailed, and it has been curtailed by courts which are supposed to be expanding that right.”
Constitutional lawyer Professor Lovemore Madhuku said the ruling by the magistrate would not survive scrutiny on appeal.
“The right of an accused person to be represented by a lawyer of choice is one of the most fundamental rights in a democratic society,” Madhuku said. “I believe the court’s decision to bar Beatrice Mtetwa from representing Hopewell Chin’ono will not survive an urgent review by the High Court.