Mnangagwa suspends defiant Justice Ndewere

High Court judge Justice Erica Ndewere yesterday locked herself in her office and refused to accept her letter of suspension after President Mnangagwa, following recommendations from the Judicial Service Commission (JSC), set up a tribunal to inquire into her fitness to hold the esteemed office of a judge.

President Mnangagwa appointed a three-member tribunal chaired by retired judge Justice Simbi Mubako. The other two members are veteran lawyer Mr Charles Warara and Ms Yvonne Masvora.

Justice Ndewere is being accused of conduct inconsistent with a judicial officer, reportedly for slipshod work and a large batch of delayed judgments.

When officials from the Ministry of Justice, Legal and Parliamentary Affairs sought to serve her with her letter of suspension, an automatic move once a tribunal has been appointed, the judge locked herself in her chambers and could be heard shouting that papers should be served on her lawyer, Ms Beatrice Mtetwa. The State officials then opted to shove the papers under her door.

Mr Tapiwa Godzi, a director in the ministry, confirmed the development.

"What happened is that following the setting up of the tribunal by the President, the Chief Secretary to the President and Cabinet, Dr Misheck Sibanda, wrote a letter advising the judge of the appointment of a tribunal to probe her," he said.

"When officers went to effect the service, the judge refused to accept the letter and locked herself in the office. While in the office she shouted that the letter must be served to her lawyers. The officers had no option, but to slip the document under the door."

Mr Godzi said the refusal to accept the letter did not mean that she is not suspended. Her suspension from the bench becomes automatic under the law once the tribunal is put in place to pave way for investigations.

The proclamation setting up the tribunal was issued yesterday. Justice Ndewere had, after the recommendation of the JSC, already filed an urgent application seeking an interim interdict to stop the setting up of a tribunal by President Mnangagwa to investigate her judicial conduct, pending the determination of the legality of the process charted.

On Wednesday Justice Davison Foroma recused himself from Justice Ndewere's urgent application to interdict the President from setting up a tribunal to investigate her for alleged misconduct, citing professional reasons including the fact that he was in the same criminal division as the troubled judge.

In addition, Justice Foroma said that judges in the same division interact closely with each other in a number of collaborative respects. He felt there was need to maintain collegiality amongst judges to avoid perceptions in the public domain and that it would be in the best interests of justice.

Ndewere had sought the judge's recusal arguing that sitting judges would not easily rule against their superiors Chief Justice Luke Malaba, the Judicial Service Commission and Judge President Justice George Chiweshe, all listed as respondents in the matter. If the tribunal clears her, she returns to the bench; if the tribunal makes other findings and recommendations she could well lose her job.

The tribunal is not a criminal court, but can report that certain conduct is not consistent with holding judicial office.

The Constitution provides that a judge may be removed from office only for inability to perform the functions of his or her office, due to mental or physical incapacity, or gross incompetence, or gross misconduct.

Otherwise judges serve until retirement or resignation.

The process is deliberately designed to ensure judges have practical independence since ruling against the Government of the day in a judgment cannot lead to a tribunal hearing.
 
The Constitution further stipulates that if the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, the President must appoint a tribunal to inquire into the matter. He does not have much discretion in the matter.

In this case, the JSC last month formally advised President Mnangagwa to set up a tribunal to look into the question of whether or not Justice Ndewere was fit to hold office, reportedly for slipshod work and delayed judgments. But she denies the allegations claiming the misconduct allegations levied against her were victimisation for refusing to comply with "unlawful orders".

However, it is understood that such a charge is not part of the tribunal's brief, rather it has to investigate a growing pile of judgments delayed beyond the time limits set, and at least one review judgment that implied she had not read the file.

Secretary for Justice, Legal and Parliamentary Affairs Mrs Virginia Mabhiza will be the secretary to the tribunal. At the end of the inquiry, the tribunal is expected to establish whether or not the judge's conduct can be deemed to have been tantamount to gross incompetence.

The tribunal will also seek to establish whether Justice Ndewere interfered with the course of deliberations of the JSC concerning allegations that were being levelled against her and to consider all information submitted by the JSC to arrive at an appropriate recommendation to the President.

After a full inquiry, the tribunal will make its recommendation on what it finds out about the judge's performance in light of the allegations against her and has to report to the President these findings within a month from the date of conclusion of the inquiry.

Justice Ndewere becomes the second judge this year to be probed for conduct that constitutes judicial misconduct, and which calls for a tribunal hearing.