Bere contests JSC recommendation

SACKED Supreme Court Judge Francis Bere on Monday contested the recommendation by the Judicial Service Commission (JSC) that a tribunal should inquire into his fitness to hold the office of a judge, the same tribunal that later recommended he be fired.

He was fired for gross misconduct after the tribunal, chaired by retired judge Justice Simbi Mubako, made recommendations to President Mnangagwa that he be relieved of his duties.

A three-judge panel of the Supreme Court bench on Monday noted that Bere had filed two separate appeals with the court over matters concerning the tribunal and decided to have the two matters consolidated into a single case for hearing.

Both parties' legal counsel agreed to have the matter postponed. Justice Bere, who is being represented by Professor Lovemore Madhuku and Advocate Lewis Uriri wants the Supreme Court to nullify the High Court judgment declining a review of the JSC's decision to recommend that the President set up a tribunal.

In the second case, Bere is contesting the authority of the person who made the affidavit giving the JSC's advice, Mr Walter Chikwana, then JSC acting secretary.

Mr Chikwana, now the substantive secretary, had been delegated by JSC to file a sworn statement of the commission's decision advising the President in terms of the Constitution on the question of the tribunal that could recommend removal of Justice Bere from office.

But the lawyers argued that Mr Chikwanha was not one of the members of the JSC in terms of the Constitution, hence he could not represent the commission in a dispute where its performance of the constitutional obligation was being challenged.

But High Court judge, Justice Benjamin Chikowero was unable to agree that advising the President was invalid. He found that the fact that it is the JSC that is the legal litigant, and not some authorised person acting in its name, and so the commission was properly before the court.

It was also the judge's view that Mr Chikwana, who sits in the meetings of the JSC, was able to depose of an affidavit on behalf of the commission as he was knowledgeable of what he deposed to, hence could not be on a frolic of his own.

Justice Bere was fired for interfering with a Harare lawyer involved in a matter in which he had conflict of interest. The tribunal presented its findings and recommendations to President Mnangagwa after which the report was actioned and the decision made to sack the judge immediately.

This means the tribunal made adverse findings and recommendations leading to the judge losing his post. If it had cleared him of any wrongdoing, he could have returned to the bench.

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

Investigations were concluded in the absence of Justice Bere and his legal team after they walked out on the proceedings in protest over the tribunal's refusal to have one of its members, Advocate Takawira Nzombe, recuse himself because of his alleged links to the lawyer who was a crucial witness in the inquiry.

Defence lawyers were also not happy with the extension of the tribunal's tenure by another six months after the expiry of its initial tenure of four months. Lead defence counsel Advocate Froze Girach, Advocate Lewis Uriri and Prof Lovemore Madhuku walked out of the hearing protesting what they claimed to be a "violation of legal procedure".