Judge tells Mnangagwa to probe CJ Malaba

HIGH Court judge Justice Erica Ndewere has asked President Emmerson Mnangagwa to probe the conduct of Chief Justice Luke Malaba, arguing his interference with judges' independence was a danger to the judicial system.

This came as the hearing to interdict Mnangagwa from suspending her will be heard before Justice Benjamin Chikowero today after Judge President Justice George Chiweshe ignored her request to have a retired judge for her case.

In August, Justice Chikowero dismissed former Supreme Court judge Justice Francis Bere's application challenging the legality of a tribunal set to determine his fitness for office.

Yesterday, Justice Ndewere's lawyers Mtetwa and Nyambirai also wrote to Chief Secretary to the President and Cabinet, Misheck Sibanda, asking him to restore the judge's salary and benefits as the action was unlawful.

In a letter dated November 5, 2020 addressed to Mnangagwa and copied to Malaba, the Judicial Service Commission (JSC), Judge President George Chiweshe and Justice, Legal and Parliamentary Affairs minister Ziyambi  Ziyambi, Ndewere said the Chief Justice's continued threats on judges and interfering with their duties was "destabilising" operations of the High Court.

"I do so with hope and expectancy that your office will seriously look into what I consider the worst form of judicial interference in the work of the High Court by the Chief Justice," Ndewere's letter read in part.

Ndewere was last week suspended by Mnangagwa and a tribunal was set up to inquire into her suitability to hold the "esteemed office of a judge".

A three-member tribunal chaired by retired Judge Justice Simbi Mubako has been set up and includes lawyer Charles Warara and Yvonne Masvora. Justice, Legal and Parliamentary Affairs permanent secretary Virginia Mabhiza is its secretary.

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

Police besieged her Mandara house at the weekend and removed security as per the JSC request following her suspension.

Added Ndewere in her letter: "The interference by the Chief Justice affects the independence and impartiality of judicial officers when they make decisions in cases before them.

"A failure to investigate the conduct of the Chief Justice will adversely affect the entire justice delivery system which will in turn negatively impact on Your Excellency's attempts at attracting foreign investors into Zimbabwe.

"I also mention that there have been instances where judges exercised their independence and rendered decisions which accorded with their understanding of the law and the facts, only for the Chief Justice to react negatively against the decisions, resulting in late appeals or reviews designed to secure the decision favoured by the Chief Justice.

"It appears the Chief Justice wants all judges to reason and decide as he would have done had he been the one seized with the matter. It appears the Chief Justice doesn't appreciate the diverse backgrounds and experiences of judges at the High Court. The Chief Justice has failed to appreciate that as the Judiciary, we are actually a stronger unit because of those diverse backgrounds and experiences if we are left to execute our functions without fear or favour as enshrined in our Constitution and that the appeal process be left to deal with any decisions that are being contested in terms of the law."

She cited interference by Malaba in the case of former Public Service, Labour and Social Welfare minister Priscah Mupfumira and MDC Alliance vice-chairperson Job Sikhala, among others.

"He said he had a message for me from the Chief Justice. He said the message was that if I granted Priscah Mupfumira bail, I would be investigated. I felt threatened," Ndewere added.

She said according to the Constitution, the courts "are independent and subject only to the Constitution and the law which they must apply impartially, expeditiously and without fear, favour or prejudice."

"… but the Chief Justice put pressure on me by using threats of investigation to make me come up with a decision which would prejudice Priscah Mupfumira as an appellant. The breaches of the Constitution by the Chief Justice ought to be investigated," Ndewere said.

On Sikhala, she said: "It was unlawful for the Chief Justice and the commission to serve me with this letter after I had reserved the bail ruling in Mr Sikhala's case. In fact, I see a similar pattern in Priscah Mupfumira's case; the Chief Justice actually instituted an investigation to have me removed from office."

She said the process leading to her suspension was initiated without following the disciplinary procedures provided for in the code of ethics.

Ndewere said there was need to streamline the structure of the High Court to enable the Judge President to perform his functions as head of the High Court.

"If the desire is to make judges accountable to the Chief Justice and not the Judge President, then there is a need to amend the Constitution to reflect that new position," she said.

"My view is if the Chief Justice is left unchecked, he is now a danger to the High Court. This is because although we are working very hard as a court, the Chief Justice does not seem satisfied.

"He has started with me. The question is who is next from the other 17 on the list?"

Presidential spokesperson George Charamba refused to comment on the letter, saying: "I am not aware of any communication between a person in court and the President. We don't play like that. Don't you know the rules of journalism when a matter is in court? Why do you want me to talk about an issue which is before the courts?"
Anonymous judges recently wrote a letter to Mnangagwa raising the same concerns raised by Ndewere.