Justice Ndewere challenges suspension of salary, benefits

SUSPENDED High Court judge Justice Erica Ndewere has petitioned Chief Secretary to the President and Cabinet, Misheck Sibanda, seeking restoration of her terminated salary and benefits following the appointment of a tribunal to inquire into her suitability to continue in office.

Through her lawyer, Beatrice Mtetwa, Justice Ndewere said on November 5, 2020, Sibanda wrote a letter advising that President Emmerson Mnangagwa, acting in terms of Section 187(3) of the Constitution, had appointed a tribunal and Proclamation 7 of 2020 published under Statutory Instrument (SI) 2613 of 2020.

However, Ndewere argues that in terms of the proclamation Sibanda did not have the mandate to further add a clause which stipulated that Justice Ndewere's salary and benefits are to be suspended pending an investigation into her conduct.

In a letter dated November 9, 2020 addressed to Sibanda, and copied to the Judicial Service Commission (JSC), Mtetwa urged the top security officer to immediately order the restoration of all Justice Ndewere's salary and benefits.

"We also opine that if the President, in Proclamation 7 of 2020, intended, albeit erroneously, to suspend the judge without salary and benefits, the Proclamation would in fact say so. Your office cannot, therefore, go outside provisions of the Proclamation and add its own conditions to same," Mtetwa wrote.

"In short, your superfluous confirmation of the constitutional suspension cannot import into the Proclamation what it does not state.

"In our respectful view, if the Constitution maker had intended the suspension to be without salary or benefits, or if it was intended to give the President discretion on this aspect of the matter, Section 187(10) would say so.

"We opine that by virtue of the principle of separation of powers, which forbids the Executive from being responsible for the remuneration of judges, the Constitution could not have given the President the discretion to suspend a judge in a manner that would affect the judge's salary and benefits.

"We note that in your letter you have included a sentence which states that our client's suspension "will be without salary and benefits until the final determination of the matter". With respect, the suspension is not a presidential dictate as it is by operation of the provisions of Section 187 (10) of the Constitution. That Section has no provision for suspension without salary and benefits. Neither is there another provision in the Constitution which states that the suspension can be without salary and benefits."

Mtetwa further said the move by Sibanda is discriminatory and shows malicious intent in that never in the history of judges' suspension has any judicial officer had her/his salary and benefits suspended.

"We also note that this condition as against our client (Justice Ndewere), even if it was unconstitutional, would be discriminatory and in violation of Section 56 of the Constitution in that other judges who were suspended under the same provision were not subjected to similar conditions. That the termination of some of our client's benefits is being carried out in a vindictive manner by the JSC, who have suspended her phone line and withdrawn her security without any notice or warning, make the motive for these actions suspect," she said.

Mtetwa further said the Constitution seeks to protect the tenure of judges and where it is intended to inquire into their conduct, they should not be treated as if they have already been found guilty of misconduct.

"Our client remains a judge of the High Court, albeit under constitutional suspension, which makes no provision for the suspension of salary and benefits... as your client is clear in that the suspension is in terms of section 187 (10), there can be no doubt that this section does not anywhere provide for suspension without salary and benefits.

As Section 187 (10) makes absolutely no reference to a suspension ‘without salary and benefits', and this is in line with customary international law which removes the executive branch of government from determining the judiciary's conditions of service," Mtetwa said.

Meanwhile, Justice Ndewere has intensified her quest for justice by mounting an application seeking recusal of a second judge from hearing her urgent chamber application in which she has vowed to fight Chief Justice Luke Malaba's move to have her investigated over allegations of gross misconduct.

A week ago, High Court judge Justice Moses Foroma was the first to be forced off the matter after Mtetwa raised issues on the question of impartiality of a sitting judge to preside over a matter involving a fellow judge.

On Wednesday this week, Justice Ndewere appeared before Justice Benjamin Chikowero and made another application seeking his recusal from the matter and the judge reserved his ruling.

Justice Ndewere is facing allegations of gross misconduct in the performance of her duties where it is alleged she caused the setting aside of a jail term imposed on a thief, called Kenneth Majecha and referred the case back to the magistrates court for re-sentencing and recommended that the convict should be considered for community service on the basis that he was a youthful first offender.

However, JSC contends that Justice Ndewere was wrong about Majecha being a first offender as he (Majecha) had three previous convictions and that the magistrates' court record showed that the information was there and even included copies of the required certificates.

The JSC contends the judge decided on the case without fully reading the record of proceedings, the trial magistrate's reasons for sentence and the attached certificates of previous convictions.