Ruling on Ndewere appeal reserved

The Supreme Court has reserved judgment in the case in which expelled High Court judge Erica Ndewere is challenging a High Court judgment which upheld her referral to a Tribunal before internal disciplinary procedures were instituted.

Ndewere was fired in June last year after a Tribunal set up to inquire into her suitability to hold a judicial office recommended that she be removed from the bench for gross incompetence.

A three-member Tribunal led by retired judge Justice Simbi Mubako, made recommendations for the judge's removal from the esteemed bench after a fully contested Tribunal hearing.

She was accused of gross misconduct in the performance of her duties, including failure to clear her workload in reasonable time and failure to properly study the file on a thief's conviction and sentence when she set aside a jail term.

In this case, Ndewere is challenging the High Court decision that dismissed her application for an order declaring her referral to the Tribunal without being subjected to internal disciplinary processes unlawful as it was in contravention of Statutory 107 of 2012.

Justice Sunsley Zisengwe declined her case, ruling that the Judicial Service Commission acted lawfully by referring her to the Tribunal.

A three-judge panel of Justices Lavender Makoni, Nicholas Mathonsi and Samuel Kudya yesterday heard the appeal and reserved judgment after hearing submissions from both parties' legal counsel.

Through her lawyer, Ms Beatrice Mtetwa, Ndewere asked the superior court to declare that the referral to the tribunal was null and void in the absence of her case being first investigated in terms of the Judicial Code of Ethics as was done in former High Court judge, Francis Bere's case.

Bere was subjected to the Ethics Committee before his case was referred to the Tribunal. He was later sacked after the Tribunal recommended his removal from the bench for improper conduct.

Like an employment Code of Conduct, judges are entitled to have their case first investigated independently before referral to the JSC, which merely rubber stamps without conducting any investigations, argued Ms Mtetwa.

To this end, Ms Mtetwa argued that the High Court misdirected itself in placing reliance on section 187(3) of the Constitution.

She said the principle of subsidiarity required that Ndewere be subjected to internal disciplinary measures, according to the Judicial Service (Code of Ethics) regulations 2012.

 Both the Attorney-General and the JSC represented by Mr Mike Chimombe and Mr Addington Chinake vehemently opposed the appeal.

 They argued that the lower court;s decision was proper and could not be faulted. The court also heard that Ndewere compromised herself when she participated in the Tribunal proceedings when her appeal was still pending.

"We say it was impeachable conduct and in any event the matter is now moot.  She was removed from office already and JSC  acted properly because  they only followed the constitution and she refused to comment on charges," said Mr Chinake.