Zimbabwe's ConCourt upholds dismissal of Justice Erica Ndewere

The Constitutional Court (ConCourt) has ruled that President Emmerson Mnangagwa acted within his constitutional mandate when he dismissed former High Court judge Justice Erica Ndewere. This decision follows a tribunal's recommendation, made four years ago, that she be removed from office due to gross incompetence.

Justice Ndewere had challenged her dismissal before the ConCourt, arguing that the President had failed to fulfill his constitutional obligations when he removed her from the bench on 17 June 2021. She sought reinstatement as a judge, along with back pay and benefits, contending that the tribunal's recommendation was invalid and unlawful.

Represented by prominent lawyer Beatrice Mtetwa, Ndewere claimed that the tribunal had overstepped its authority and had not adhered to the procedures outlined in the Constitution and the Judicial Service (Code of Ethics). However, the Constitutional Court, consisting of Justices Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Tendai Uchena, and Nicholas Mathonsi, unanimously ruled against her.

Delivering the court's judgment, Justice Garwe stated that President Mnangagwa had acted in accordance with section 187 of the Constitution. The court found no legal basis for Ndewere's claim and dismissed her application.

"There can be no gainsaying that the President fulfilled his constitutional obligations in section 187 of the Constitution. In the circumstances, the applicant has no cause of action against the President," ruled Justice Garwe.

Justice Garwe further noted that Ndewere's application failed to meet established legal principles. He emphasized that an applicant challenging a State functionary's conduct must clearly identify both the functionary and the specific impugned conduct. The court found that Ndewere had failed to do so.

Ndewere had also alleged that her removal violated her right to equality before the law, arguing that she was treated differently from other judges who had faced disciplinary proceedings. She accused Chief Justice Luke Malaba of bypassing the requirement to appoint a panel of three judges to investigate the allegations against her, as mandated by the Judicial Service (Code of Ethics). Additionally, she claimed that the charges brought by the Judicial Service Commission (JSC) and the tribunal were inconsistent and discriminatory.

Ms. Mtetwa argued that the tribunal and the JSC had failed to follow proper procedures, rendering their recommendations unlawful. She asserted that the President should not have acted on the tribunal's advice without first ensuring that all constitutional processes had been observed.

However, the court rejected these arguments, reaffirming that the President's role under section 187(8) of the Constitution is to act on the tribunal's recommendations without questioning their validity. Representing the President, Mrs. Venrandah Munyoro contended that the Constitution does not grant the President the discretion to assess the legality of the tribunal's processes. She maintained that the President had fulfilled his constitutional duty by implementing the tribunal's recommendations, as required by law.

The court further cited the case of Joyce Teurai Ropa Mujuru v The President of Zimbabwe & Five Others to highlight the necessity of specificity in constitutional challenges. Justice Garwe pointed out that Ndewere's application lacked precision and did not establish a valid cause of action against the President.

Despite raising serious allegations against the Chief Justice, the JSC, and the tribunal, Ndewere did not cite them as respondents in her application. Justice Garwe described this omission as significant and noted that it weakened her case.

Considering the circumstances of the matter, the court ruled that no costs would be awarded.