The High Court is today expected to hear the application by Justice Erica Ndewere for an interim interdict to halt the setting up of a tribunal by President Mnangagwa to investigate her judicial conduct, pending the determination of the legality of the process followed.
Justice Ndewere approached the court after the Judicial
Service Commission (JSC) made recommendations to the President to set up a
tribunal to look into the question of whether or not she was fit to hold
office, reported for slipshod work and delayed judgments.
She is being accused of conduct inconsistent with a
judicial officer. Fellow judge, Justice Davison Foroma is expected to hear her
application brought under a certificate of urgency.
In her papers filed at the High Court on Tuesday, Justice
Ndewere claimed the misconduct allegations levied against her were
victimisation for refusing to comply with “unlawful orders”.
She cited President Mnangagwa, Chief Justice Luke Malaba,
Judge President George Chiweshe, JSC and Justice, Legal and Parliamentary
Affairs Minister Ziyambi Ziyambi as respondents.
Through her lawyer Ms Beatrice Mtetwa, Justice Ndewere
argued that Chief Justice Malaba instituted disciplinary proceedings against
her without complying with the provisions of the Judicial Services Code of
Ethics Regulations as read together with the Constitution.
She argued that the complaints against her were raised by
the Chief Justice, who then submitted them to himself as the Chief Justice,
before they were “improperly and unprocedurally” submitted to the JSC.
Justice Ndewere contends that the JSC prematurely advised
the President to set up a tribunal to investigate her without first setting up
a disciplinary committee comprising of three judges as per the standard
disciplinary procedure for the judges.
“The setting up of the tribunal violates the applicant’s
right to administrative justice, equality before the law and right not to be
treated in an unfairly discriminatory manner,” she argued.
Justice Ndewere said since the President was in the process
of setting up a tribunal to investigate her, if this was not interdicted, her
rights would be violated and her dignity impaired.
In addition, the setting up of a tribunal will result in
her automatic suspension based on a fatally flawed process, she said.
“If the tribunal is appointed in such circumstances, I am
of the view that the applicant has a reasonable apprehension that it will cause
irreparable harm both to the applicant, who will be automatically suspended
from her position as a judge and suffer serious reputational damage, and to
society as a whole as the abuse of the investigative and disciplinary process
will strike fear into the judiciary as a whole and undermine public confidence
in the judiciary,” she said.
None of the respondents have yet filed their response to
the application. Justice Ndewere’s suspension from the bench will be automatic
by operation of law once the tribunal is put in place.
If the tribunal clears her, she returns to the bench; if
the tribunal makes other findings and recommendations she could well lose her
post.
The tribunal is not a criminal court, but can report that
certain conduct is not consistent with holding judicial office. Justice Ndewere
becomes the second judge this year to be probed for conduct that constitutes judicial
misconduct, and which calls for a tribunal hearing. Herald
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