The Supreme Court has blasted suspended High Court judge Justice Erica Ndewere for refusing to furnish a prisoner with a full judgment when denying him bail, saying such conduct is not expected of judicial officers.
Justice Ndewere, who is on suspension pending a
disciplinary tribunal, threw out an application for bail pending appeal by
convicted housebreaker Tapson Nyowani, but did not hand down a judgment
explaining her decision.
The judge is under investigation for delays in writing her
judgments. She also stands accused of failing to properly read a record of
proceedings resulting in the quashing of a repeat offender’s prison term on the
basis that he was a first offender on review.
While a tribunal set by the President is yet to determine
her suitability to continue serving as a judge, Justice Ndewere has been
criticised for the delay.
Nyowani had to approach the Supreme Court without the
reasons for denial of bail, which made life difficult for the judges of appeal
at the Supreme Court.
While Nyowani still lost his bid for bail, Justice Nicholas
Mathonsi took a swipe at the conduct of Justice Ndewere saying judges were
obliged to give written reasons for their decisions through full judgments.
“There is no judgment of the court a quo refusing bail
pending appeal. In fact, the judge a quo did not prepare a written judgment and
upon being requested by the appellant to give reasons for dismissing the
application, she commented that the reasons were given in the presence of the
appellant. She then flatly refused to render any further reasons for judgment,”
said Justice Mathonsi.
When Nyowani asked for a judgment, Justice Ndewere, through
her clerk, refused to issue a detailed judgment.
The letter reads: “I gave the reasons in court, in the
presence of the applicant. The reasons I gave are as summarised in the typed
State response whose copy he was served with, that he had no prospects of
success against both conviction and sentence because there was overwhelming
evidence against him as well as his identification by witnesses.
“So he can use those reasons if he wants to appeal against
my decision. He ought to have noted the
reasons for my decision in court.”
Justice Mathonsi said expressed disquiet at the conduct of
Justice Ndewere.
“With respect, this is a very unorthodox way of giving
reasons for judgment. It becomes extremely difficult for this court to assess
the soundness of the decision of the court a quo refusing bail given that this
court does not engage the matter as a court of first instance. It is settled
that a written judgment is the foundation stone upon which a litigant builds or
loses his or her hopes of succeeding on appeal.
“It is also trite that judicial officers are obliged to
give full written reasons for judgment.
“This they do as duty owed to the consumers of their
services, the litigants. Reasons that are stored in the mind of the judge are
of no benefit to the litigants or the administration of justice, and a judicial
officer should dispel all fears of arbitrariness by rendering a written
judgment,” said Justice Mathonsi.
However, after hearing the case, the Supreme Court agreed
with Justice Ndewere that Nyowani had no prospects of success on appeal.
“There is no basis for interference with both the exercise
of the court a quo’s discretion and its factual finding that he has no
prospects of success.
“Indeed the power of this court to interfere with the
decision of the court a quo in a case of this nature is limited to instances
where the discretion was exercised so unreasonably as to vitiate the decision
made,” he said.
A three-member tribunal led by retired judge Justice Simbi
Mubako was sworn in recently by President Mnangagwa to inquire into the fitness
of Justice Ndewere, to hold office. The other members are lawyers Mr Charles
Warara and Ms Yvonne Masvora.
Justice Ndewere was automatically suspended following the
President’s appointment of the three-member team on the recommendations of the
Judicial Service Commission (JSC).
The commission reportedly alleges slipshod work and a large
batch of overdue judgments.
The Constitution provides that a judge may be removed from
office only for inability to perform the functions of his or her office, due to
mental or physical incapacity, or gross incompetence, or gross misconduct.
Otherwise judges serve until retirement or resignation.
The process is deliberately designed to ensure judges have
practical independence since ruling against the Government of the day in a
judgment cannot lead to a tribunal hearing.
The Constitution further stipulates that if the Judicial
Service Commission advises the President that the question of removing any
judge, including the Chief Justice, from office ought to be investigated, the
President must appoint a tribunal to inquire into the matter.
He does not have much discretion in the matter. Herald
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