SUSPENDED High Court judge justice Erica Ndewere is paying the price for reportedly refusing to take orders from Chief Justice Luke Malaba, reminding him that the Constitution does not make provision for him to supervise her work.
Ndewere, who last month granted bail to MDC Alliance
vice-chairperson Job Sikhala, said she received Malaba’s letter of complaint
against her conduct on September 15, but refused to respond, arguing Malaba did
not supervise High Court, but Supreme Court judges.
In her response, Ndewere referred to sections 163(2) and
163(3) of the Constitution, saying it was clear that the Judge President and,
in this case Justice George Chiweshe, was in charge of the High Court, while
Justice Malaba was in charge of the Supreme Court.
“The Judicial Service Commission does not have the legal
authority to deal with complaints raised against the Honourable Ndewere. We
direct your attention to Statutory Instrument 107 of 2012 and the provisions
contained therein. The Chief Justice does not have the authority to direct the
Judicial Service Commission to attend to any complaint against a sitting judge
of the High Court,” Ndewere’s lawyers Sawyer and Mkushi said in response to the
JSC dated September 30, 2020.
“The regulations which govern the handling of complaints
are contained in Statutory Instrument 107 of 2012. In the result, section
187(3) of the Constitution of Zimbabwe is not applicable to the extent that
there are no legal requirements for Ndewere to respond to your minute.”
Ndewere urged Malaba to follow laid down procedures for
dealing with complaints against a sitting judge.
According to the Constitution, Ndewere’s issue was supposed
to be handled by Justice Chiweshe, who would refer it to the Chief Justice, in
the event that he failed to address it.
After Malaba received the complaint against Justice
Ndewere, he was supposed to appoint three judges to conduct a disciplinary
hearing to make recommendations to him before involving the JSC or President
Emmerson Mnangagwa.
It would appear Malaba conflicted himself by being the
complainant when he was supposed to be the adjudicator since he also chairs the
JSC.
The internal memos showed the JSC has not yet disclosed the
misconduct charges levelled against Ndewere, but it is believed that some of
the allegations include late finalisation of matters.
The source said Ndewere was also being accused of refusing
to take Malaba’s instructions not to grant bail to Sikhala before she heard the
matter.
“Justice Ndewere is being victimised by Chief Justice
Malaba for refusing to take his instructions not to grant bail to a prominent
politician before she heard the case. Malaba threatened her with investigations
when she told him that his instructions were unlawful and against the
Constitution,” the sources said.
It is alleged Justice Chiweshe refused to raise complaints against Ndewere.
The matter is likely to spill into the Constitutional Court
as the Chief Justice’s conduct is tantamount to interference. This brings to
two the number of judges that have been suspended this year over alleged
misconduct.
Supreme Court judge Justice Francis Bere recently had his
matter concluded by a three-member tribunal in his absence after he and his
lawyers walked out on the proceedings citing miscarriage of justice.
The tribunal’s findings and recommendations are now set to
be handed over to Mnangagwa. Three months ago, Malaba wrote a memo to judges
ordering them to submit all written judgments to him for scrutiny before
delivery in court, but later rescinded the order following an outcry from local
and international jurist organisations. Newsday
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