EMBATTLED suspended High Court judge Justice Erica Ndewere has appealed to the Supreme Court against a High Court judgment passed last month, which upheld her referral to a tribunal before internal disciplinary procedures were instituted.
Justice Ndewere has appeared before the retired Justice
Simbi Mubako-led tribunal appointed by President Emmerson Mnangagwa on
allegations of gross misconduct in the performance of her duties.
She had approached the court seeking 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.
However, on April 14, High Court judge Justice Sunsley
Zisengwe dismissed her case, ruling that the Judicial Service Commission acted
lawfully by referring her to the tribunal.
In noting her appeal, Justice Ndewere told the Supreme
Court that the court erred and misdirected itself in placing reliance on
section 187(3) of the Constitution.
She said the principle of subsidiarity required that she be
subjected to internal disciplinary measures, according to the Judicial Service
(Code of Ethics) regulations 2012.
“Justice Zisengwe erred and misdirected himself when he
ruled that Section 187/3 of the Constitution 2013 and Part 111 of Judicial
Service (Code of Ethics), Regulations 2012 provide for different procedures for
dealing with the question of misconduct of a sitting judge of the High Court
when such distinct procedures are not contained in the Constitution and the
Judicial Code of Ethics (Regulations), 2012,” she submitted.
Justice Ndewere also said Justice Zisengwe also erred and
misdirected himself when he held that section 187(3) of the Constitution was
reserved for transgressions that were deemed serious and that the Judicial
Service (Code of Ethics) regulations 2012 was reserved for minor transgressions
when such a distinction is not contained in either the Constitution, the
Judicial Services Act or the Judicial Service (Code of Ethics) regulations
2012.
Meanwhile, the tribunal completed its investigations on
April 22 and is waiting to submit its recommendations to Mnangagwa.
Justice Ndewere was suspended on November 5, 2020, accused
of failing to hand down judgments on time, but she has been pleading
victimisation by Chief Justice Luke Malaba. Newsday
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