This decision
followed a tribunal’s recommendation, four years ago, that she be removed from
office due to gross incompetence.
Justice Ndewere
had challenged her dismissal before the Constitutional Court, seeking a
declaration that the President had not fulfilled his constitutional obligations
when he removed her from the bench on 17 June 2021.
She also sought
reinstatement as a judge, with back pay and benefits, arguing that the
tribunal’s recommendation was invalid and unlawful.
Represented by
Ms Beatrice Mtetwa, Ndewere contended that the tribunal had overstepped its
authority and failed to follow the procedures outlined in the Constitution and
the Judicial Service (Code of Ethics).
The
Constitutional Court, consisting of Justices Paddington Garwe, Rita Makarau,
Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Tendai Uchena, and Nicholas
Mathonsi, ruled unanimously against her.
Justice Garwe,
delivering the judgment, stated that the President had acted by 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 observed that Ndewere’s application failed to comply with
well-established legal principles.
He remarked:
“An applicant who seeks to vindicate a constitutional right by impugning the
conduct of a State functionary must identify the functionary and the impugned
conduct with reasonable precision. In the present matter, there has been
glaring failure on the part of the applicant to comply with this very clear
position of the law.”
Ndewere had
argued that her removal violated her right to equality before the law, claiming
she was treated differently from other judges who had faced disciplinary
proceedings.
She alleged
that Chief Justice Luke Malaba bypassed the requirement to appoint a panel of
three judges to investigate the allegations against her, as mandated by the
Judicial Service (Code of Ethics). She also claimed that the charges presented
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 the proper
procedures, rendering their recommendations unlawful.
She submitted
that the President should not have acted on the tribunal’s advice without
ensuring that all constitutional processes had been observed.
However, the
court rejected these arguments, emphasising that the President’s role, under
section 187(8) of the Constitution, is to act on the tribunal’s recommendations
without questioning their validity.
Mrs Venrandah
Munyoro, representing the President, maintained that the Constitution does not
grant the President discretion to assess the legality of the tribunal’s
processes.
She argued that
the President had fulfilled his constitutional duty by implementing the
tribunal’s recommendations, as required by law.
The court also
noted that Ndewere’s application failed to meet the legal standard for
challenging the President’s actions.
Justice Garwe
referred to a previous case, Joyce Teurai Ropa Mujuru v The President of
Zimbabwe & Five Others, to highlight the need for applicants to identify
the constitutional obligation at issue and demonstrate how it was violated.
He stated that
Ndewere’s application lacked specificity and precision, rendering her claim
untenable.
The court
concluded that Ndewere did not establish a valid cause of action against the
President.
Despite the
serious accusations Ndewere made against the Chief Justice, the JSC, and the
tribunal, she did not cite them as respondents.
Justice Garwe
described this omission as significant and noted that it undermined her case.
The court ruled
that no costs would be awarded, considering the circumstances of the matter.
Herald
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