The Judicial Service Commission (JSC) has recommended a tribunal to investigate whether or not High Court judge Justice Erica Ndewere was fit to hold office after discovering she was not clearing her workload in reasonable time and that she had not properly studied the file on a thief’s conviction and sentence when she set aside a jail term.
There is no suggestion of improper conduct in the commission’s recommendation, just that the judge is not up to the standard expected by not reading files properly and delaying matters way beyond permitted limits.
In the case of setting aside the jail term of a thief, Justice Ndewere reviewed the decision of a Marondera magistrate to lock up Kenneth Majecha (21) for theft and referred the case back to the lower court for re-sentencing, recommending community service for Majecha, whom she referred to as a youth and a first offender.
But she was wrong about the Majecha being a first offender.
He had three previous convictions and the court record showed this and included copies of the required certificates.
In fact, in giving reasons for the jail term, the magistrate highlighted Majecha’s three previous convictions together with their case numbers.
According to the trial record, which was also brought before the High Court for review, Majecha was convicted for housebreaking and sentenced to eight months in prison in 2016. In 2017, Majecha was sentenced to a wholly suspended two-year prison term but the same year was back in court, convicted of robbery and jailed for an effective 26 months.
The JSC contends the judge decided on the case without fully reading the record of proceedings, the trial magistrate’s reasons for sentence and the attached certificates of previous convictions.
“Had she done so, these would have dissuaded her from making the order she did,” reads JSC’s first complaint against the judge.
But the quashing of the sentence did not affect the prisoner. He had already served his full sentences by the time the judge made her review.
“Despite receiving the record for review on May 9 2019, the judge failed to action the file until October 22 2019 when the review minute was issued. A period of five months lapsed without the proceedings being reviewed. The accused had already served the full term of imprisonment by the time the review minute was released,” reads the second complaint.
“The judge’s performance has failed to meet the expected standard of a judge,” reads JSC’s third complaint.
By June 30 last year, Justice Ndewere reportedly had 12 reserved judgments which had gone for at least two years without a determination. Failure to deliver a reserved judgment within a period of 90 days is a breach of the JSC (Code of Ethics) Regulations of 2012.
By May 18 this year, Justice Ndewere had 28 pending cases with judgments having been reserved for periods stretching from nine to 24 months.
Meanwhile, Justice Ndewere is battling to stop President Mnangagwa from constituting the tribunal the JSC desires.
Through Sawyer & Mkushi Legal Practitioners, Justice Ndewere seeks an order stopping the set up of the tribunal on the basis that if the tribunal is set up she will be automatically suspended, causing her irreparable damage, as well as he belief that “the setting up a tribunal is wrong factually, procedurally and on points of law”.
Justice Ndewere believes she is being victimised.
“In my view, (Chief Justice Luke Malaba) is victimising me for refusing to follow his unlawful instruction which he issued in August 2019 in connection with the bail matter I handled that month. This is why even before I had explained the Kenneth Majecha review in June 2020, the (Chief Justice) told the (Judge President George Chiweshe) to tell me that he wanted to take me to the tribunal.”
She said her application for a court order preventing President Mnangagwa from setting up the tribunal was the only course of action open to her to keep her job.