BY RICHARD MUPONDE
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.