Fidelis Munyoro, Chief Court Reporter
The three-member tribunal to inquire into the suitability of Justice Erica Fungayi Ndewere to hold the office of a judge is expected to be announced today after the Judicial Service Commission (JSC) last week recommended to President Mnangagwa to set it up.
The tribunal for Justice Ndewere is coming after the sacking last week of Supreme Court Judge Justice Francis Bere for improper conduct after the tribunal set up on another JSC recommendation found the judge was no longer suitable to hold office.
Justice Legal and Parliamentary Affairs Permanent Secretary Mrs Virginia Mabhiza confirmed that the steps required to bring the judge before a tribunal were moving forward.
“The proclamation for the setting up the tribunal will be published on Monday, which will set the processes in motion. The allegations against the judge will also be spelt out,” she said.
According to sources Justice Ndewere is facing allegations of misconduct and conduct inconsistent with being a judicial officer. Her suspension from the bench will be automatic by operation of law once the tribunal is in place.
The JSC last week said investigations into misconduct allegations against Justice Ndewere were formalised in March this year and had nothing to do with her granting bail to MDC-Alliance deputy chairperson Job Sikhala recently. After the results of these investigations were studied by the JSC, the commission then recommended the tribunal.
While the President formally appoints the tribunal, and has to formally dismiss the judge if the tribunal makes an adverse finding, he has no input in the process, acting on the recommendation of the JSC to appoint the tribunal and on the recommendation of the tribunal to clear or fire a judge.
The commission was responding to reports from certain quarters of the media which sought to link the judge’s predicament to Sikhala case, claiming she was being persecuted.
“It is, therefore, unfortunate for one to attempt to link a genuine accountability process that the Honourable Judge is going through with the decisions that the judge made in court,” said the JSC in a statement.
“The Judicial Service Commission respects and indeed makes every effort to protect the independence of the Judiciary. This is a constitutional imperative which we will always adhere to.
“The synopsis of events given shows that there is no connection between the two decisions by the JSC and that of the judge in Sikhala’s matter.”
Justice Ndewere has since responded to JSC allegations through her lawyers Sawyer and Mkushi Legal Practitioners.
She referred to the Constitution, arguing that Judge President Justice Chiweshe was in charge of the High Court, while the Chief Justice was in charge of the Supreme Court.
The judge insisted that the JSC did not have the legal authority to deal with complaints raised against her.
“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,” read the letter dated September 30, 2020.
She implored the Chief Justice to follow laid down procedures for dealing with complaints against a sitting judge.
If the tribunal clears her, she will return to the bench; if the tribunal makes other findings and recommendations she could well lose her post. The tribunal is not a criminal court, but can report that certain conduct is not consistent with holding judicial office.
Justice Bere was fired by President Mnangagwa last week for gross misconduct following recommendations by the tribunal set up to inquire into his fitness to hold the office of a judge.
Justice Bere, who was on suspension pending conclusion of investigations, was fired for interfering with a Harare lawyer involved in a matter in which he had an interest.
Retired Judge Justice Simbi Mubako chaired the three-member tribunal which investigated the judge’s conduct.
The tribunal presented its findings and recommendations to President Mnangagwa at State House after which the report was actioned and the decision made to sack the judge immediately.
Other members of the tribunal were Advocate Takawira Nzombe and veteran lawyer Ms Rekayi Maposa.
President Mnangagwa set up the tribunal inquiry on the recommendation of the Judicial Service Commission after the lawyer accused Justice Bere of interference in a civil case involving the Zimbabwe National Road Administration (Zinara) and his relatives.
The judge allegedly telephoned the lawyer, who was representing Zinara, asking him to consider settling a civil dispute pitting Zinara against Fremus Enterprises. Justice Bere was serving on both the Constitutional Court and Supreme Court benches when he was suspended in March this year.