Fidelis Munyoro Chief Court Reporter
THE High Court has declined to review a bid by former judge Erica Ndewere to contest her dismissal from the bench last year over gross misconduct.
This came after an independent tribunal recommended her dismissal after carefully sifting all evidence.
Ndewere was fired by President Mnangagwa in terms of the Constitution following recommendations by the Justice Simbi Mubako-led tribunal that found her guilty of misconduct. The President, when dealing with the appointment of a tribunal to investigate a judge and then confirming the recommendation, does not have much discretion.
The Judicial Service Commission, which includes top judges including the Chief Justice, recommends that a tribunal be set up and once the tribunal reports, the President is expected to sign off on any recommendation.
Basically the President’s job is to ensure that the steps taken to investigate and dismiss a judge follow the Constitution precisely, and that the recommendations from the commission and any tribunal are based on pure evidence on the working performance of a judge, and not on their judicial opinions or any other factor.
The Constitution preserves the independence of the judiciary by making it very difficult to get rid of a judge and only allows this when they are not doing their job, and not on what they say in their judgments.
But unhappy with the decision in her case, Ndewere brought an application at the High Court for review of the decisions of both the President and the tribunal.
Three appeal judges comprising Justice Sylvia Chirawu-Mugomba, Justice Bongani Ndhlovu and Justice Never Katiyo yesterday unanimously agreed that Ndewere was fired in terms of the Constitution. To this end, the court said it had no jurisdiction to hear the matter, finding that once the President acted on the recommendations, that becomes the end of the road for Ndewere in the High Court.
Early this year, Ndewere’s appeal at the Labour Court was struck off the roll because it was improperly before the court. The decision is now under appeal at the Supreme Court.
Writing the judgment for the High Court, Justice Chirawu-Mugomba, however, said the inescapable conclusion in the present case was that the High Court had no jurisdiction to entertain Ndewere’s application.
“The decision to remove the applicant from office having been made following the recommendation of the tribunal, and the removal having been effected thus becoming an order made in terms of the Constitution. The court declines jurisdiction,” she ruled.
Having received the tribunal’s report and recommendation, President Mnangagwa removed Ndewere from the judiciary on June 17 last year. In her judgment, Justice Chirawu-Mugomba pointed out that President Mnangagwa was not involved in the inquiry to establish her suitability to hold the top judicial office, a requirement for Ndewere to sue him.
He only acted on the recommendations made to him by the tribunal in terms of the Constitution.
“It must also be understood that the first respondent (the President) plays no part in the investigations or inquiry on whether or not a judge should be removed,” she said. “He merely receives the recommendation and acts on it. To the extent that the applicant also seeks review of the first respondent’s decision, this court has no jurisdiction to delve into it.”
The judge also noted that given the fact that Ndewere sought to challenge the recommendations of the tribunal set up in terms of the Constitution, the High Court could not assume jurisdiction on such a constitutional matter.
The Constitutional Court decides on constitutional matters and issues related to such.
All three higher courts – the Constitutional, Supreme and High Courts – have inherent powers to protect and regulate their own processes. Given that the process that Ndewere sought to challenge related to a constitutional issue or tribunal, Justice Chirawu-Mugomba ruled that the appropriate forum remained the Constitutional Court.
Through her lawyer, Ms Beatrice Mtetwa, Ndewere approached the High court seeking to be reinstated to her position.