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Fidelis Munyoro

Chief Court Reporter

A three-member tribunal led by retired judge Justice Simbi Mubako was sworn in yesterday by President Mnangagwa to inquire into the fitness of suspended High Court judge, Justice Erica Ndewere, to hold office.

The other members are lawyers Mr Charles Warara and Ms Yvonne Masvora.

Justice Ndewere was automatically suspended two weeks ago following President Mnangagwa’s appointment of the three-member team on the recommendations of the Judicial Service Commission (JSC).

The commission reportedly alleges slipshod work and a large batch of overdue judgments.

The proclamation setting up the tribunal was issued two weeks ago.

The Constitution provides that a judge may be removed from office only for inability to perform the functions of his or her office, due to mental or physical incapacity, or gross incompetence, or gross misconduct. Otherwise judges serve until retirement or resignation.

The process is deliberately designed to ensure judges have practical independence since ruling against the Government of the day in a judgment cannot lead to a tribunal hearing.

The Constitution further stipulates that if the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, the President must appoint a tribunal to inquire into the matter. He does not have much discretion in the matter.

Addressing journalists after the swearing-in of the tribunal, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi said once the President has been informed by the JSC and given the detailed reasons for their recommendation, then the due process of the law should be followed.

“This is exactly what the President has done and I believe it is very good for the judicial system,” he said.

Minister Ziyambi scoffed at claims by Justice Ndewere that the Judiciary was “captured” and that she was being persecuted for refusing to obey unlawful orders.

“The whole reason why a tribunal is being set up is for the judge to subject herself to it and explain herself. But obviously she chose to play to the gallery and go to the media when the due process is very clear,” he said.

The setting up of the tribunal, he said, did not mean Justice Ndewere had been removed from the bench but that it had been set up to inquire into the question of her suitability to remain on the bench and to explain herself.

He said at the end, the tribunal would consider all facts and come up with appropriate recommendations.

“It was not right for the judge to grandstand, but to subject herself to the due process and allow that process to be completed,” said Minister Ziyambi.

Justice Ndewere had, after the recommendation of the JSC to set up a tribunal, filed an urgent application seeking an interim interdict to stop the tribunal being appointed, pending the determination of the legality of the process charted.

So far two judges — Justices Davison Foroma and Benjamin Chikowero — have recused themselves from hearing her application, saying that they both sit with her in the same section and it would be wrong for them to be asked to rule for or against her.

If the tribunal clears Justice Ndewere, she returns to the bench; if the tribunal makes other findings and recommendations she could well lose her job.

The tribunal is not a criminal court, but can report that certain conduct is not consistent with holding judicial office.

In this case, the JSC formally advised President Mnangagwa to set up a tribunal to look into the question of whether or not Justice Ndewere was fit to hold office, reportedly for slipshod work and delayed judgments.

But she denied the allegations claiming the misconduct allegations levelled against her were victimisation for refusing to comply with “unlawful orders”.

However, such a charge is not part of the tribunal’s brief, rather it has to investigate a growing pile of judgments delayed beyond the time limits set, and at least one review judgment that implied she had not read the file.

The tribunal will also seek to establish whether Justice Ndewere interfered with the course of deliberations of the JSC concerning allegations that were being levelled against her and to consider all information submitted by the JSC to arrive at an appropriate recommendation to the President.

After a full inquiry, the tribunal will make its recommendation on what it finds out about the judge’s performance in light of the allegations against her and has to report to the President these findings within a month from the date of conclusion of the inquiry.

Justice Ndewere becomes the second judge this year to be probed for conduct that constitutes judicial misconduct, and which calls for a tribunal hearing.