SUSPENDED High Court judge Justice Erica Ndewere yesterday challenged a decision of the Judicial Service Commission (JSC) to ask President Emmerson Mnangagwa to establish a tribunal to investigate her for misconduct — and then suddenly withdrew the urgent High Court chamber application.
Justice Ndewere is accused by the JSC of wrongly quashing a prison sentence imposed on a thief and also taking too long to deliver judgments, but she accuses Chief Justice Luke Malaba of pursuing a personal vendetta after she ignored an illegal order by him to rule in a certain way in a bail application.
The embattled judge filed her urgent chamber application at the High Court yesterday morning, and within hours, she had withdrawn it.
“The applicant, hereby, files a notice of withdrawal of the urge chamber application and tenders costs,” her notice of withdrawal read.
Justice Ndewere had cited Mnangagwa, Justice Malaba, Judge President George Chiweshe, the JSC and Justice minister Ziyambi Ziyambi as respondents in her urgent chamber application.
The judge said the Judicial Service (Code of Ethics) Regulations 2012 mandated the complainants to set up a disciplinary committee to deal with the issues raised, which she said were not so serious to warrant the establishment of a tribunal by the President.
“It is unclear to me why the second respondent (Justice Malaba) is working with a common purpose to have me brought before a tribunal when they have clearly failed to comply with the Constitution and the code,” the judge protested.
“I am also concerned that I am being unfairly treated by CJ Malaba and the JSC. In my view, the second respondent is victimising me for refusing to follow his unlawful instruction which he issued in August 2019 in connection with a bail matter I handled that month. This is why even before I had explained in June this year, CJ Malaba told Judge President Chiweshe to tell me that he wanted to take me to the tribunal.”
She is accused of quashing a prison sentence imposed on 21-year-old Kenneth Majecha and substituting it with an order for the trial magistrate to consider community service.
In coming up with the decision, Justice Ndewere said she considered that the convict was a youthful offender and had no previous convictions, but the JSC says Majecha had been convicted thrice before, and details of those cases were in the court record.
The review, according to the JSC, was assigned to her in May but she did not deliver judgment until October, when Majecha had already left prison after serving his sentence.
The JSC argues that Justice Ndewere showed a lack of application to her work and her performance “has failed to meet the expected standard of a judge”.
The JSC says she was warned to improve her performance over delayed judgments in 2017, and got a second warning on February 6, 2019, after failing to perform any work since January 14, 2019.
Justice Ndewere had 12 reserved judgments as at June 30, 2019. The 12 cases had gone for more than two years without determination, the JSC charges.
“Failure to deliver a reserved judgment within a period of 90 days is a breach of the JSC (Code of Ethics) Regulations of 2012,” according to the JSC.
By May 18 this year, Justice Ndewere had 28 pending cases with judgments having been reserved for periods stretching from nine to 24 months.
On September 15, Justice Ndewere received documents of complaint raised by the JSC and her lawyers responded highlighting critical issues on how complaints against a sitting High Court judge ought to be dealt with.
She argued that her direct supervisor was Justice Chiweshe, who had not raised a complaint against her.
Justice Ndewere’s suspension earlier this month came after she granted bail to MDC Alliance deputy chairperson Job Sikhala. Chief Justice Malaba was reportedly not happy, although she does not cite this particular case, instead referring to a bail matter that was before her in August 2019 when Chief Justice Malaba allegedly made an inappropriate approach.
The controversial case that Justice Ndewere dealt with in August 2019 was the matter of corruption-accused former Labour minister Priscah Mupfumira, who she released on bail.