SUSPENDED High Court judge Justice Erica Ndewere filed an application seeking the recusal of fellow High Court judge Justice Benjamini Chikowero from hearing her urgent chamber application and challenging Chief Justice Luke Malaba’s move to have her investigated over allegations of gross misconduct.
BY CHARLES LAITON
Justice Ndewere appeared before Justice Chikowero seeking to have President Emmerson Mnangagwa set aside the tribunal that he appointed last week to investigate her suitability to hold office.
A week ago, Justice Moses Foroma was forced to recuse himself from the matter after Justice Ndewere’s lawyer, Beatrice Mtetwa, questioned the impartiality of a sitting judge to preside over a matter involving a colleague.
Justice Ndewere is challenging the setting up of the tribunal on the basis that Chief Justice Malaba must first appoint an internal disciplinary hearing committee to which she intends to present evidence to exonerate herself.
She is denying the charge of incompetence and is alleging victimisation by the Chief Justice.
Justice Ndewere yesterday asked Justice Chikowero to recuse himself from hearing her case, with Mtetwa telling the judge that he could be a witness to the tribunal because he was one of the two judges that Justice Ndewere confided in after she had been threatened by Chief Justice Malaba.
Mtetwa told the court that in 2019, Justice Ndewere informed Justice Chikowero in the presence of another judge at a conference in Vumba that Chief Justice Malaba had threatened to “investigate” her after she refused to accept his instruction to deny former Public Service minister Priscah Mupfumira bail.
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Mtetwa also told the court that Justice Chikowero’s name appeared on the memorandum from Chief Justice Malaba to Judge President George Chiweshe dated February 6 2019 which listed 10 judges the Chief Justice alleged were not doing their work.
Justice Ndewere said Justice Chikowero was aware that the “facts” in that memorandum were disputed by the judges and were later withdrawn and that he may also be called as a witness to the tribunal in that regard.
Mtetwa argued that the application before Justice Chikowero was challenging the discrimination against her client because Justice Ndewere was singled out for investigation and dismissal from a list of 10 judges and Justice Chikowero was a beneficiary of the discrimination against her.
“Justice Chikowero cannot adjudicate on the matter because he is grossly conflicted,” Mtetwa argued, adding that he was Justice Ndewere’s pair judge for the urgent roll in the High Court where they worked together during evenings and weekends.
She said Justice Chikowero should not hear her case because of collegiality. However, she said she would not insist on this point if collegiality was not important to the judge. Mtetwa told Justice Chikowero that she had asked the Judge President to provide a retired judge to hear her case as most judges had either an interest in this matter or were conflicted by virtue of their outstanding judgments or reviews.
Justice Chikowore reserved judgment on the application for recusal. The main application was not considered.
Justice Ndewere is facing allegations of gross misconduct in the performance of her duties where it is alleged she caused the setting aside of the jail term of a thief, called Kenneth Majecha and referred the case back to the lower court for re-sentencing, recommending community service on the basis that the convict was a youthful first offender.
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