The High Court is today expected to hear the application by Justice Erica Ndewere for an interim interdict to halt the setting up of a tribunal by President Mnangagwa to investigate her judicial conduct, pending the determination of the legality of the process followed.
Justice Ndewere approached the court after the Judicial Service Commission (JSC) made recommendations to the President to set up a tribunal to look into the question of whether or not she was fit to hold office, reported for slipshod work and delayed judgments.
She is being accused of conduct inconsistent with a judicial officer.
Fellow judge, Justice Davison Foroma is expected to hear her application brought under a certificate of urgency.
In her papers filed at the High Court on Tuesday, Justice Ndewere claimed the misconduct allegations levied against her were victimisation for refusing to comply with “unlawful orders”.
She cited President Mnangagwa, Chief Justice Luke Malaba, Judge President George Chiweshe, JSC and Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi as respondents.
Through her lawyer Ms Beatrice Mtetwa, Justice Ndewere argued that Chief Justice Malaba instituted disciplinary proceedings against her without complying with the provisions of the Judicial Services Code of Ethics Regulations as read together with the Constitution.
She argued that the complaints against her were raised by the Chief Justice, who then submitted them to himself as the Chief Justice, before they were “improperly and unprocedurally” submitted to the JSC.
Justice Ndewere contends that the JSC prematurely advised the President to set up a tribunal to investigate her without first setting up a disciplinary committee comprising of three judges as per the standard disciplinary procedure for the judges.
“The setting up of the tribunal violates the applicant’s right to administrative justice, equality before the law and right not to be treated in an unfairly discriminatory manner,” she argued.
Justice Ndewere said since the President was in the process of setting up a tribunal to investigate her, if this was not interdicted, her rights would be violated and her dignity impaired.
In addition, the setting up of a tribunal will result in her automatic suspension based on a fatally flawed process, she said.
“If the tribunal is appointed in such circumstances, I am of the view that the applicant has a reasonable apprehension that it will cause irreparable harm both to the applicant, who will be automatically suspended from her position as a judge and suffer serious reputational damage, and to society as a whole as the abuse of the investigative and disciplinary process will strike fear into the judiciary as a whole and undermine public confidence in the judiciary,” she said.
None of the respondents have yet filed their response to the application.
Justice Ndewere’s suspension from the bench will be automatic by operation of law once the tribunal is put in place.
If the tribunal clears her, she returns 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 Ndewere becomes the second judge this year to be probed for conduct that constitutes judicial misconduct, and which calls for a tribunal hearing.