Fired High Court judge Justice Erica Ndewere has failed to overturn a High Court finding that it has no power to review the recommendations of the Tribunal that resulted in President Mnangagwa removing her from the bench.
Justice Ndewere’s appeal follows the refusal by the High Court to entertain her application for review, especially considering that President Mnangagwa’s action, in terms of the Constitution, completed the process of the judge’s removal from the bench.
A three-member tribunal chaired by retired judge Justice Simbi Mubako, made recommendations for the judge’s removal from the bench for gross incompetence, following an inquiry into her suitability to hold a judicial office.
In her appeal, Ndewere listed as respondents President Mnangagwa, Justice Mubako and the two other members of the tribunal, Advocate Charles Warara and Ms Yvonne Masvora.
The Supreme Court last week knocked down Justice Ndewere’s arguments that the High Court erred in its findings, and dismissed the appeal with costs.
Writing the judgment for the court, Justice Nicholas Mathonsi noted that Justice Ndewere’s legal theories were not in line with the actual law to overturn the High Court’s decision.
The Supreme Court agreed that no valid argument was presented that would have given jurisdiction to the High Court to set aside the President’s final decision after seeing the recommendations of the tribunal.
“Once it is accepted that the court a quo would not have had complete jurisdiction over the application that was before it, this appeal cannot succeed,” said Justice Mathonsi.
In the present case, Ndewere’s appeal was confined to the question of the High Court’s findings on its lack of jurisdiction and Justice Mathonsi noted that the High Court did not exercise jurisdiction which it did not have on the merits of the application, which would have changed the validity of the latest appeal.
“It stuck to the jurisdictional issue which it could lawfully determine,” said the judge.
“In turn, the appeal against the finding as to jurisdiction is valid. Having found that, indeed, the court had no jurisdiction, this appeal cannot be allowed. It must accordingly fail and as such the appropriate order is the dismissal of the appeal.”
Justice Ndewere was fired over gross misconduct in the performance of her duties, including failure to clear her workload in reasonable time and failure to properly study the file on a thief’s conviction and sentence when she set aside a jail term.
She had denied the charges against her claiming that Chief Justice Luke Malaba was pursuing her after she defied his unlawful orders.
She even made several unsuccessful applications to quash the inquiry, including contesting the legality of the tribunal appointed to probe her suitability to continue in office after she openly accused the head of the Judiciary of employing double standards.
The Constitution provides that a judge may be removed from office for inability to perform the functions of their office, due to mental or physical incapacity, or gross incompetence, or gross misconduct, but only after a complex process that starts with the Judicial Service Commission recommending that the President sets up a tribunal, which has to be high powered legally and chaired by a retired judge, and then that tribunal recommending removal from the bench.- state media