SUSPENDED High Court judge Erica Ndewere has dismissed allegations of incompetence levelled against her, arguing that witnesses brought to her drama-filled tribunal had failed to provide evidence as the case closes.
BERNARD MPOFU
Ndewere filed her closing submissions to the Attorney-General’s Office this week as she awaits her fate following an incident-filled hearing.
Last year, the Judicial Service Commission (JSC) wrote a letter of complaint to Ndewere, accusing her of gross incompetence and failure to carry out her duties as outlined by the law. The letter was signed by JSC secretary Walter Chikwanha.
In October 2020, Ndewere was served with a letter informing her that the JSC had resolved to advise the President that the question of removing her from office ought to be investigated.
This led to the commencement of the tribunal which was held at Harare Club Chambers amid twists and turns. The tribunal was chaired by retired judge Simbi Mubako.
Ndewere, through her lawyers Mtetwa and Nyambirai, accused Chief Justice Luke Malaba of overstepping his mandate in this case. She also criticised the unprocedural ways in which the investigation was conducted, among other averments.
“For Justice Ndewere to be found guilty of incompetence, the JSC must lead evidence showing that despite working under the same conditions as all these other judges whose judgments were handed down well outside the ninety-day threshold, she did something out of the ordinary well below the 17% of the second schedule. This the JSC and the evidence presenters did not do. As it cannot be seriously disputed that she unexpectedly fell ill and had to have an operation which took her out of work for two months, and that during this period, she was allocated work as if she was not on sick leave and that on her return, she continued receiving work without taking into account the backlog created whilst she was away, it is in fact incredible that she was able to catch up as is clear from the Ndirowei (High Court Registrar) statistics of 23rd October, 2020 which were never placed before the Commissioners,” she argues.
“The Chief Justice’s memos to the Judge President, which were based on admittedly wrong statistics, and which did not all reach her, can only be admissible in evidence on production by the Judge President who would be required to confirm having brought each one of these to the attention of the Honourable Justice Ndewere.
“Even if the Tribunal were to find some wrongdoing on the part of the judge despite the evidence of clear evidence on all the counts, it is respectfully submitted that the prayer to have her declared unfit to remain in office is so over the top as to be malicious. A reading of the provisions of Section 19 of the Code of Ethics which deals with reserved judgments is clear on the procedures to be followed where reserved judgments exceed the ninety-day period without any unusual and exceptional circumstances. As there is no evidence that such procedures were followed, and that her head of court gave her directions which she persistently disregarded, it is respectfully submitted that not delivering a few reserved judgments within ninety days in the particular circumstances she found herself in cannot justify her removal from office. This is particularly so when account is taken of the fact that the statistics in both the Supreme and Constitutional Courts as published on the JSC website during the current Chief Justice’s tenure show compliance of about 22% with the ninety-day rule as only 34 judgments out of 154 were delivered within that period. In the absence of clear evidence analysing all her cases over a period of time, it cannot be seriously contended that she continuously, persistently, defiantly failed to comply with this rule and directions given to justify a removal from office.”
Ndewere argued that although the JSC did not give evidence as to why and under what law the secretariat staff conducted the investigations, and her requests to be furnished with reasons why the code of ethics had been ignored, it appears there is a belief that the Chief Justice has a discretion to ignore provisions of the code of ethics if he considers the alleged acts of misconduct to be serious.
“With respect, such an interpretation would be wrong for a number of reasons as follows: Firstly, there is no provision in the constitution and the subsidiary legislation which gives such power to the Chief Justice. If it was the intention of the legislature or the constitution maker to give such power to the Chief Justice, the constitution and the subsidiary legislation would say so,” she argued.
“Secondly, for one to arrive at the conclusion that the allegations constitute serious misconduct worthy of being placed before the JSC for referral to the President, independent investigations as provided for under the Code of Ethics would have to be done so that there is a basis for the conclusion. This is particularly so given the lack of transparency in the investigative process which is in breach of Section 190 of the Constitution which requires that the JSC conduct its business ‘in a just, fair and transparent manner’. (It should be noted that none of the three charges before the Tribunal have been characterised as ‘gross’ as envisaged under Section 187 (1).)
“Section 21 of the Code of Ethics is mandatory in that it provides that ‘the Chief Justice shall appoint a disciplinary committee which shall investigate the acts or omissions allegedly constituting the violation’. The Chief Justice therefore has no discretion whatsoever to avoid the setting up of a disciplinary committee and his failure to appoint one renders his referral of the matter to the JSC a legal nullity.”
She added that the JSC had handled her case in violation of the law.
“Having had her reasonable expectations shattered, and it being clear that the JSC was intent on ignoring her rights to administrative justice that was lawful, and both procedurally and substantially fair, and being aware that the tables attached to the bundle of documents had been deliberately falsified, she requested her immediate superior, the Judge President, to have the statistics reconsidered in the hope that correct statistics would be presented to both the JSC and the President,” Ndewere averred.
“Despite a new and different table emerging from reconsideration, this was not availed to the JSC, the President and herself and this was only made available to her after the commencement of the
Tribunal inquiry and upon request as it was not clear which table the Tribunal charges was referring to.”
During the tribunal, High Court registrar Donald Ndirowei gave evidence pertaining to allegations that Justice Ndewere failed to give reasons why she refused to grant bail to an accused person, Tapson Nyowani, and also failed to give written reasons for the appeal for bail in the Supreme Court.
But Ndewere argued that, instead, the tribunal, through processes that are unknown to the judge, came up with a charge relating to Nyowani, a charge that was never before the JSC, was never referred to the President and was never advised to the judge prior to her receipt of the charges. From the evidence led from Elijah Makomo, it appears he was asked to investigate this allegation well after the gazetting of Proclamation 7 of 2020, Ndewere argued.
“It is therefore unclear who procured Makomo to conduct investigations into Nyowani between the JSC and the Tribunal and it is equally unclear under what law or authority this was done particularly given the fact that this was never placed before the JSC and the President and therefore does not form part of what the President considered when the Proclamation was gazette,” she argued.
Ndewere also questioned whether those who presented evidence have discharged the onus of proof on each one of the allegations before the tribunal.
“If the Tribunal determines that the charges before it are properly before it in the same format and narration that was before the JSC, and that the allegations remain the same both qualitatively and quantitatively, and that the President was similarly given the allegations as now rephrased before the Tribunal, and understood them as now framed both in terms of content, context and the numbers involved, and that the attached table before the Tribunal is the same as that considered by the JSC and the President, and that the Proclamation was based on the allegations now before the Tribunal, as supported by the same documents that were before the JSC, it is respectfully submitted that the evidence presented nevertheless fell short of what was required to prove the allegations and to invoke the ultimate penalty of removal from office,” Ndewere averred.
