FIRED top judge Justice Erica Ndewere has resuscitated her challenge over her “unlawful” dismissal from office in 2021 by dragging President Emmerson Mnangagwa to court.
Ndewere was fired by Mnangagwa after a tribunal set up to investigate her recommended that she be dismissed for gross incompetence.
The judge was accused by the Judicial Service Commission of wrongly quashing a prison sentence imposed on a thief and taking too long to deliver judgments.
However, Ndewere claimed that she was being victimised for resisting Chief Justice Luke Malaba’s interference.
In her submission, Ndewere cited Mnangagwa as the respondent, arguing that he failed to fulfil a constitutional obligation enshrined in section 187(8) when he removed her from the office of a judge on account of the “invalid, unlawful recommendations” of the Simbi Mubako Tribunal.
She also argues that Mnangagwa did not file an opposing affidavit, dismissing the one filed by Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi as inadmissible hearsay.
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“He (Mnangagwa) cannot delegate this responsibility in such serious matters taking into account that the constitutional obligation enshrined in section 187(8) of the Constitution is specific and one which is only exercisable by him. Consequently, there is no valid opposing affidavit before the court,” the application read.
“In any event, the opposing affidavit purportedly deposed to by Ziyambi Ziyambi constitutes inadmissible hearsay. Ziyambi Ziyambi is the Minister of Legal and Parliamentary Affairs. He does not share the constitutional obligation enshrined in section 187(8) of the Constitution with the President.
"He does not know what the President received, read and considered when he removed me from office. Only the President does and no affidavit confirming the averments in Ziyambi Ziyambi’s affidavit.
“Therefore, his affidavit is inadmissible hearsay. In terms of the rules, only a deponent who can swear positively as to the facts can make an affidavit and Ziyambi Ziyambi, who could not have been lawfully involved in the entire process, cannot, therefore, swear positively to the averments he has made.”
Ndewere argues that Mnangagwa deliberately misconstrued Proclamation 3 of 2021, which gave the Simbi Mubako Tribunal an “option” to extend its lifespan by a further six months “after swearing in of members”.
Ndewere says Mnangagwa acted on invalid recommendations in her dismissal.
“Applicant was discriminated against when SI [Statutory Instrument] 107/12 was not followed in her case, but SI 107/12 was used by the Chief Justice to appoint a panel of judges to investigate male colleagues Justice Benjamin Bere, Justice Webster Chinhamora and Justice Thompson Mabhikwa,” she averred in her submissions.
“Applicant was discriminated against when she was singled out for charges for misconduct for breaching section 19(1) of Statutory Instrument 107/12, but no other judge who had not completed reviews of reserved judgments within three months was charged for misconduct.
“Justice Benjamin Chikowero expressed surprise in his court judgment when he recused himself from hearing my case, that he was seeing his name in a memorandum dated February 6, 2019, along with my name and other judges for allegedly not completing his work, but he was never charged and no one ever spoke to him about it. Other 17 judges who were mentioned in several memoranda along with me were never charged for gross misconduct,” Ndewere submitted.
Ndewere was suspended in 2020 before her dismissal the following year after granting bail to then MDC Alliance deputy chairperson Job Sikhala.