A CONSTITUTIONAL Court (ConCourt) full bench yesterday reserved judgment in a case in which former judge Justice Erica Ndewere is challenging her dismissal.
Ndewere was dismissed by President Emmerson Mnangagwa in 2021 after a tribunal he established to investigate her recommended dismissal for gross incompetence.
In her challenge, Ndewere argued that she should have been subjected to peremptory investigations by a panel of three judges like all other judges.
She argued that her constitutional right to equality before the law has been infringed.
Ndewere is being represented by Beatrice Mtetwa of Mtetwa, Nyambirai and Partners.
The ConCourt bench led by Justice Paddington Garwe, who was chairing the session, heard arguments from Mtetwa who argued that Ndewere’s dismissal was unlawful.
Mtetwa stated that the charges by both Judicial Service Commission (JSC) and the tribunal were not worded as gross incompetence, but that the judge incompetently performed her duties.
“The tribunal was, therefore, unlawful and the President cannot dismiss a judge on the basis of an illegality,” Mtetwa said.
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Mtetwa also raised issues of discrimination and equality before the law.
Ndewere’s lawyer submitted an affidavit in which Ndewere alleged that she is one of the 17 judges singled out for punishment.
The former judge said the charges on which the investigation conducted by the tribunal was based were different from those availed to her by JSC.
In her affidavit, Ndewere told the ConCourt that in terms of section 21 of the Judicial Service (Code of Ethics), the Chief Justice is required to set up a disciplinary committee of three sitting or retired judges to conduct investigations on the alleged acts of misconduct and submit its findings and recommendations.
Ndewere argued that the Chief Justice used investigative procedures that are not provided for in the Code of Ethics and, therefore, usurped the powers bestowed on the panel of three judges by law.
She added that she was not investigated by a panel of three judges, and was, therefore, treated less favourably than her male colleagues such as Justice Francis Bere and Justice Thompson Mabhikwa.
She submitted that judges, like all other citizens, are entitled to fair labour practices which include the right to a fair hearing.
“There can also be no doubt that the failure to follow mandatory pre-referral procedures violated my right to administrative conduct which is lawful, impartial and both substantively and procedurally fair and my right to a fair hearing, being rights that are protected by Section 68 and Section 69 of the Constitution, respectively,” she submitted.
Ndewere is asking the ConCourt to set aside the findings of the tribunal and reinstate her to her previous position.
Mnangagwa distanced himself from the merits of the application in his submitted response, and wants the Chief Justice and JSC to appear at the ConCourt to respond to the accusations against them.
Some judges of the High Court and Supreme Court have recused themselves from the case.
