Fired Judge Ndewere Suffers Another Reinstatement Blow

Former High Court judge, Justice Erica Ndewere has suffered another blow after her appeal against tribunal findings against her was trashed.

Ndewere was fired from the bench by President Emmerson Mnangagwa in June last year for misconduct and incompetence.

This followed recommendations by a tribunal which was set up by the President to look into her suitability to continue serving as a judge.

The tribunal comprised retired Justice Simbi Mubako, Charles Warara and Yvonne Masvora.

Following her sacking, the ex-jurist has been in the courts seeking justice from the time allegations were brought against her.

She has lost in all her applications.

In the latest matter, she was seeking the setting aside of her dismissal and the recovery of all the benefits lost from the day she was fired.

Ndewere wanted her dismissal nullified on grounds that the tribunal had no jurisdiction to inquire into her case.

But the High Court said it had no powers to interfere with the President’s decision to dismiss her.

“Using the same reasoning, in my view, what can be reviewable by this court before the President acts is the process by which the tribunal makes its recommendation.

“This is more so given the fact that the tribunal is an administrative authority unlike the first respondent who is not covered in the definition as set out in the Administrative Justice Act.

“I do accept that the court has held that sometimes, the prerogative power of the President can be subject to review,” said Mugomba.

Ndewere had submitted that she was not provided with all relevant documents to mount a stronger challenge to her dismissal.

She also said the tribunal found her guilty of gross incompetence when such charge was not part of the initial reasons for the referral of her matter by the Judicial Service Commission (JSC).

The ex-judge also said the tribunal ignored her uncontroverted evidence on her health status.

Ndewere’s lawyer Beatrice Mtetwa also complained that her client never had an opportunity to comment on the tribunal findings.

“She was not heard in mitigation in relation to the recommendation which constitutes a gross irregularity,” said the lawyer.

In response, Mubako and his colleagues said Ndewere had approached the Labour Court in Case. No. LCH/319/21 by way of an appeal.

The trio urged the High Court to decline jurisdiction on that basis.

The respondents also said there was fatal non-joinder of the JSC to the proceedings.

But Mugomba said she could not interfere with the President’s decision.

“In casu (in this case) the effecting of the recommendation to remove or not to remove a judge, unlike the appointment of a Chief is not a matter of prerogative or discretion.

“Once the tribunal makes a recommendation, the President has no choice but to effect it.

“It must also be understood that the President plays no part in the investigation or inquiry on whether or not a judge should be removed.

“He merely receives the recommendation and acts on it. To the extent that the applicant also seeks a review of the first respondent’s decision, this court has no jurisdiction to delve into it.

“I emphasise again that the first respondent has no discretion once a recommendation is made; whether it is for removal or non-removal.

“The court declines jurisdiction,” she ruled.

In here appeal, Ndewere has cited tribunal members as second to fourth respondents while President Mnangagwa was cited as the first. ZimLive