ED sets tribunal for Job Sikhala bail judge, Justice Erica Ndewere

By Nyashadzashe Ndoro

President Emmerson Mnangagwa is pressuring the Judicial Service Commission (JSC) to set up a Tribunal to assess whether a suspended High Court judge, who recently granted bail to main opposition MDC Alliance Vice Chairman Job Sikhala, was fit to hold office.

High Court Judge Justice Erica Ndewere who recently granted bail to Sikhala has been suspended after she was simply accused of “misconduct and conduct inconsistent with being a judicial officer” by the JSC.

The matter had been referred to Mnangagwa to appoint a tribunal to inquire into the question of removal from office of Justice Ndewere.

Through a Statutory Instrument (SI) 261B of 2020 seen by this publication, Mnangagwa Wednesday Mnangagwa appointed Retired Justice, Simbi Veke Mubako as Chairperson of the Tribunal and Yvonne Masvora and Charles Warara as the members.

The three member Tribunal is expected to run for five months, investigating whether Ndewere is fit to hold office.

“Now therefore under and by virtue of the powers vested in the President as aforesaid, I do, by this proclamation:

“(a) establish a Tribunal to enquire into the question of removal from office of Honourable Justice Erica Fungai Ndewere;

“(b) appoint Simbi Veke Mubako; as Chairperson of the Tribunal.

“(c)……….

“d) direct that the Tribunal shall be held for a period of five months from these date of swearing in of members, at such appropriate venue as shall be determined by the Tribunal.

“(e) ……

“(f) direct that The Terms of Reference shall be as follows:

“1) to investigate into the matter of the removal from office of Honourable Justice Erica Fungai Ndewere;

“2) to investigate into the matter of Honourable Justice Erica Fungai Ndewere’s conduct, whether it can be deemed to have been tantamount to gross incompetence;

“3) to investigate whether the Honourable Justice Erica Fungai Ndewere interfered with the course of deliberation of the Judicial Service Commission concerning charges that were levelled against her.

“4)… .. …. .

“5)…. . …… .

“6) to recommend on whether the Honourable Justice Erica Fungai Ndewere, is fit to hold office in the light of the ongoing,” read the SI.

Ndewere presided on the bail judgment of Sikhala who was arrested in connection with 31st July protests against corruption and charged with inciting violence.

In her judgement, Ndewere castigated the magistrate Court for denying Sikhala bail saying; “clearly the misdirection by the lower court was so astonishing.”

The suspension of Ndewere comes barely three weeks after Sikhala’s bail ruling which was not popular with the Zanu PF bigwigs.

Observers have since argued she was being persecuted by President Emmerson Mnangagwa’s regime for granting the prominent opposition leader bail.

Speaking soon after the “landmark” ruling, Sikhala said, “that judgement is going to be one of the greatest judgements delivered in our country. It’s going to be reported even in foreign law reports.”

In a statement, JSC said allegations against the judge arose 11 months ago, long before Sikhala made a bail application at the High Court in September this year but it did not disclose what the allegations were.

“Formal investigation into the allegations of the Judge’s misconduct commenced on 12 March 2020 and on the 6th of May, the Judge formally responded to the allegations.

“On the 11th of September, the allegations against the judge were referred for consideration by the JSC in terms of Section 187 (3) of the Constitution.

“This again was before the judgement in respect of Hon Job Sikhala’s bail application had been made.

“The court’s decision on Honourable Job Sikhala’s bail application was only handed down on the 22nd September 2020, eleven months after the allegations against the Judge had risen and six months after the formal investigations had commenced.

“It is important to note that in all the deliberations and decisions relating to the allegations against the Judge by the JSC in the Chief Justice and the Judge President of the High Court did not participate because they were involved in the initial investigations on the allegations made against the Judge.

“The synopsis of events given above shows that there was no connection between the two decisions by the JSC and that of the Judge in Hon Sikhala’s matter.

“It is therefore unfortunate for one to attempt to link the genuine accountability process that the Hon Judge is going through with the decisions that the judge made in court.

“The JSC respects and indeed makes every effort to protect the independence of the judiciary.

“This is a Constitutional imperative which we will always adhere to.

Justice Ndewere of the Harare High Court is accused of “misconduct and conduct inconsistent with being a judicial officer,” read the statement.

Recently, Mnangagwa set up the tribunal inquiry into the fitness of Supreme Court Judge Justice Francis Bere to hold office after a lawyer accused him of interference in a civil case involving the Zimbabwe National Road Administration and his relatives.

He has since been fired by the Zanu PF leader after he was found unfit to hold the office by the tribunal. Nehanda Radio