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Ndewere wants probe into ‘worst form of judicial interference by Malaba’

By Nyashadzashe Ndoro | Nehanda Politics |

High Court judge Justice Erica Ndewere has asked President Emmerson Mnangagwa to investigate allegations levelled against the Chief Justice Luke Malaba that he interferes with the judgments of his subordinates including the magistrates.

High Court Judge Justice Erica Ndewere who recently granted bail to main opposition MDC Alliance Vice Chairman Job Sikhala.
High Court Judge Justice Erica Ndewere who recently granted bail to main opposition MDC Alliance Vice Chairman Job Sikhala.

Mnangagwa suspended Ndewere last week and set up a three member Tribunal to investigate the conduct of Justice Ndewere.

The hearing to interdict Mnangagwa from suspending her was heard before Justice Benjamin Chikowero Wednesday after Judge President Justice George Chiweshe ignored her request to have a retired judge for her case.

Justice Ndewere through her lawyers, Mtetwa and Nyambirai wrote to Chief Secretary to the President and Cabinet, Misheck Sibanda, asking him to restore the judge’s salary and benefits as the action was unlawful.

Ndewere in a letter dated November 5, 2020 addressed to Mnangagwa, also sent to Malaba, the Judicial Service Commission (JSC), Judge President George Chiweshe and Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi, said the Chief Justice’s continued threats on judges and interfering with their duties was “destabilising” operations of the High Court.

“I do so with hope and expectancy that your office will seriously look into what I consider the worst form of judicial interference in the work of the High Court by the Chief Justice,” Ndewere’s letter read in part.

“The interference by the Chief Justice affects the independence and impartiality of judicial officers when they make decisions in cases before them.

“A failure to investigate the conduct of the Chief Justice will adversely affect the entire justice delivery system which will in turn negatively impact on Your Excellency’s attempts at attracting foreign investors into Zimbabwe.

“I also mention that there have been instances where judges exercised their independence and rendered decisions which accorded with their understanding of the law and the facts, only for the Chief Justice to react negatively against the decisions, resulting in late appeals or reviews designed to secure the decision favoured by the Chief Justice.

“It appears the Chief Justice wants all judges to reason and decide as he would have done had he been the one seized with the matter. It appears the Chief Justice doesn’t appreciate the diverse backgrounds and experiences of judges at the High Court.

“The Chief Justice has failed to appreciate that as the Judiciary, we are actually a stronger unit because of those diverse backgrounds and experiences if we are left to execute our functions without fear or favour as enshrined in our Constitution and that the appeal process be left to deal with any decisions that are being contested in terms of the law,” Ndewere said.

Done Deal: President Emmerson Mnangagwa shares a lighter moment with Chief Justice Luke Malaba
Done Deal: President Emmerson Mnangagwa shares a lighter moment with Chief Justice Luke Malaba

She cited interference by Malaba in the case of former Public Service, Labour and Social Welfare minister Priscah Mupfumira and MDC Alliance vice-chairperson Job Sikhala, among others.

“He said he had a message for me from the Chief Justice. He said the message was that if I granted Priscah Mupfumira bail, I would be investigated. I felt threatened,” Ndewere added.

Ndewere said according to the Constitution, the courts were independent and subject only to the Constitution and the law which they must apply impartially, expeditiously and without fear, favour or prejudice.

“… but the Chief Justice put pressure on me by using threats of investigation to make me come up with a decision which would prejudice Priscah Mupfumira as an appellant. The breaches of the Constitution by the Chief Justice ought to be investigated,” Ndewere said.

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

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

The suspension of Ndewere comes barely four 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.

Justice Minister Ziyambi Ziyambi and Chief Justice Luke Malaba
Justice Minister Ziyambi Ziyambi and Chief Justice Luke Malaba

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.”

Justice Ndewere said it was unlawful for the Chief Justice to try to interfere with her ruling on Sikhala.

“It was unlawful for the Chief Justice and the commission to serve me with this letter after I had reserved the bail ruling in Mr Sikhala’s case. In fact, I see a similar pattern in Priscah Mupfumira’s case; the Chief Justice actually instituted an investigation to have me removed from office.

“If the desire is to make judges accountable to the Chief Justice and not the Judge President, then there is a need to amend the Constitution to reflect that new position.

“My view is if the Chief Justice is left unchecked, he is now a danger to the High Court. This is because although we are working very hard as a court, the Chief Justice does not seem satisfied.

“He has started with me. The question is who is next from the other 17 on the list?” she added.

Through a Statutory Instrument (SI) 261B of 2020 seen by this publication, Mnangagwa Wednesday last week 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. Nehanda Radio