By Lance Guma
Chief Justice Luke Malaba faced an embarrassing day in the office this week after his plot to remove Justice Erica Ndewere from the bench appeared to go up in smoke with revelations a memo from the Judge President confirmed that the statistics used to charge her were all wrong.
Justice Ndewere was suspended last year after defying “unlawful instructions” from Malaba by granting bail to opposition MDC Alliance Vice Chairman and Zengeza West MP Job Sikhala. The official reason given for the suspension was that she had a backlog of 28 outstanding judgments.
A memo from the Judge President dated 14 September 2020 confirmed that the statistics used by the Chief Justice were all wrong but Ndewere was still charged using the same numbers on 15 September 2020. In fact she had ZERO outstanding reviews or judgements when she was charged.
Ndewere has denied the charges laid against her and argued that out of 17 judges she was being singled out for victimisation. Nehanda Radio understands that on the 13th of October 2020 she wrote to Judge President George Chiweshe advising him they were wasting the President’s time.
A source who spoke to Nehanda radio said;
“That is when Justice Chiweshe asked Registrar of High Court to check his figures and he produced this report. But even with this report which JP (Judge President) received on 23 October 2020, they went ahead and suspended her on 5 November 2020 without salary and benefits.
“Judicial Service Commission (JSC) deputy legal services secretary Faith Mushure made a damaging admission that they did not present the new table to the Commission! She said the resolution had already been done.
“Yet they ought to have gone back to the Commission. So it’s just JSC secretariat staff tinkering with the evidence to alter the charges! Of the lined up witnesses, she is the most senior, purporting to be representing CJ.”
This is exactly what happened during the tribunal hearings which began on Tuesday, presided over by retired judge Justice Simbi Mubako. Ndewere’s lawyer Beatrice Mtetwa grilled Mushure.
“I am aware also that several judges exceed 90 days to give their judgments and that several judges at the Supreme Court have judgments outstanding for up to three years,” Mushore admitted.
“The Judicial Service Commission has now changed the charge from 28 outstanding reviews and judgments to ‘failure to complete the judgments in 90 days’.”
“There are 17 judges mentioned in memoranda from Chief Justice (Malaba), but I was the only one singled out for victimisation,” Justice Ndewere told the tribunal.
“I explained on my part, my reasons to Judge President (Paddington Garwe) for exceeding 90 days, because I had been on sick leave for three months.
“Apparently, the Chief Justice had also written a memo to Judge President dated October 1, 2020, where he instructed judges to complete judgments which were outstanding for 15 months by November 30, 2020.
“In the memorandum, Chief Justice Luke Malaba instructed all judges to exceed the 90-day limit from three months to 17 months. I didn’t have any outstanding judgments on October 1, 2020 when this instruction was given.”
Mtetwa reminded the tribunal that at the opening of the 2021 legal year on January 16, Justice Malaba had revealed that the High Court had a backlog of 1 724 cases as at December 31, 2020, but not a single file from this backlog belonged to Justice Ndewere.
Mtetwa told the tribunal, what proved the victimisation was that; “Other judges with outstanding judgments have not been disciplined and that doesn’t matter because this hearing was about Justice Ndewere, and not other judges. These judgments were completed two years ago.”
Justice Ndewere contends she is being victimised for giving bail to Sikhala and former Labour minister Priscah Mupfumira.
“I had only one outstanding judgment when Chief Justice Malaba provided the extension to six judges. The memorandum by Chief Justice Malaba dated May 18, 2020 extended the time to complete the judgment from 90 days to July 31, 2020 and I met that deadline provided by the Chief Justice,” Ndewere said.