Ndewere appeal dismissed, court says ‘you can’t interfere with ED’s decisions’

The High Court has dismissed an appeal by former judge Justice Erica Ndewere who was seeking to reverse findings of a tribunal that prompted President Emmerson Mnangagwa to terminate her job.

Ndewere was last year fired for alleged gross incompetence and misconduct by the President after recommendations from a tribunal. But many believe she was victimised for granting bail to opposition Citizens Coalition for Change (CCC) Vice Chairman Job Sikhala (MP) in 2020.

Ndewere challenged the composition of the tribunal that consisted of Simbi Mubako, Charles Warara and Yvonne Masvora saying it had no authority to investigate her.

In her application, the outspoken judge said the tribunal committed a gross irregularity because they failed to make a determination on some preliminary issues; that she was not provided with all relevant documents.

Ndewere also stated that 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 respondents who included members of the tribunal and Mnangagwa, however, challenged her on grounds that she had approached the Labour Court in Case. No. LCH/319/21 by way of an appeal.

The respondents further argued that there was a fatal non-joinder of the JSC to the proceedings.

Through her lawyer Beatrice Mtetwa, Ndewere insisted that the court had jurisdiction, especially in view of the High Court Act, which specifically refers to decisions of all tribunals being subjected to review.

Justice Slyvia-Chirawu Mugomba said she cannot interfere with the President’s decisions.

“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.

The judge stated that there was always some suspicion around a President’s executive powers, especially when it comes to matters of exercising a prerogative or discretion.

“That is why perhaps the courts have strived to keep that in check through a judicial review.

“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.

Mugomba said 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.