HARARE – In a surprise move, Chief Justice Luke Malaba and his deputy Elizabeth Gwaunza have recused themselves from the case involving fired High Court Judge, Justice Erica Ndewere.
The recusal came after Beatrice Mtetwa, the lawyer representing Justice Ndewere, requested that they step down from the case.
Ndewere is challenging her dismissal by President Emmerson Mnangagwa in 2021, arguing that the process was unlawful and unconstitutional.
Ndewere was dismissed after a tribunal established by Mnangagwa recommended her removal from office for gross incompetence.
However, Ndewere contends that she should have been subjected to the same investigation process as all other judges, which involves a panel of three judges conducting a peremptory investigation.
In her court challenge, Ndewere argues that the tribunal established by the President was irregular and did not follow the proper procedures outlined in the Constitution.
She is seeking a declaration that her dismissal was unlawful and that she should be reinstated as a High Court Judge.
Justice Paddington Garwe on Wednesday chaired a Constitutional Court bench, which comprised Justices Rita Makarau, Anne-Marie Gowora, Ben Hlatshwayo, Bharat Patel, Tendai Uchena and Nicholas Mathonsi.
Mtetwa argued that Justice Ndewere’s dismissal was unlawful, citing Section 19 of Statutory Instrument 107/2012, which states that judges must deliver judgments within 90 days. The Statutory Instrument provides its own penalties for non-compliance, which do not include dismissal.
Mtetwa also pointed out that the charges brought against Justice Ndewere by the Judicial Service Commission (JSC) and the Tribunal were not framed as gross incompetence, but rather that she had incompetently performed her duties.
She therefore argues that the referral to the Tribunal was unlawful, and the President cannot dismiss a judge based on an illegality.
The prominent human rights lawyer raised issues of discrimination and equality before the law, which are outlined in her Heads of Argument. The court reserved judgment in the matter.
Notably, the official reason given for the absence of Chief Justice Malaba and Deputy Chief Justice Gwaunza is that they are busy conducting interviews for High Court Judge positions.
Mtetwa had, however, written to request their recusal from the case.
Investigations against Justice Ndewere began a few weeks after she had granted bail to President Mnangagwa’s fierce critic and then opposition MDC Alliance deputy chairperson Job Sikhala.
