SUSPENDED High Court judge Justice Erica Ndewere cannot demand to be investigated under the judicial Code of Ethics in a matter involving the question of removal of a judge on allegations of gross misconduct, the High Court has ruled.
Justice Sunsley Zisengwe made the ruling after Justice Ndewere approached the court challenging the legality of the tribunal appointed to probe her suitability to continue in office. She sought an order to set aside the tribunal appointed by President Mnangagwa on November 5 last year to inquire into allegations of misconduct levelled against her, arguing that she should first have been investigated under the Code of Ethics. Justice Zisengwe threw out the application because investigations under the code and a tribunal are quite separate and there are no links between the two.
He ruled that disciplinary proceedings under the code of ethics were separate and distinct from those aimed at investigating the question of the removal of a judge from office in terms of the Constitution save where findings arrived in disciplinary proceedings might well lead to appointment of a tribunal.
"The application has therefore failed to surmount the first hurdle rendering it unnecessary to interrogate the remaining requirements for an interim interdict," said the judge dismissing the application.
Justice Zisengwe accepted the argument by the Judicial Service Commission lawyer Addington Chinake who sternly defended the recommendation by the Judicial Service Commission to appoint the tribunal as something that it was entitled to do under the Constitution.
In his submissions, Mr Chinake disputed the interpretation given to the constitutional provision by Justice Ndewere's legal counsel Ms Beatrice Mtetwa and argued that conduct referred to the President does not have to be preceded by proceedings under the code of ethics.
Justice Zisengwe agreed stating that the code of ethics, made under a different section of the Constitution, was reserved for minor infractions while gross acts of misconduct amounting to impeachable conduct on the other hand invited proceedings under the Constitutional section dealing with the appointment of a tribunal.
Justice Zisengwe also found that the allegations of bias, bad faith and non-observance of other principles of natural justice levelled against the Chief Justice, Judge President, JSC and the Justice Minister in handling her matter, did not constitute the main basis of the application by Justice Ndewere. Justice Ndewere was invited to respond to the complaints presenting her with an opportunity for her to give her side of the story including allegations of malice or impropriety on the part of any of those involved.
Ultimately, Justice Zisengwe was not convinced that Justice Ndewere had managed to prove a prima facie right, let alone a clear one, entitling her as of right to be subjected to the code of ethics first before any contemplated referral of her case to the President for appointment of a tribunal.