INVESTIGATIONS into misconduct allegations against High Court Judge Justice Erica Ndewere were formalised in March this year and have nothing to do with her granting bail to MDC-Alliance deputy chairperson Job Sikhala recently, the Judicial Service Commission (JSC) has said.
The judge is facing a tribunal to be set up soon to look into her suitability to hold the office of a judge. She is being accused of conduct inconsistent with a judicial office.
Reports in some sections of the media had claimed that Justice Ndewere was being persecuted for granting Sikhala bail.
JSC has expressed concern over false accusations being peddled against it in some sections of the media and on social media platforms, which have gone viral in defence of Justice Ndewere.
The commission said the misleading statements sought to link the institution of processes to investigate Justice Ndewere to the bail hearing of Sikhala that she recently presided over.
“It is, therefore, unfortunate for one to attempt to link a genuine accountability process that the Honourable Judge is going through with the decisions that the judge made in court.
“The Judicial Service Commission respects and indeed makes every effort to protect the independence of the Judiciary. This is a constitutional imperative which we will always adhere to,” said JSC.
The commission said the allegations against the judge arose on October 22 last year, many months before Sikhala was arrested and applied for bail in the High Court last month. The formal investigations against Justice Ndewere started on March 12 this year, and she formally responded to the allegations on May 6, before the matter was referred for consideration by the JSC in terms of the Constitution on 11 September.
“This again, was before the judgment in respect of Honourable Job Sikhala’s bail application had been made,” said the JSC adding that on September 15, the commission resolved that the judge should be made to comment on the allegations levelled against her.
Later on September 17, the judge’s lawyers wrote to JSC requesting to be given more time to respond to the allegations, which time was granted.
The court’s decision on Sikhala’s bail application was only handed down on September 22, eleven months after the allegations against the judge had arisen and six months’ after formal investigations had commenced.
The JSC also sought to clarify that in all the deliberations and decisions relating to the allegations against Justice Ndewere by the commission, Chief Justice Luke Malaba and the Judge President George Chiweshe did not participate because they were involved in the initial investigations on the allegations made against the judge.
“The synopsis of events given shows that there is no connection between the two decisions by the JSC and that of the judge in Sikhala’s matter,” said the JSC.
Through her lawyers, Sawyer and Mkushi Legal Practitioners, Justice Ndewere wrote to the JSC responding to the allegations.
She referred to Sections 163(2) and 163(3) of the Constitution, arguing that the Judge President (Justice Chiweshe) was in charge of the High Court, while the Chief Justice was in charge of the Supreme Court.
She said JSC did not have the legal authority to deal with complaints raised against her.
“We direct your attention to Statutory Instrument 107 of 2012 and the provisions contained therein.
“The Chief Justice does not have the authority to direct the Judicial Service Commission to attend to any complaint against a sitting judge of the High Court,” read the letter dated September 30, 2020.
She implored the Chief Justice to follow laid down procedures for dealing with complaints against a sitting judge.