Second judge recuses self from Justice Ndewere case

HIGH Court judge Justice Benjamin Chikowero yesterday recused himself from presiding over a matter involving suspended judge Justice Erica Ndewere saying he was conflicted. Justice Ndewere recently filed an application challenging Chief Justice Luke Malaba’s order to have her investigated for alleged misconduct.

She also challenged the move to have her investigated by a sitting judge.

Justice Chikowero becomes the second judge to recuse himself from the matter after Justice Moses Foroma said he could not handle the matter involving a colleague.

In his ruling on Justice Ndewere’s application to have him recuse himself, Justice Chikowero said justice would not have been done if he insisted ion dealing with the matter, moreso given the fact that the suspended judge was his senior and they also worked together.

“I sit on the High Court bench. So does the applicant (Justice Erica Ndewere). We are both stationed in Harare. She is my colleague,” Chikowero said in his judgment.

“I was appointed to this bench on December 14, 2017. Since then, I have always been paired with applicant (Justice Ndewere) on the urgent judge duty roster. She is the senior judge. I am the junior judge.

“This means the applicant has been my professional partner on that roster ever since I became a judge of this court. Professionally, I am, therefore, closely linked to the applicant.”

He added: “Judicial office is a public trust. My view is that my continued sitting in this matter would not maintain public confidence in the Judiciary.

“It would actually be an embarrassment to the Judiciary. It would bring the Judiciary into disrepute. Whatever my decision in the matter, justice would not be seen to have been done.”

Justice Ndewere vowed to fight the Judicial Service Commission (JSC)’s move after the latter wrote to President Emmerson Mnangagwa asking him to set up a tribunal to investigate her alleged gross misconduct.

Her lawyer Beatrice Mtetwa also confirmed the latest development.

“We are now waiting for the appointment of a retired judge to deal with the matter,” Mtetwa said.

“However, since Justice (Moses) Foroma recused himself, we wrote to the Judge President (George Chiweshe) to find us a retired judge to deal with the matter, but we have not heard from him and we are still waiting.

“In fact, we were surprised when Justice Chikowero was appointed to hear our matter because we had raised some concerns over the issue of judges.”

Justice Ndewere is facing allegations of gross misconduct in the performance of her duties, where it is alleged she caused the setting aside of the jail term of a thief, Kenneth Majecha, and referred the case back to the lower court for resentencing and recommended that he should perform community service on the basis that he was a youthful first offender.

The JSC contends that Justice Ndewere was wrong about Majecha being a first offender as he had three previous convictions.

But Justice Ndewere said she was being victimised for refusing to take orders from Chief Justice Malaba to deny bail to former Tourism minister Priscah Mupfumira and MDC Alliance deputy chairperson Job Sikhala.