Erica F. Ndewere v The President of the Republic of Zimbabwe N.O and Others

The applicant was a sitting judge of the High Court of Zimbabwe until 17 June 2021. A tribunal was established in terms of Section 187(3) of the Constitution of Zimbabwe (Amendment No. 20) 2013 to inquire into her removal from office. The tribunal, consisting of the second to fourth respondents, recommended to the President (first respondent) that the applicant be removed from office. Acting on this recommendation in terms of Section 187(8) of the Constitution, the President removed the applicant from office with effect from 17 June 2021. The applicant approached the High Court seeking a review of both the tribunal's recommendations and the President's decision to remove her, and sought reinstatement with full benefits and salaries.

• Whether the High Court has jurisdiction to review a decision by the President to remove a judge from office made in terms of Section 187(8) of the Constitution following recommendations by a tribunal
• Whether the tribunal's recommendations and the President's subsequent decision constitute an administrative action reviewable under the Administrative Justice Act and the High Court Act
• At what stage in the removal process can judicial review be sought by a judge facing removal
• Whether once the President has acted on the tribunal's recommendation, the removal decision becomes a constitutional decision beyond the jurisdiction of the High Court

1. The court declines jurisdiction. 2. Each party shall bear their own costs.

Once a tribunal established under Section 187(3) of the Constitution makes a recommendation regarding the removal of a judge, and the President acts on that recommendation in terms of Section 187(8) of the Constitution, the recommendation and the presidential action become inseparable and constitute a single constitutional decision. Such a decision, being made directly under constitutional provisions where the President has no discretion but must act on the recommendation, is not subject to review by the High Court. The High Court does not have jurisdiction to review a constitutionally mandated presidential decision to remove a judge following a tribunal's recommendation, as this is distinguishable from administrative actions or exercises of presidential discretion that are subject to judicial review.

The Court made several important non-binding observations: (1) The tribunal process before the recommendation is finalized and before it is acted upon by the President may be subject to judicial review as an administrative action, following the reasoning in Gula Ndebele v Bhunu N.O. (2) There are procedural gaps in Zimbabwe's judicial removal framework - specifically, it would be prudent to provide the tribunal's report to the affected judge before it is submitted to the President, allowing the judge to exercise their right to seek legal remedies, as was done in the Indian case of Ramaswami. (3) The case raised critical legal issues pertaining to the removal of sitting judges and available legal remedies, issues that are often taken for granted. (4) The Court suggested that different safeguards exist in other Commonwealth jurisdictions that provide judges facing removal with opportunities for review or appeal before final removal is effected.

This case is significant in Zimbabwean constitutional jurisprudence as it clarifies the limited scope for judicial review of presidential decisions to remove judges following tribunal recommendations under Section 187 of the Constitution. The judgment establishes that once the President acts on a tribunal's recommendation to remove a judge, the decision becomes a constitutional decision that merges with the tribunal's recommendation and is not subject to High Court review. The judgment suggests (obiter) that review may be available during the tribunal process before the recommendation is implemented. The case highlights procedural gaps in Zimbabwe's judicial removal framework compared to other Commonwealth jurisdictions, particularly the absence of a mechanism for the affected judge to receive the tribunal report before it is acted upon. The decision has implications for judicial independence and the accountability mechanisms applicable to the judiciary in Zimbabwe.