Alex T. Magaisa
The purpose of this article is to demonstrate the illegality of suspending Justice Erica Ndewere without her salary, allowances, and benefits. It is illegal because it has no legal authority under the Constitution or the Common Law. This is important to the rest of the judges because the mistreatment of Justice Ndewere sets a dangerous precedent for them. Removing a judge’s access to their salary and benefits during their investigation by a tribunal poses a significant assault on the principle of judicial independence. It exerts undue pressure on a judge to resign and is tantamount to constructive dismissal by the President.
Legal framework for removing a judge from office
The removal of a judge is regulated by section 187 of the Constitution. Everything that must be done can only be found under this provision. A judge can only be removed on any of the following grounds: inability to perform the functions of his or her office because of mental or physical incapacity; gross incompetence; or gross misconduct. The main charge against Justice Ndewere is gross incompetence. There is a further charge, namely that she interfered in the deliberations of the Judicial Service Commission concerning allegations against her. The Presidential Proclamation setting out the charges does not state under which of the specified grounds this charge falls.
Before a judge is removed from office, his or her case must be investigated by a tribunal which is appointed by the President upon the advice of the Judicial Service Commission. The President is required to act following the recommendations of the tribunal after it has carried out the investigation. In the case of Justice Ndewere, President Mnangagwa has appointed a tribunal chaired by a former judge, Justice Simbi Veke Mubako. There are two other members of the tribunal. The appointment was made through Presidential Proclamation No. 7 of 2020 issued under Statutory Instrument 261B of 2020.
Is suspension of a judge without salary and benefits lawful?
President Mnangagwa also suspended Justice Ndewere’s salary and benefits during her period of suspension. The question is whether the President acted lawfully in suspending the judge without her salary and benefits. The answer to this depends on whether the President has the power to suspend a judge without salary and benefits.
To answer this question, the first point of reference is the Constitution. It is to be recalled that the Constitution is the only legal instrument that regulates the removal of a judge. The question of suspension of a judge is covered by section 187(10) of the Constitution. It provides as follows:
“If the question of removing a judge from office has been referred to a tribunal under this section, the judge is suspended from office until the President, on the recommendation of the tribunal, revokes the suspension or removes the judge from office”
The meaning of this provision is clear: the suspension of a judge is by operation of law. It is not a power that is exercised separately by the President. Once the question of removal of a judge has been referred to a tribunal, the judge is automatically suspended from office. What triggers the suspension is the referral of the matter to a tribunal. Therefore, any letter or notice of suspension which the President may write to the judge is merely confirmatory of what would have already occurred by operation of law. In other words, the letter of suspension by the President is superfluous. Likewise, the President has no power to suspend the judge’s salary and benefits.
Significantly, the Constitution does not state the conditions of suspension. It simply provides for suspension by operation of law. It does not state that the judge can be suspended without his or her salary and benefits. It is trite that what is not provided for in the Constitution cannot be read into it especially if the addition is adverse to the fundamental rights and freedoms of an individual. If the framers of the Constitution wanted to allow the suspension of a judge without salary and benefits, they would have stated so in clear terms. The framers were careful to leave out this power to suspend a judge without salary and benefits because they were concerned with the protection of judicial independence and it is trite that no person should adversely interfere with a judge’s conditions of service.
No authority under the Common Law
Before we get to the issue of protecting judges’ independence through ring-fencing their salaries and benefits, it is important to make it clear that the suspension of a judge without salary and benefits does not have legal authority at common law. It is trite under common law that an employee cannot be suspended without pay and benefits. As stated by Gubbay JA (as he then was) in the case of Zimbabwe Sun Hotels Pvt Ltd v Dawn (1988),
“Even under the common law a servant who is suspended from employment – in contradistinction to being dismissed where his services are dispensed with unequivocally – is entitled to his wages”.
The rule is that a suspended employee may be called to work at any point and must remain available to the employer.
If the Constitution, which regulates the suspension of a judge had clear terms allowing for a judge’s suspension without salary and benefits, the President’s conduct would probably be lawful. However, as already stated, the Constitution does not give this power to the President. The Common Law does not permit him, and he cannot assume a power that he is not given by the Constitution.
Undermining judicial independence
One of the primary reasons why the constitution protects a judge’s salary and benefits to safeguard his or her independence. One of the fundamental principles of judicial independence is that the compensation of a judge must not be reduced while they are in office. Therefore section 188(4) of the Constitution states that,
“The salaries, allowances and other benefits of members of the judiciary must not be reduced while they hold or act in the office concerned”.
We have already observed that a judge who is under suspension is still in office. Suspending the salary and benefits of a judge leaves him or her without income and is tantamount to reduction during the period that he or she is under suspension. The reason why the compensation of a judge is ring-fenced against interference is to ensure that they are not at the mercy of external forces.
When a judge is suspended, he or she still holds office until the tribunal has recommended removal and the President has acted upon the recommendation. In other words, he or she is still a judge and may be called to perform duties. When a judge is suspended and he or she is stripped of a salary and benefits, it is tantamount to punishment and pre-judgment before the completion of the tribunal’s investigative process.
Weakening and pressurising the judge
The object of stripping the judge of his or her salary and benefits during the suspension is to weaken their resolve and pressure them into resigning. The loss of a salary and benefits commits the judge to poverty and limits the stream of income he or she needs to fight his or her case. In the case of Justice Ndewere, the tribunal is appointed for 5 months and during that time she will have no income. However, since she is still employed as a judge, she cannot take up new employment without repudiating her judicial contract. As former Chief Justice Chidyausiku stated in the case of United Bottlers v Kaduya (2006),
“Where an employee is under suspension and he takes up employment elsewhere he terminates his employment.”
Suspending salary and benefits leaves a judge in an impecunious and humiliating position. It is a form of exclusion that says you are no longer part of the establishment. It immediately shifts the onus to the judge to prove that he or she is innocent when it should be the Judicial Service Commission proving that the judge is guilty.
The Constitution does not allow suspension without salary and benefits to protect the judge’s ability to defend themselves during the tribunal process without worrying about matters of survival. It also protects the judge’s right to be presumed innocent until found guilty. The presumption of innocence is a cardinal principle in our law, even without constitutional protection. Taking away the judge’s salary and benefits pending the investigation gives the impression that the President has already pronounced the judge guilty before the tribunal has done its work. It is a substantive issue that causes procedural unfairness.
Constructive Dismissal
The reason why the President has taken this drastic step of removing her salary and benefits is not only to weaken the judge’s ability to defend herself but also to put pressure upon her to resign. If she resigns before the tribunal, she might walk away with terminal benefits. A judge might consider that a fight to the end is not worth it. When the President suspends a judge without salary and benefits, he is sending a coded message that the judge is no longer welcome in the office. It is a coded message that the judge is being sacked. It repudiates the rule that a judge cannot be sacked except on the grounds listed in the constitution. Since the Constitution does not provide for suspension without a salary or benefits, an affected judge has a strong case for constructive dismissal.
Unlevel Playing Ground
The problem is that the affected judge will effectively be fighting in an arena that is controlled by the very same people he or she is fighting. Take Justice Ndewere’s case: her fight is against the Judicial Service Commission, which recommended her investigation by a tribunal and the President, who appointed the tribunal. Her primary complaints are against the leadership of the Judicial Service Commission, specifically Chief Justice Malaba, whom she accuses of malice, unfairness, and dictatorial rule.
This means her chances of success are extremely limited because she is going against the entire political and judicial establishment. Those judging her case have a direct interest in seeing her lose. This is why even as she challenged the referral of her matter to the tribunal, President Mnangagwa went ahead anyway and issued Proclamation No. 7 appointing the tribunal. The regime is simply telling her that it doesn’t care what’s going on in the courts, it will do as it pleases.
But it is all the more remarkable that in the face of these heavy odds against her, when the whole establishment has ganged up against her, she has mounted her valiant challenge. Even though her future looks grim in Zimbabwe, the courage of her challenge should not go unnoticed beyond our borders. Whatever her weaknesses, she deserved procedural fairness and due process of law, not the underhand strategies being used by the powerful political and judicial establishment. They are using the sledgehammer to kill an ant.
Hopefully, bodies that represent judges’ interests and the rule of law around the world will take notice of her predicament. Her plight is a calamity for all the judges in Zimbabwe. The courage of her challenge must be applauded because she could just have walked away and avoided the indignities she is going through.
Why Justice Ndewere’s case matters
This matters a great deal because the treatment of Justice Ndewere has major implications for the rest of the judges. If suspension without salary and benefits is normalised, the process which is designed to safeguard the rights of judges and judicial independence will become redundant. This is because of the implications of depriving a suspended judge of his or her income which they need to defend themselves. It is, as has been argued, not only an assault on provisions designed to protect judicial independence but it is tantamount to constructive dismissal.
If allowed to stand, it will normalise the suspension of judges without salary and benefits, which becomes a sword of Damocles which hangs above the head of every judge. This in turn undermines their independence as they become beholden to the removal authority, lest they face suspension without salary and benefits. Justice Ndewere is the immediate target, but all judges are under attack.
If the political and judicial establishment can do this to Justice Ndewere, they can do it to any judge. I cannot imagine any reasonable judge would support the suspension of a fellow judge without salary and benefits. This is not just because there is a conflict of interest. It is because such a suspension without salary and benefits is illegal, both under the Constitution and at common law. The President does not have the legal authority to suspend a judge without their salary and benefits.
The tragedy is that the body which is supposed to advise the President and to safeguard judicial independence, namely the Judicial Services Commission, has become a lackey of the regime. Instead of working to defend judicial independence, the Judicial Service Commission is either actively participating in the persecution of judges or passively acceding to the machinations of the government by remaining mute in the face of blatant illegalities. Unless it reforms and changes direction, the body, the commissioners, and staff will be counted among the enablers of the undermining judicial independence and indeed, of repression.
WaMagaisa
