Senior Zimbabwean judge, Francis Bere, at misconduct tribunal

20 March 2020 · Carmel Rickard

A respected senior member of Zimbabwe's judiciary is being investigated for alleged misconduct, for the second time in little over a year. President Emmerson Mnangagwa has appointed a tribunal to investigate the allegations against him and, surrounded by considerable publicity, the tribunal members have been sworn in. The allegations against the judge concern a phone call he made to a lawyer. While the lawyer says the call included remarks to the effect that he should settle a civil dispute involving relatives of the judge, the judge himself says the call was 'purely social.'

If you follow judicial politics in Zimbabwe you could be forgiven if you felt confused by the headline that goes with this story.

Just over a year ago, Justice Francis Bere of Zimbabwe's Supreme Court was formally cleared by a panel of four judges appointed by the Chief Justice to consider a claim of ethical misconduct against him.

Yet the headline above reads that the same Justice Bere is being investigated for alleged misconduct. Is it a misprint? Has someone revived an old story by mistake?

Indeed not.

Gazette

President Emmerson Mnangagwa has appointed a three-person tribunal to investigate yet another set of allegations against Justice Bere. And there is even an official Government Gazette (Proclamation 1 of 2020) that spells it out: a tribunal is established, says the Gazette, 'to inquire into the question of removal from office of the Honourable Justice Francis Bere JA.'

The tribunal is headed by a retired judge, Simbi Veke Mubako, and it includes two other members who are lawyers: Rekai Maposa and Takawira Nzombe. They have been given four months for their investigations, hearings and inquiries. Then they have a month to write a report in which they either clear the judge or recommend his removal from office. Among other issues they must consider for the report is the question of whether the judge's conduct 'can be deemed to have been tantamount to gross misconduct'. In particular, did he 'conduct himself' or 'preside over' matters where there was a conflict of interest?

The tribunal may decide whether the inquiry is held in private or in public.

Conversation

Local media report the complaint now the subject of a tribunal was laid by a lawyer who said that the judge had contacted him by phone. During the course of the conversation a dispute between the lawyer’s client and Fremus Enterprises was mentioned.

‘The learned judge’s relatives are co-directors of Fremust Enterprises … The learned judge inquired whether or not there would be possibility of payment being expedited to Fremus,’ the lawyer said later.

The lawyer said he ‘declined the request’ and that the conversation ‘ended abruptly on that note.’

Justice Bere's version is rather different. He said that it was a social call, made on the basis that the two both used to sit on the Zimbabwe Football Association ethics committee.

Formal complaint

The lawyer, Itai Ndudzo, later mentioned the conversation during a court hearing, and the Deputy Chief Justice, Elizabeth Gwaunza, advised that he should file a formal complaint. This in turn led the Judicial Service Commission to consider the matter and write to the President, formally advising that the issue of the judge's removal from office 'ought to be investigated'.

The earlier misconduct matter also involved a civil case. The complaint was brought by a top official of Meikles Ltd, John Moxon. According to Moxon's allegations, Justice Bere had presided in the case even though, according to Moxon, the judge had a conflict of interest in the matter which involved a dispute between Meikles and Widefree Investments.

Client

Widfree was said to be 'linked to industrialist Joseph Kanyekanye, a long standing client of Bere Brothers'; this is a law firm founded by Justice Bere when he was still in practice.

The four-judge committee investigating the matter found, among other things, that there was no evidence the judge was aware of the client-legal practitioner relationship between Kanyekanye and Bere Brothers, as he had long severed ties with the firm.

Transgender rights

More recently, Justice Bere made headlines with the publication of a decision written while he was still a member of the high court in Bulawayo. The case concerned transgender rights - a highly contentious issue in Zimbabwe. The police had seriously infringed the constitutional rights of a transgender person, Ricky Nathanson, while a high profile member of the ruling party's youth league played a key role in taunting and harrassing her. Justice Bere awarded her damages, but by that stage Nathanson had already left the country. She went to the USA where she claimed asylum on the basis of Zimbabwe's shocking treatment of LGBTI people. The decision by Justice Bere won considerable approval in many parts of the world, though the reception of his judgment was not as warm in his own country.

Serious

While the allegations against Justice Bere, if proven true, are very serious and warrant action against him, human rights activists say that misconduct claims against members of the judiciary are not investigated uniformly and that some serious complaints do not result in action.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.