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?
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.
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.
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.
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.
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.
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.