SELF-exiled independent Presidential candidate Saviour Kasukuwere’s hopes of participating in the August 23 harmonised elections were dashed following the nullification of his nomination by the High Court.
Kasukuwere successfully filed his nomination papers on June 21 at the High Court in Harare together with 10 other candidates vying for the highest office in the land.
The ruling by Harare High Court judge Justice David Mangota yesterday follows an urgent chamber application by a registered voter, Lovedale Mangwana challenging Kasukuwere’s candidature.
In papers before the court, the Zimbabwe Electoral Commission (ZEC) and Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi were cited as respondents.
Zimbabwe Electoral Commission
Mangwana, through his lawyers Nyahuma’s Law Golden Stairs Chambers, argued that Kasukuwere does not qualify to be a candidate in the Presidential race on the basis that he was not ordinarily resident in Zimbabwe for 18 months as required by the law.
He premised his application on Section 85 (1) of the Constitution as read with Section 23 (3) of the Electoral Act.
Mangwana’s bone of contention is that ZEC erred when it accepted Kasukuwere’s nomination papers for candidature in the forthcoming general elections.
He argued that the fact that Kasukuwere was out of the country for more than 18 consecutive months he is, in terms of Section 23 (3) of the Electoral Act, no longer a registered voter.
Mangwana contended that as a person who ceased to be a registered voter, Kasukuwere can neither vote nor be voted in the coming elections.
“I am seeking a declaration which is to the effect that the decision of the Nomination Court which accepted Kasukuwere’s papers as a candidate for election to the Office of President violated Section 91 (1) (d) of the Constitution as read with Section 23 (3) of the Electoral Act,” he argued.
According to Section 91 of the Constitution of Zimbabwe, for “qualifications for election as President and Vice-President (1) A person qualifies for election as President or Vice-President if he or she – (a) is a Zimbabwean citizen by birth or descent; (b) has attained the age of forty years; (c) is ordinarily resident in Zimbabwe; and (d) is registered as a voter.
“(2) A person is disqualified for election as President or Vice-President if he or she has already held office as President under this Constitution for two terms, whether continuous or not, and for the purpose of this subsection three or more years’ service is deemed to be a full term.”
Mangwana sought a court order directing ZEC and Minister Ziyambi not to include Kasukuwere’s name in their preparation of the ballot papers, which will be used in the electoral process on August 23.
“Kasukuwere should be interdicted from presenting himself out to the public, and the electorate in this country as well as abroad, physically or through any form of media, as Presidential candidate in the forthcoming elections,” he said.
Justice David Mangota
ZEC and Minister Ziyambi did not file any notices of opposition. However, ZEC only filed what it terms “a notice to abide by the decision of the court.”
Kasukuwere, through his lawyers Mhishi Nkomo Legal Practice, opposed the application. He argued that the court does not have the jurisdiction to hear and determine the matter.
Kasukuwere further argued that Mangwana does not have locus standi and violated the principle of subsidiarity.
He also denied, on the merits, that he was out of Zimbabwe for more than 18 consecutive months, and challenged Mangwana to prove the allegations.
Kasukuwere said he is duly nominated to be a Presidential candidate in the forthcoming elections because he meets the legal requirements for nomination.
He further contended that he left the country on a temporary basis on medical grounds.
Minister Ziyambi Ziyambi
Kasukuwere said he is a registered voter and that ZEC verified his address in terms of Section 23(3) of the Electoral Act.
He said it is his appearance on the voters’ roll which makes him compliant with Section 91 of the Constitution.
Kasukuwere alleged that he appears on the voters’ roll of Ward 40, Pfura Rural District Council, Mt Darwin South Constituency, and gave Chiunye Primary School as his polling station.
He further contended that Mangwana makes bare allegations regarding his absence from Zimbabwe.
Kasukuwere contended that the application has been overtaken by events since his name has already been gazetted together with those in the Presidential race.
He also insisted that his inclusion on the ballot paper does not interfere with Mangwana’s right to vote and sought the dismissal of the application with costs.
Justice Mangota ruled that Mangwana proved his case on a preponderance of probabilities.
“I heard and considered the case of both parties. I am satisfied that the applicant proved his case on a preponderance of probabilities. This application is, accordingly, granted as prayed for in the amended draft order,” he said.
Justice Mangota said contrary to Kasukuwere’s assertion, Section 171 (1) of the Constitution confers upon him the jurisdiction to hear and determine all civil and criminal matters throughout the country as well as to decide on constitutional matters save for those that require the Constitutional Court.
He said the appearance of Kasukuwere’s name in the gazetted Government Notice cannot be construed to suggest that it cannot be undone.
“Nothing binds on this aspect of this case at all other than to inform me and the people of Zimbabwe at large of the process which ZEC conducted on 21 June 2023.
“The point which Kasukuwere raises on this aspect of the case is without merit, and it is dismissed,” ruled Justice Mangota.