INDEPENDENT presidential election candidate Saviour Kasukuwere’s unexpected entry into the cutthroat race against President Emmerson Mnangagwa and main opposition CCC leader Nelson Chamisa is fuelling political tensions which are now engulfing the judiciary as judges’ professionalism, independence and competence get tested to the limit.
One such a judge already in the spotlight and on firing line is High Court Justice David Mangota who now finds himself being grilled for his judgment on the Kasukuwere case which has been widely described as shoddy, deeply flawed and unsustainable.
Kasukuwere’s spokesperson Jacqueline Sande, a lawyer, told a Press conference in Harare on Friday that Mangota, the High Court judge who handed down the judgment disqualifying the former Zanu PF political commissar, MP andminister, was “biased” in the case as shown by his shifting of the burden of proof from the applicant, Lovedale Mangwana, a Zanu PF activist, to her client, among other fatal flaws.
Sande also said the situation was worsened by media reports and the resultant public perception that judges were given US$400 000 housing loans before elections.
However, Judicial Services Commission secretary Walter Chikwana has told The NewsHawks that he is not aware of any such loans given to judges.
“I’m not aware of any such loans extended to judges,” Chikwana said.
“However, if there was such a public and legitimate facility to improve the working conditions of judges, we would encourage judges to take it. But we don’t have any record of any judge given such a loan.”
On Wednesday last week, Kasukuwere, seen by some as a threat to the ruling Zanu PF, found himself temporarily out of the presidential race after Mangota nullified his nomination to contest the 23 August election.
Mangota found that Kasukuwere had purportedly ceased to be a registered voter as he has been out of his constituency for over 18 consecutive months.
Lawyers say Mangota got it badly wrong on this one as he had placed the burden of proof on Kasukuwere instead of Mangwana – the one who is alleging – and went onto remove the former minister from the voters’ roll arbitrarily when he had no power to do so.
The procedure of how a voter is removed from the voters’ roll is clearly spelt out in the law.
However, the ruling has been suspended after Kasukuwere’s legal team, led by Harrison Nkomo, appealed to the Supreme Court, with the application set for hearing on 27 July.
The week, Kasukuwere’s legal team has filed another application to have the judgement overturned after it emerged that Justice Mangota was given a house by the state prior to the judgement, which may have influenced the decision to remove him from the presidential race.
The applications are running concurrently.
“The Supreme court granted an order for the appeal which was noted by president Saviour Kasukuwere to be heard on an urgent basis. The timelines were set and the matter is due to be heard on the 27th of July 2023,” said Sande, Kasukuwere’s chief election agent.
“However, in the meantime, we felt that it was essential to challenge the root judgement in the matter on the basis that the judge did not give a competent order because he was biased. So this is the application we have filed before the court, that the judgement itself be rescinded because the judge was biased, having received a house from the state prior to making his judgment.
“So, in the result, we believe that it is my principal’s belief that the judgment cannot stand where the presiding officer is biased. So, this is the application that we have brought before the court in which we hope the judge will do an honourable thing and set aside the defective ruling that he made between Lovedale Mangwana and Saviour Kasukuwere.”
Sande said Mnangagwa has been running scared as evidenced by use of Zanu PF proxies to push Kasukuwere out of the presidential race.
“It would tarnish the credibility of the election if the current president is allowed to choose his own opponents by choosing his proxies to obtain defective and unsustainable and unjust court orders all in an effort to exclude one candidate from participating.
“The candidate was deemed proper to stand in the upcoming elections, his nomination papers were accepted, only for one person acting as a proxy to come out and challenge the nomination, ignoring totally the procedures laid down in the Electoral Act, specifically section 23 (3), which provides for how someone should be removed from the voters’ roll if they are found to not have been resident in their constituency if they have not been resident for a period of up to 18 months. That procedure was not followed, which we are now challenging on the basis that it is defective and cannot be accepted,” she said.
While Zimbabwe has been making it difficult for citizens to litigate through the international courts, Sande said they are going to engage the international community to underline the lawfare and injustice being deployedd against Kasukuwere by Mnangagwa’s government.
“International engagement is done in different ways. It does not have to be legal. We can be using diplomatic methods that will be there. It is not necessarily that we have to go to court, we are going to pursue engaging regional leaders, political parties, to make them see the injustice that is being done,” she The NewsHawks.
The integrity of judges has already been under scrutiny, after the executive extended to them US$400 000 housing loans last month, ahead of the general elections.
The judiciary plays a key role in mediating electoral disputes.
In 2018 presidential election was adjudicated by the Constitutional Court, after Chief Justice Luke Malaba controversially threw out a challenge to the poll result by main opposition leader Nelson Chamisa.