ZIMBABWE’s Supreme Court, which usually makes fair decisions except on major politically sensitive cases, faces a stern credibility test on 27 July when it decides the fate of independent presidential election candidate Saviour Kasukuwere.
The Supreme Court will hear and decide on what legal experts say was a badly flawed High Court judgement barring the former Zanu PF commissar, MP and minister from running in the election.
Three judges, Susan Mavangira, Chinembiri Bhunu and George Chiweshe, will deal with the matter that has far-reaching consequences for freedoms of movement and residence.
A separate and unrelated constitutional case has been filed challenging the Electoral Act infractions on the Bill of Rights or those entrenched fundamental liberties.
The relevant controversial case arose after Zanu PF activist Lovedale Mangwana filed a court application seeking to block Kasukuwere from standing in the election.
Mangwana claimed that Kasukuwere’s nomination was invalid as he was automatically no longer a registered voter in Zimbabwe, having allegedly spent 18 consecutive months out of the country.
However, Kasukuwere challenged him, arguing that he has a local address where he resides and is domiciled.
Kasukuwere said he left Zimbabwe on a temporary basis on medical grounds.
He also argued that he is a registered voter and that the commission verified his address in terms of section 23 (3) of the Act.
The politician said it is his appearance on the voters’ roll which makes him compliant with section 91 of the constitution of Zimbabwe.
Kasukuwere further told the court that he appears on the voters’ roll of ward 40, Pfura Rural District Council, Mount Darwin South constituency. He stated his polling station as Chiunye Primary School A.
He said Mangwana makes bare allegations regarding his absence from Zimbabwe and has not established any right which the court should protect.
Kasukuwere alleges that the application is no more than Mangwana’s attempt to curtail his right as it is provided for in section 67 of the country’s constitution.
High Court Justice David Mangota however ruled in Mangwana’s favour, in a judgement which lawyers have widely criticised as deeply flawed, not well-thought-out and unsustainable.
Kasukuwere appealed, hence the suspension of the High Court decision pending the appeal outcome. The appeal hearing has been set down for 27 July.
However, Mangwana has also appealed to the High Court for leave to execute the judgement pending the appeal decision.
He has also applied to the Supreme Court to treat the matter urgently, given that elections are on 23 August.
Kasukuwere initially objected to this, but later withdrew the earlier objection to have the case heard on an urgent basis.
Legal analysts say, given that Justice Mangota misdirected himself on the case in broad daylight — for instance by giving himself and the court unlawful powers to remove a voter from the voters’ roll in violation of the law or shifting the burden of proof to Kasukuwere away from Mangwana – the Supreme Court faces a major litmus credibility test on 27 July.
In his application, Mangwana sought an order setting aside the decision to accept the once-influential politician’s nomination papers by the Zimbabwe Electoral Commission (Zec).
He argued that this was done in violation of section 91 of the constitution.
In his founding affidavit, Mangwana also said the Electoral Act does not allow a candidate who has been out of the country for over 18 months to contest for president.
“I submit that the decision to accept first respondent’s nomination paper is in breach of section 91 (1) (d) of the constitution and invalid,” he said.
The activist said it is in the public record that Kasukuwere has been away for over a year.
In his judgement, Mangota said Kasukuwere should stop masquerading as a presidential candidate, adding that he was not taking sides.
“An election is, by its nature, a very emotive subject. Once it is at hand, people push and shove each other. They do so with one object in mind.
“They do so to either get into, or deny others from, entering or participating in the electoral race. More often than not the protagonists fail to find each other. Where such occurs, they take each other to court which will resolve the dispute between them. The court takes no side.
“All it does is to listen to the respective narratives of those who have approached it, the facts of each in particular, apply the relevant law to the same and render a decision which, in its view, accords with the applicable law. In this jurisdiction, a judicial officer wears two hats during the period which leads onto, during and after an election,” he said.
The judge said Kasukuwere should have produced his passport to confirm that he was not out of the country for over 18 months.
“A passport is a national document which is specific to its holder. It is not accessible to Mangwana or to any person who has no business with it. Nothing, therefore, prevented Kasukuwere, its holder, from availing a certified copy of the same to me as a way of showing the veracity of his assertions.
“Surely as a person who is aspiring to the highest office on the land, he could easily have dispelled the omnious allegation as a result of which he would have acquitted himself well. He would, by the stated process, have shown the date(s) that he left Zimbabwe going for treatment as well as the date(s) that he returned to Zimbabwe and, therefore, to his constituency.
“His failure to produce his passport leaves his case hanging in the balance, so to speak. His non-disclosure of the correct circumstances of his side of the case leaves me with no option but to draw an adverse inference against him.
“Against him because he has at his disposal what it takes to unravel the truth of what is alleged against him. I, on the basis of the foregoing, therefore, find that Kasukuwere was out of Zimbabwe, and therefore out of his constituency, for a continuous period of more than eighteen months,” he ruled. — STAFF WRITER.