INDEPENDENT presidential candidate Saviour Kasukuwere says Chief Justice Luke Malaba has violated the constitution by failing to follow due process in throwing out his Constitutional Court application for leave to appeal the decision disqualifying him as a candidate, which renders the elections unfair.
On Wednesday, Chief Justice Malaba declined Kasukuwere’s urgent Constitutional Court application upholding an earlier High Court judgement dismissing him from the 23 August presidential race.
Last month, High Court judge David Mangota disqualified Kasukuwere from the election at the behest of Zanu PF activist Lovedale Mangwana who claimed the former Zanu PF MP and minister is no longer a registered voter since he has been out of the country for 18 consecutive months and thus cannot be a candidate.
Malaba said given the stage where the electoral process now is, he cannot allow Kasukuwere’s urgent application to be heard in the ConCourt on the eve of elections.
“The application in terms of Rule 15 (1) of the Constitutional Court Rules SI 61 of 2016 for an urgent hearing of the application for leave to appeal against the decision of the Supreme Court in case SC78/23 is declined for the following reasons.
“The stages reached in the electoral process provided for under the Constitution and the Electoral Law, the imminence of the election on August 2023 and the nature of the matters for the determination in the application for the leave of appeal militate against a decision that the application for the leave to appeal be considered an urgent application.
“The effect of the decisions of the subordinate courts is that the electoral processes currently underway are lawful. The application for leave to appeal should in the circumstances follow the ordinary procedures prescribed by the rules of the court,” reads the letter dated 16 August.
In a statement addressed to election observer missions this week, Kasukuwere, who was widely regarded as the X-factor of the upcoming polls, says Malaba had no jurisdiction to throw out his application, as due process had not been followed.
“The Chief Justice only wrote to our lawyers on the 16th of August 2023, stating that the elections were imminent and, as such, our application could not be heard. He did so in his chambers without setting down the matter and in our absence.
“The CCZ 39-23 case needed a bench of judges, rather than just the Chief Justice, to decide if Judge Mangota’s High Court ruling was procedural. It was unjust for the Chief Justice to take charge of the court application and make a decision under the guise of giving directions.
“By coincidence or design, on the 16th of August 2023, the Chief Justice said the same application could not be heard as the elections were imminent and the election processes had been done,” reads the statement.
Kasukuwere says Chief Justice Malaba’s actions violate section 167 (3) (b) which provides that cases concerning infringement of fundamental rights should be heard by at least three judges.
It reads: “Cases before the Constitutional Court— (a) concerning alleged infringements of a fundamental human right or freedom enshrined in Chapter 4, or concerning the election of a President or Vice-President, must be heard by all the judges of the Court; (b) other than cases referred to in paragraph (a), must be heard by at least three judges of the Court.”
Kasukuwere said by denying him a hearing, the Chief Justice seized the powers of the court, violating section 44 of the constitution, giving an upper hand to Mangwana. According to the constitutional provision, the state, including juristic persons and every institution and agency of the government must respect and fulfill the rights and freedoms set out in the Bill of Rights.
“The correspondence proceeds to say that the High Court in EC 10-23 made factual findings, a determination of a matter as opposed to giving directions. We take the view that directions are there to help litigants proceed in a certain way and not to preempt and dispose of matters in the manner that was done.
“The imminence of the election is neither here nor there. It cannot be an excuse for the Chief Justice to abdicate his judicial function and usurp the powers of a “court” in chambers leading to a violation of Saviour Kasukuwere’s constitutionally entrenched rights.
“Given the nature of the application, only a minimum of three Constitutional Court judges could competently deal with the matter and not vice versa. The Chief Justice had no jurisdiction to act as he did. It is unheard of, and no statute justifies such a bold judicial overreach and activism,” read the statement.
Kasukuwere’s legal team says the High Court and Supreme Court judgments have been seriously flawed as they take away his fundamental right of equal protection before the law and his right to participate in an election and subsequently to hold office when elected as set out in section 67 (3) (b) of the constitution.
“Both the High Court and the Supreme Court having decided on the substantive question which forms the basis of the allegation that the judgment of the Supreme Court breaches the applicant’s right to equal protection and benefit off the law and political rights . . . It is thus in the interests of justice that direct access be allowed.
“The question arising from the determination is one that is key in our jurisprudence. The question is whether or not the Applicant properly and constitutionally disqualified per section 91 (1) c) and (d) of the Constitution read together with paragraph 1 (2) of the fourth schedule of the Constitution of Zimbabwe 2013 read together with section 23 (3) of the Electoral Act.”