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Mangota judgement badly flawed



THE High Court judgement disqualifying independent candidate Saviour Kasukuwere from running for president has come under scrutiny, with an analysis by legal grouping Veritas unearthing serious defects and errors which were overlooked in last week’s ruling by Justice David Mangota, The NewsHawks can report.


Kasukuwere has been locked in a legal wrangle with Zanu PF activist Lovedale Mangwana, which saw him being temporarily disqualified as a candidate, before a successful appeal to the Supreme Court by lawyer Harrison Nkomo which suspended the ruling.

This week, Kasukuwere’s legal team filed another application to have the judgement overturned, saying it has since emerged that Justice Mangota was given a house by the state prior to the judgment, which may have influenced the decision to disqualify him.

An analysis by Veritas this week has shown more defects that were overlooked in last week’s ruling by the High Court.

“In the ruling, judge Mangota looked first at section 23(3) which provides as follows: ‘A voter who is registered on the voters’ roll for a constituency . . . shall not be entitled to have his or her name retained on such roll if, for a continuous period of eighteen months, he or she has ceased to reside in that constituency’.”

“The judge said the object of this section was to ensure that only persons familiar with issues affecting Zimbabwe should have a right to vote or be voted into office; persons who had been away from their constituencies or from the country for more than 18 months should be disenfranchised.  

“The section, he considered, gave the applicant (Mangwana) a right to approach the court for an order preventing someone such as Mr. Kasukuwere from contesting an election if he had been outside the country continuously for more than 18 months,” read the analysis.

“The onus was on Mr Kasukuwere to prove when and why he left Zimbabwe.  He had failed to discharge that onus even though he could have done so quite easily. As a result, the judge held, the application should be granted.

Using the provision, the judge reversed the nomination court’s decision to accept Kasukuwere’s nomination papers, saying it violated section 91(1) of the constitution as well as the applicant’s constitutional rights under sections 56(1) and 67(2)(a) and (3)(a) of the constitution.

Section 91 (1) says a person qualifies for election as president if they are resident in Zimbabwe.  The ruling would also bar Zec from placing Kasukuwere’s name on the presidential ballot papers, thereby nullifying his presidential candidature.

According to Veritas, the ruling handed by Mangota is wrong on several counts.

“Section 23(3) of the Electoral Act says that voters ‘shall not be entitled’ to have their names retained on a roll if they have been absent for 18 months or more.  It does not say that they automatically cease to be registered on the roll.  On the contrary, sections 27 and 28 of the Act lay down procedures to be followed before voters’ names can be removed from a roll:
“Under section 27, a voter registration may remove a voter’s name, but only after sending the voter written notice and giving the voter an opportunity to appeal to a designated magistrate and, if dissatisfied by the magistrate’s ruling, to the Electoral Court.

“Under section 28, a voter may object to the retention of a person’s name on a roll in which the other registered, and the voter registration officer may remove the person’s name, but again only after the person has been notified and given an opportunity to appeal to a designated magistrate.”

Veritas says the Electoral Act does not give the High Court or the Electoral Court power to remove a person’s name from a roll unless these procedures have been followed.

“Furthermore, the onus was on the applicant to show on a balance of probability that Mr Kasukuwere had been absent from his constituency for more than 18 months. He made the allegation and he had to prove it, by showing that Mr Kasukuwere had been living in South Africa or elsewhere in Zimbabwe; he did not have to prove a negative, as the judge apparently thought,” Veritas said.

“In any event this was a case where there was a material dispute of fact about where Mr Kasukuwere had been living, and the dispute could not be resolved on the papers.”
Veritas said the court had at least two options: “To refer the matter for trial so that the dispute could be resolved by oral evidence;

“To dismiss the case. This would have been the more appropriate option, because the applicant should have foreseen that the dispute would arise.”

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