News / National
Chamisa's Bulawayo faction dealt a huge blow
30 Aug 2019 at 08:03hrs | Views
THE High Court yesterday nullified the election into council of beleaguered Bulawayo deputy Mayor, Councillor Tinashe Kambarami the leader of a Nelson Chamisa led faction in the city.
The ruling by Bulawayo High Court judge, Justice Thompson Mabhikwa, followed an application by 1893 Mthwakazi Restoration Movement Trust, through its lawyer Mr Godfrey Nyoni of Moyo and Nyoni Legal Practitioners seeking an order nullifying the Kambarami's election as councillor for Ward 3 and the city's deputy Mayor.
In papers before the court, Kambarami, the Bulawayo City Council, Zimbabwe Electoral Commission (Zec) and MDC were cited as respondents.
Justice Mabhikwa ruled that the election of Kambarami was in violation of section 119 (2) (e) of the Electoral Act following his conviction of theft. Kambarami was in July last year convicted of theft by Bulawayo provincial magistrate, Ms Sharon Rosemani, under case number CRB 1981/18. He was fined $80 or 18 days in prison for stealing an extension cord from an electrician he had hired to work at his offices.
"It is the court's finding that once the first respondent (Kambarami) was convicted of theft on 27 June 2018, which was before the election day, he was obliged, not only by his conscience and inner conviction, but also by the law, to advise the third respondent (MDC-Alliance) and even fourth respondent (Zec) that he was no longer eligible to stand for a public office," said Justice Mabhikwa.
He said Kambarami's failure to notify his party and Zec was in itself an act of dishonesty and an illegality, which rendered his subsequent election a nullity.
"I am convinced therefore that indeed in this case, it is not the outcome of the election results that is being challenged but simply the first respondent's suitability to hold public office wherein he may especially in the office of deputy mayor, be called upon at some stage or another, to deal with public finances or assets," said Justice Mabhikwa.
"Clearly, this court cannot, as it were, and in the circumstances bury its head in the sand and pretend that nothing happened. It would run the risk of setting a precedent that is very bad at law." Justice Mabhikwa said the court cannot condone an illegality with a limited mental vision following a criminal offence.
"The court has to protect the rule of law and doctrine of legality. Accordingly, it be and is hereby declared that the election of first respondent as councillor for ward 3 in Bulawayo was in contravention of section 119 (2) (e) of the Electoral Act following his conviction of theft at the Bulawayo magistrate's court under CRB number 1981/18 on 27 June 2018. It (Kambarami's election) is therefore set aside on account of it being null and void and his unsuitability to hold public office," ruled the judge. Justice Mabhikwa ordered Kambarami to pay the costs of suit on an ordinary scale.
In its application, 1893 Mthwakazi Restoration Movement Trust sought an order declaring Kambarami's nomination and subsequent election as councillor for Ward 3 in Bulawayo null and void on the basis that he was convicted for stealing an extension cord from an electrician he had hired to do manual work at his offices.
In her founding affidavit, Ms Dorothy Ndlovu, who is the applicant's secretary, said the application is premised on the provisions of the Electoral Act which disqualify a convicted person from being nominated as a candidate for council elections.
"It has come to our attention as an organisation that the first respondent (Clr Kambarami) has a criminal record and should not have submitted his nomination papers to Zec.
"He was charged and convicted of theft on July 27, 2018 under case number CRB1981/18," she said.
Ms Ndlovu said as an organisation they could not sit back and watch an illegality being perpetuated. According to section 119 (2) (e) of the Electoral Act, a person shall be disqualified from being nominated as a candidate for or from election as a councillor if he or she has been convicted of an offence involving dishonesty.
Kambarami was convicted on his own plea of guilty to theft.
Mr Nyoni said the election of Kambarami as councillor and deputy mayor was a nullity right from the onset.
He said the law disqualified Kambarami and whatever then happened thereafter was not in terms of the law.
"Kambarami failed to disclose his criminal record to Zec prior to his nomination in the run up to the July 30 harmonised elections," he said.
Mr Nyoni said 1893 Mthwakazi Restoration Movement Trust represents citizens of this country who have a direct interest in this matter since it is in the interest of the public and their constitutional right. He said Kambarami was given a chance to voluntarily relinquish his posts as councillor and deputy mayor and he declined.
Kambarami's lawyers, Messrs Dickson Moyo and Maqhawe Ndlovu of Samp Mlaudzi and Partners, argued that the High Court had no locus standi to handle the matter, arguing that the application was an election petition.
They said the application was a petition, which was supposed to be heard by the Electoral Court as defined in terms of the Electoral Act.
"The Electoral Court, which existed through the General Notices, expired on December 31, 2018, and extending its tenure through this court would be improperly constituted," said Kambarami's lawyers.
They further argued that there has to be a tribunal that was set in terms of section 174 of the constitution to handle the disqualification of Kambarami. Section 41 (7) of the Urban Councils Act states that a councillor who is convicted of an offence and sentenced to imprisonment for a period of six months or more shall forthwith cease to exercise his or her functions or to be entitled to any remuneration as a councillor, and subject to subsection (8), he or she shall cease to be councillor at the expiry of 30 days from the date of such sentence.
On August 1, 2017, Kambarami engaged the complainant, Mr Washington Chirikuudzi (68), to do some manual work at his offices. Kambarami then asked the complainant to leave his tools at his offices inside a safe before knocking off. When the complainant returned the following morning, he discovered that his extension cord was missing. When Mr Chirikuudzi inquired about the whereabouts of his cable, Kambarami admitted that he took it and promised to return it.
However, Kambarami did not return the cable despite pleas from the complainant. Mr Chirikuudzi reported the matter to the police leading to Kambarami's arrest. Kambarami was elected deputy mayor in September last year after beating his closest rival, Clr Mlandu Ncube of Ward One.
The ruling by Bulawayo High Court judge, Justice Thompson Mabhikwa, followed an application by 1893 Mthwakazi Restoration Movement Trust, through its lawyer Mr Godfrey Nyoni of Moyo and Nyoni Legal Practitioners seeking an order nullifying the Kambarami's election as councillor for Ward 3 and the city's deputy Mayor.
In papers before the court, Kambarami, the Bulawayo City Council, Zimbabwe Electoral Commission (Zec) and MDC were cited as respondents.
Justice Mabhikwa ruled that the election of Kambarami was in violation of section 119 (2) (e) of the Electoral Act following his conviction of theft. Kambarami was in July last year convicted of theft by Bulawayo provincial magistrate, Ms Sharon Rosemani, under case number CRB 1981/18. He was fined $80 or 18 days in prison for stealing an extension cord from an electrician he had hired to work at his offices.
"It is the court's finding that once the first respondent (Kambarami) was convicted of theft on 27 June 2018, which was before the election day, he was obliged, not only by his conscience and inner conviction, but also by the law, to advise the third respondent (MDC-Alliance) and even fourth respondent (Zec) that he was no longer eligible to stand for a public office," said Justice Mabhikwa.
He said Kambarami's failure to notify his party and Zec was in itself an act of dishonesty and an illegality, which rendered his subsequent election a nullity.
"I am convinced therefore that indeed in this case, it is not the outcome of the election results that is being challenged but simply the first respondent's suitability to hold public office wherein he may especially in the office of deputy mayor, be called upon at some stage or another, to deal with public finances or assets," said Justice Mabhikwa.
"Clearly, this court cannot, as it were, and in the circumstances bury its head in the sand and pretend that nothing happened. It would run the risk of setting a precedent that is very bad at law." Justice Mabhikwa said the court cannot condone an illegality with a limited mental vision following a criminal offence.
"The court has to protect the rule of law and doctrine of legality. Accordingly, it be and is hereby declared that the election of first respondent as councillor for ward 3 in Bulawayo was in contravention of section 119 (2) (e) of the Electoral Act following his conviction of theft at the Bulawayo magistrate's court under CRB number 1981/18 on 27 June 2018. It (Kambarami's election) is therefore set aside on account of it being null and void and his unsuitability to hold public office," ruled the judge. Justice Mabhikwa ordered Kambarami to pay the costs of suit on an ordinary scale.
In its application, 1893 Mthwakazi Restoration Movement Trust sought an order declaring Kambarami's nomination and subsequent election as councillor for Ward 3 in Bulawayo null and void on the basis that he was convicted for stealing an extension cord from an electrician he had hired to do manual work at his offices.
In her founding affidavit, Ms Dorothy Ndlovu, who is the applicant's secretary, said the application is premised on the provisions of the Electoral Act which disqualify a convicted person from being nominated as a candidate for council elections.
"It has come to our attention as an organisation that the first respondent (Clr Kambarami) has a criminal record and should not have submitted his nomination papers to Zec.
"He was charged and convicted of theft on July 27, 2018 under case number CRB1981/18," she said.
Ms Ndlovu said as an organisation they could not sit back and watch an illegality being perpetuated. According to section 119 (2) (e) of the Electoral Act, a person shall be disqualified from being nominated as a candidate for or from election as a councillor if he or she has been convicted of an offence involving dishonesty.
Kambarami was convicted on his own plea of guilty to theft.
Mr Nyoni said the election of Kambarami as councillor and deputy mayor was a nullity right from the onset.
He said the law disqualified Kambarami and whatever then happened thereafter was not in terms of the law.
"Kambarami failed to disclose his criminal record to Zec prior to his nomination in the run up to the July 30 harmonised elections," he said.
Mr Nyoni said 1893 Mthwakazi Restoration Movement Trust represents citizens of this country who have a direct interest in this matter since it is in the interest of the public and their constitutional right. He said Kambarami was given a chance to voluntarily relinquish his posts as councillor and deputy mayor and he declined.
Kambarami's lawyers, Messrs Dickson Moyo and Maqhawe Ndlovu of Samp Mlaudzi and Partners, argued that the High Court had no locus standi to handle the matter, arguing that the application was an election petition.
They said the application was a petition, which was supposed to be heard by the Electoral Court as defined in terms of the Electoral Act.
"The Electoral Court, which existed through the General Notices, expired on December 31, 2018, and extending its tenure through this court would be improperly constituted," said Kambarami's lawyers.
They further argued that there has to be a tribunal that was set in terms of section 174 of the constitution to handle the disqualification of Kambarami. Section 41 (7) of the Urban Councils Act states that a councillor who is convicted of an offence and sentenced to imprisonment for a period of six months or more shall forthwith cease to exercise his or her functions or to be entitled to any remuneration as a councillor, and subject to subsection (8), he or she shall cease to be councillor at the expiry of 30 days from the date of such sentence.
On August 1, 2017, Kambarami engaged the complainant, Mr Washington Chirikuudzi (68), to do some manual work at his offices. Kambarami then asked the complainant to leave his tools at his offices inside a safe before knocking off. When the complainant returned the following morning, he discovered that his extension cord was missing. When Mr Chirikuudzi inquired about the whereabouts of his cable, Kambarami admitted that he took it and promised to return it.
However, Kambarami did not return the cable despite pleas from the complainant. Mr Chirikuudzi reported the matter to the police leading to Kambarami's arrest. Kambarami was elected deputy mayor in September last year after beating his closest rival, Clr Mlandu Ncube of Ward One.
Source - chronicle
