News / National
Kasukuwere nullification debate rages on
19 Jul 2023 at 01:49hrs | Views
LEGAL think-tank Veritas says a High Court judgment which nullified exiled former Cabinet minister Saviour Kasukuwere's nomination was "wrong on several accounts".
High Court judge Justice David Mangota nullified Kasukuwere's candidacy following an application by Zanu-PF activist Lovedale Mangwana.
In his founding affidavit, Mangwana said the Electoral Act did not allow a candidate who had been out of the country for over 18 months to contest for Presidency.
The court agreed with Mangwana's assertion that Kasukuwere had been out of the country for over 18 months prior to filing his nomination papers on June 21.
Kasukuwere fled the country during the 2017 coup that removed the late former President Robert Mugabe.
He, however, briefly returned and appeared in court facing four counts of criminal abuse of office charges, some of which were dismissed and he again left the country soon after.
In its latest Election Watch publication, Veritas said voter registration may remove a voter's name, but only after sending the concerned individual a written notice.
"With respect, the judgment is wrong on several accounts," Veritas said.
"Section 23(3) of the Electoral Act, which we quoted earlier, 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 a 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."
Veritas said the Electoral Act did not give the High Court or the Electoral Court power to remove a person's name from a roll unless it had given the concerned individual a notice.
Veritas says the High Court had an option to take the matter to trial to resolve the dispute of whether or not Kasukuwere had been outside the country for 18 consecutive months.
"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," Veritas said.
"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.
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."
Kasukuwere has challenged the High Court ruling at the Supreme Court.
The matter was supposed to be heard yesterday, but Supreme Court judges Justices Chinembiri Bhunu, George Chiweshe and Susan Mavangira ordered that the matter be heard on an urgent basis tomorrow.
The three judges also ordered the applicant to file his papers by yesterday, with the respondents given until today to lodge their papers.
Mangwana cited Kasukuwere, the Zimbabwe Electoral Commission and Justice minister Ziyambi Ziyambi as respondents.
High Court judge Justice David Mangota nullified Kasukuwere's candidacy following an application by Zanu-PF activist Lovedale Mangwana.
In his founding affidavit, Mangwana said the Electoral Act did not allow a candidate who had been out of the country for over 18 months to contest for Presidency.
The court agreed with Mangwana's assertion that Kasukuwere had been out of the country for over 18 months prior to filing his nomination papers on June 21.
Kasukuwere fled the country during the 2017 coup that removed the late former President Robert Mugabe.
He, however, briefly returned and appeared in court facing four counts of criminal abuse of office charges, some of which were dismissed and he again left the country soon after.
In its latest Election Watch publication, Veritas said voter registration may remove a voter's name, but only after sending the concerned individual a written notice.
"With respect, the judgment is wrong on several accounts," Veritas said.
"Section 23(3) of the Electoral Act, which we quoted earlier, 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.
Veritas said the Electoral Act did not give the High Court or the Electoral Court power to remove a person's name from a roll unless it had given the concerned individual a notice.
Veritas says the High Court had an option to take the matter to trial to resolve the dispute of whether or not Kasukuwere had been outside the country for 18 consecutive months.
"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," Veritas said.
"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.
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."
Kasukuwere has challenged the High Court ruling at the Supreme Court.
The matter was supposed to be heard yesterday, but Supreme Court judges Justices Chinembiri Bhunu, George Chiweshe and Susan Mavangira ordered that the matter be heard on an urgent basis tomorrow.
The three judges also ordered the applicant to file his papers by yesterday, with the respondents given until today to lodge their papers.
Mangwana cited Kasukuwere, the Zimbabwe Electoral Commission and Justice minister Ziyambi Ziyambi as respondents.
Source - newsday
