EVEN though independent presidential election candidate Saviour Kasukuwere has been barred by the courts from contesting the 23 August election, he has managed to prove a point in a short space of time: President Emmerson Mnangagwa and his allies are scared of his influence in the race.
Kasukuwere scared the living daylights out of Mnangagwa, not because he would win the election, but he was the X Factor.
He would potentially sweep votes in his home region of Mashonaland Central province, and the neighbouring Mashonaland East and Mashonaland West provinces.
That made him a variable in the election that could have the most significant impact on the outcome.
The exiled former minister was one of a dozen candidates challenging president Emmerson Mnangagwa in the 23 August elections.
His removal from the ballot followed an application by a Zanu PF activist Lovedale Mangwana, who challenged Kasukuwere’s nomination, arguing that he ceased to be a registered voter having spent over 18 months outside the country.
High Court Justice David Mangota granted Mangwana’s application, ordering Kasukuwere to stop masquerading as a candidate.
Aggrieved, Kasukuwere took the matter up to the Supreme Court, arguing that the lower court had erred in disqualifying him from the presidential race.
However, a three-panel bench comprising Justices Antonia Guvava, Chinembiri Bhunu and Felistas Chatukuta trashed his appeal, ruling that it lacked merit.
“We carefully considered the evidence and oral submissions by both counsels. The court is of the firm view that the appeal lacks merit. The appeal be and is hereby dismissed with no order as to costs,” said the judges in a brief judgement on Friday.
Reasons for the dismissal of the appeal were not given.
However, Kasukuwere through his lawyers said he will fight on.
Kasukuwere said Zimbabwe is in a constitutional crisis, insisting that he has a right to challenge Mnangagwa.
“As a nation we are on the eve of a constitutional and electoral crisis,” said Method Ndlovu, his lawyer, soon after the ruling.
“We have the apex court, which is the Constitutional Court and we have received instructions from our client to take up the next available step in order to make sure that he remains on the ballot paper.
“So I wouldn’t say we are out of time in order to protect the best interests of our client. We didn’t sleep. We have papers in our bags and they will be filed,”he said.
Kasukuwere’s spokesperson Jacqueline Sande said it was disappointing that the judges did not give reasons for their ruling.
“We had expected the court to go into the full reasons of finding that the appeal lacks merit and we are disappointed that the reasons were not availed despite the fact the counsel spent a long time yesterday delivering their submissions. We expected that the court, with those submissions, would be able to give us sufficient reasons why they found the appeal lacks merit.
“This is definitely not the end of the road, we are still persisting to fight to be included to see president Saviour Kasukuwere included on that ballot.
“There is no such thing as running out of time when you are fighting for justice and fighting for democracy. It is president Saviour Kasukuwere’s constitutional right to stand as a presidential candidate as well as the right of citizens of the multitude of Zimbabweans who also want to vote for him,” she said.
Kasukuwere could not hide his disappointment.
“Disappointed, and we are now considering our next steps and will keep the nation informed. God bless,” he said soon after the ruling was made.
During the hearing, Mangwana’s lawyers Advocate Lewis Uriri and Edley Mubaiwa challenged the court’s jurisdiction to hear the appeal, but their application was thrown out.
“The appeal is in the wrong court and this court has no jurisdiction to hear the matter. It was a constitutional application because it raised a constitutional matter. The application was brought in terms of rule 107 which deals with constitutional matters in the High Court,” said Mubaiwa.
“The court a quo assumed jurisdiction and dealt with the matter as a constitutional application. Under such circumstances an appeal cannot come to the Supreme Court,” he added.
“We submit there is no jurisdiction on the part of the SC [Supreme Court]. The matter is therefore before the wrong court..It ought to be rejected,” he said.supporting his appeal, Kasukuwere’s lawyers, Welshman Ncube and Method Ndlovu also argued that the High Court had no jurisdiction to hear Mangwana’s challenge.
“Mangwana had no locus standi to challenge that the appellant was not a registered voter to present himself as a nomination candidate to the office of the President. The right to approach Zec is vested upon voters registered in the same constituency. A voter registered in Bulawayo cannot challenge the voter in Chimanimani. Voters are registered in constituencies and not the whole country in the first instance. I submit that in terms of the Electoral there was no locus standi…he had remedy in the Electoral Court and could have made the application in the Electoral Court. A voter cannot approach the HC [High Court] to remove someone’s candidacy,” said Ncube.
Ndlovu concurred, arguing that the High Court “embarked on a wrong query.. Absence does not mean one ceases to be a resident of Zimbabwe.
“The question is: Did he cease or was he absent and the judgement in the court a quo says absent throughout. He never ceased to be a resident so the court a quo embarked on a wrong query,” argued Ndlovu.
Kasukuwere is a former Zanu PF political commissar under the late strongman Robert Mugabe’s regime.
He fled the country following the November 2017 military coup which toppled Mugabe after he was accused of being one of the criminals surrounding the long-time ruler.
Kasukuwere was on trial over several criminal allegations when he left Zimbabwe, but charges against him were quashed by the High Court for lack of evidence.
When he went to South Africa, he told court that he was going to seek treatment for a heart ailment and he was never seen in Zimbabwe again.