CHIEF Justice Luke Malaba has dismissed without hearing an application by former Zanu PF youth leader, Jim Kunaka, who was seeking the reinstatement of self-exiled former minister, Saviour Kasukuwere, as a presidential candidate.
High Court judge Justice David Mangota disqualified Kasukuwere after ruling in favour of Zanu PF activist, Lovedale Mangwana, who had approached the court seeking the former Cabinet minister’s removal from the ballot paper.
Mangwana argued that the Zimbabwe Electoral Commission (Zec) had violated the Electoral Act by accepting his nomination papers when he had been absent from the country for 18 consecutive months.
He said Kasukuwere was, therefore, an unregistered voter.
Kasukuwere appealed to the Supreme Court, which upheld the ruling of the lower court.
This prompted Kasukuwere to approach the Constitutional Court (ConCourt), which denied him access saying the former Local Government minister was improperly before the court.
Kunaka had also approached the court seeking the reinstatement of Kasukuwere as a presidential candidate, saying disqualifying him infringed on his right to choose a candidate of his choice.
But before the case was heard, Kunaka was shocked to learn that his application had been dismissed without a hearing.
“Below are the directions from the Honourable Chief Justice pertaining to the above application,” ConCourt Registrar Anitha Tshuma wrote to Kunaka’s lawyers yesterday.
“The applicant (Kunaka) has made the application … for interim interdict stopping the third respondent from printing presidential ballot papers in the general election pending the determination of an application for direct access he has filed in the court.”
“There is, therefore, no basis on which the relief claimed by the applicant can be considered. In any case, the conduct of the third respondent is lawful. No interim interdict can be granted to stop a lawful conduct.”
Kunaka had cited Mangwana, Kasukuwere and Zec as respondents.
Kasukuwere has, however, filed a fresh appeal at the ConCourt against the Supreme Court ruling.
In the application, he wants the apex court not to confirm Mangota’s ruling on his candidacy.
Kasukuwere cited Mangwana, Zec and Justice minister Ziyambi Ziyambi as respondents. The former minister is seeking a declaration of constitutional invalidity in terms of section 15 of the ConCourt Rules.
In his notice to approach the ConCourt, he said he intended to apply to the court for the order in terms of the Draft Order which had not been confirmed.
The former minister said Zec had already printed the ballot papers for postal voting without his name, saying his case should be treated with urgency.
“If the current ballots are distributed to the electorate, the applicant’s right to protection of the law and to stand as a candidate (as provided for under s56(1), 67(2a), 67(3 Xa) and 67(3b) of the Constitution) will be incurably violated,” Kasukuwere’s lawyers submitted.
In another separate case, High Court judge Justice Tawanda Chitapi will tomorrow hear another application by Kasukuwere, where he is seeking nullification of Statutory Instrument 140A of 2023 on postal voting.
In the application, Kasukuwere cited Zec, Attorney-General, Ziyambi and President Emmerson Mnangagwa as respondents.
The parties yesterday met on a case management and the respondents will file their heads of arguments today.
Zec on August 3, 2023 gazetted SI 140 which amended section 75(1)(d) of the Electoral Act to allow the chief elections officer to receive postal votes not later than three days of the voting day instead of 14 days.
Kasukuwere says the SI violated section 157(5) of the Constitution, which states that after an election date has been proclaimed, no amendment will be made to the electoral law.
