ELECTION COURT WATCH 3/2023

[5th August July 2023]

Disqualification of Mr Saviour Kasukuwere as Presidential Candidate : Further Developments

Mr Saviour Kasukuwere, a Minister in the late Mr Mugabe’s government, was nominated as a presidential candidate in the forthcoming general election.  His nomination was challenged in the High Court on the ground that he was not qualified to be a candidate in terms of section 91 of the Constitution since he had been absent from his constituency for more than 18 months and so was not a registered voter.  The High Court agreed with the challenger and on the 12th July it set aside Mr Kasukuwere’s nomination and prohibited him from putting himself forward as a presidential candidate.

In Election Court Watch 1/2023 of the 17th July 2023 [link] we analysed the High Court’s judgment and said we considered it to be wrong on several counts, in particular that:

• Mr Kasukuwere’s name had not been removed from the voters roll in accordance with sections 27 and 28 of the Electoral Act, so he was still a registered voter, and
• The person who challenged the nomination did not put forward any evidence to show that Mr Kasukuwere had been absent from his constituency for 18 months.

The Appeal

Mr Kasukuwere appealed to the Supreme Court against the High Court’s judgment and his appeal was heard within a commendably short time.  On the 27th July the Court sat to hear argument from the parties’ legal practitioners, and it gave a ruling the next day.  The ruling was very brief:

“After carefully listening to the submissions yesterday, we are of the firm view that the appeal lacks merit.  The appeal is hereby dismissed with no order as to costs.”

Full reasons, the court said, would be delivered later.  No reasons have yet been forthcoming.

Applications to the Constitutional Court

Mr Kasukuwere now wants to apply to the Constitutional Court for an order setting aside the Supreme Court’s judgment on the ground that it infringes his right to equal protection of the law in terms of section 56(1) of the Constitution.  Before he can do so he must get leave from the Court [or from a judge of the Court if the Chief Justice so directs], and he has filed papers seeking such leave.  His application will be heard on Tuesday next week.

A similar application has been filed with the Court by a Mr Jim Kunaka, one of Mr Kasukuwere’s nominees, who also wants the Supreme Court’s judgment set aside.  His application has not yet been heard.

Comment

The courts’ rejection of Mr Kasukuwere’s nomination has been strongly criticised, and not just by his supporters.  It has even been alleged that the rulings against him are part of a campaign by the Government to disqualify opposition candidates, a campaign in which the courts are complicit.

In a probable attempt to answer the criticism the Chief Justice said recently at a judicial symposium that judges are apolitical and are ruled by the law alone.  Judicial decisions, he said, are based on facts and the rule of law.  Worthy sentiments, no doubt, but his words would have carried more weight if the Supreme Court had issued a reasoned judgment when it dismissed Mr Kasukuwere’s appeal, rather than a brief statement that the appeal lacked merit.  The rule of law, which the Chief Justice invoked, requires judicial officers to give reasons for their decisions.  In the absence of reasons people can only speculate why a particular decision was reached, and judges who fail to give reasons should not be surprised if, in the partisan atmosphere of an election period, people impute partisan motives to them.