Kasukuwere Nomination High Court Judgement Flawed - Legal Watchdog
An analysis of the High Court judgement disqualifying independent candidate Saviour Kasukuwere from running for president by a legal watchdog, Veritas, this week has unearthed serious defects and errors by the presiding judge, Justice David Mangota.
ZANU PF activist Lovedale Mangwana approached the High Court seeking Kasukuwere’s disqualification from the presidential race.
Justice Mangota reversed the nomination court’s decision to accept Kasukuwere’s nomination papers, saying it violated the constitution.
Section 91 (1) says a person qualifies for election as president if they are resident in Zimbabwe.
According to Veritas, the ruling handed by Mangota is wrong on several counts. Veritas said:
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Section 23(3) of the Electoral Act 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 officer may remove a voter’s name, but only after sending the voter written notice and giving the voter an opportunity to appeal to a designated magistrate and, if dissatisfied with the magistrate’s ruling, to the Electoral Court.
Under section 28, a voter may object to the retention of a person’s name on a roll in which the other registered, and the voter registration officer may remove the person’s name, but again only after the person has been notified and given an opportunity to appeal to a designated magistrate.
Veritas further argued that the Electoral Act does not give the High Court or the Electoral Court power to remove a person’s name from the voters’ roll unless these procedures have been followed. It said:
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.
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’s lawyers appealed Justice Mangota’s ruling at the Supreme Court and the matter is yet to be determined
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