ELECTION COURT WATCH 1/2023

[17th July 2023]

Questionable Disqualification of Mr Kasukuwere as Presidential Candidate

Introduction

On the 12th July the High Court issued an order setting aside the nomination of Mr Saviour Kasukuwere as a presidential candidate in the August general election.  The court’s judgment can be accessed on the Veritas website [link] and we shall analyse it in this bulletin.

Background to the Case

Mr Kasukuwere was a Minister in former President Mugabe’s government until November 2017 when Mr Mugabe was compelled to resign and Mr Kasukuwere left the country in fear for his life.  He returned later but for some time now he has been living in South Africa.  Earlier this year he announced that he intended to stand as a candidate for President in the August general election, and on the 21st June his agents presented his nomination papers at the nomination court in Harare.  His nomination was accepted [which means Zimbabwe Electoral Commission [ZEC] must have checked that his name was on the voters roll] and his name duly appeared on the list of presidential candidates published by ZEC on the 30th June.

A Mr Lovedale Mangwana challenged the nomination.  He filed an urgent application in the High Court for an order that Mr Kasukuwere was disqualified for nomination as a candidate in terms of section 91 of the Constitution since he was not a registered voter, having been out of the country for more than 18 consecutive months.  The High Court heard the application on the 7th July and, as we have said, granted it on the 12th.

The Parties’ Arguments

The applicant’s argument

According to the Judge, the applicant’s argument was essentially that Mr Kasukuwere had been absent from his constituency for more than 18 months and as a consequence:

• He was no longer a registered voter because section 23(3) of the Electoral Act states:
• “A voter who is registered on the voters roll for a constituency … shall not be entitled to have his or her name retained on such roll if, for a continuous period of eighteen months, he or she has ceased to reside in that constituency”.
• He was not qualified to be elected as President because section 91(1)(d) of the Constitution states:

“A person qualifies for election as President … if he or she—

 …

 (d) is registered as a voter.”

Since he was not registered as a voter he was disqualified from being elected as President and should not have been nominated.

The applicant claimed that by accepting the nomination papers of an unqualified candidate, the nomination court had infringed his (the applicant’s) constitutional rights, namely:

• his right under section 56(1) of the Constitution to equal protection and benefit of the law, and
• his rights under section 67 of the Constitution to free, fair and regular elections and to participate in peaceful activities to influence or support the policies of the Government or any other cause.

We shall comment on the applicant’s case later, but here we should note that he did not offer evidence to support his assertion that Mr Kasukuwere had been absent from his constituency for more than 18 months.

Mr Kasukuwere’s argument

Mr Kasukuwere opposed the application on the merits.  He denied that he had been absent from his constituency for more than 18 months, though he admitted he had left the country temporarily for medical reasons, and claimed that he resides at a local address.  He challenged the applicant to prove the contrary.

He also raised some preliminary points which the judge dismissed, not very convincingly, before going on to deal with the main issue.

Two of these preliminary points are worth mentioning.

The Preliminary Points

1. The Jurisdiction of the High Court

Mr Kasukuwere’s lawyer argued that the application should have been filed in the Electoral Court; he suggested that the High Court did not have power to hear the application since section 161 of the Electoral Act gives the Electoral Court exclusive jurisdiction to deal with appeals, applications and petitions in terms of the Act.  The judge dismissed this argument on the ground that section 171(1) of the Constitution gives the High Court full jurisdiction over all civil and criminal matters in Zimbabwe.

Comment:  Section 161 of the Electoral Act was amended in 2018 to make the Electoral Court a specialised division of the High Court, which means that the Electoral Court is part of the High Court and can exercise all the general jurisdiction of the High Court (section 171(3) of the Constitution).  The judge does not seem to have been aware of this amendment, though he would have been had he consulted Veritas’s consolidated and updated version of the Electoral Act [link].  Furthermore the judge was appointed as a judge of the Electoral Court Division at the beginning of June – see GN 970 of 2023 [link].  So perhaps the application was really being heard by the Electoral Court after all.

2. The Applicant’s Locus Standi

Mr Kasukuwere’s lawyer challenged the applicant’s locus standi – his right to bring the case to court.  The judge dismissed the challenge by taking what he called a liberal, wide or dynamic approach to locus standi which would enhance the protection and promotion of human rights, the rule of law, due process and access to justice.  On this approach, he said, an applicant who alleged his constitutional rights had been infringed had the right to take cases in the public interest.

Comment:  A liberal approach to locus standi is to be welcomed because all too often our courts have non-suited applicants in public interest cases on the ground that they have no substantial interest in the matter.  That said, the applicant’s right to bring this case seems slender, to say the least.  It is hard to see how Mr Kasukuwere’s candidacy infringed the applicant’s right to equal protection of the law under section 56 of the Constitution, as he alleged, or how it infringed his right to free, fair and regular elections under section 67.

Having dealt with the preliminary points, the judge turned to the main issue in the case, namely whether Mr Kasukuwere was qualified to be a presidential candidate.

The Judgment on the Main Issue

To decide the main issue, the judge looked first at section 23(3) of the Electoral Act which as we noted earlier provides as follows:

“A voter who is registered on the voters roll for a constituency … shall not be entitled to have his or her name retained on such roll if, for a continuous period of eighteen months, he or she has ceased to reside in that constituency”.

The judge said the object of this section was to ensure that only persons familiar with issues affecting Zimbabwe should have a right to vote or be voted into office;  persons who had been away from their constituencies or from the country for more than 18 months should be disenfranchised.  The section, he considered, gave the applicant a right to approach the court for an order preventing someone such as Mr Kasukuwere from contesting an election if he had been outside the country continuously for more than 18 months.

Whether Mr Kasukuwere had indeed been outside the country for that period was a matter of evidence, the judge said, and the applicant could not be expected to prove it because it would entail proving a negative – that Mr Kaukuwere had not been in Zimbabwe.  Hence the onus was on Mr Kasukuwere to prove when and why he left Zimbabwe.  He had failed to discharge that onus even though he could have done so quite easily.

As a result, the judge held, the application should be granted.  He accordingly:

• Declared that the nomination court’s decision to accept Mr Kasukuwere’s nomination papers violated section 91(1) of the Constitution as well as the applicant’s constitutional rights under sections 56(1) and 67(2)(a) and (3)(a) of the Constitution.  It was therefore set aside
• Prohibited ZEC from putting Mr Kasukuwere’s name on the presidential ballot papers, and
• Prohibited Mr Kasukuwere from holding himself out as a presidential candidate.

With respect, the Judgment is Wrong on Several Counts.

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.
• Under section 28, a voter may object to the retention of a person’s name on a roll in which the voter is 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.

The Electoral Act does not give the High Court or the Electoral Court power to remove a person’s name from a roll unless these procedures have been followed.

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.  In that event the court had at least two options:

To refer the matter for trial so that the dispute could be resolved by oral evidence, or

To dismiss the case.  This would have been the more appropriate option, because the applicant should have foreseen that the dispute would arise.

Subsequent Events

After the judgment was delivered, Mr Kasukuwere appealed to the Supreme Court.  The effect of the appeal is to suspend the judgment, so until the Supreme Court orders otherwise Mr Kasukuwere remains a presidential candidate.  The applicant has filed an application in the High Court for the judgment to be enforced pending appeal, but since the Supreme Court has indicated that it will hear Mr Kasukuwere’s appeal tomorrow he will probably not proceed with this application.

So politicians’ eyes now turn to the Supreme Court.  We shall report further progress in due course.