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Fidelis Munyoro
Chief Court Reporter
The Constitutional Court yesterday declined to grant independent presidential candidate Mr Saviour Kasukuwere direct access to argue against a Supreme Court ruling validating the High Court decision disqualifying him from contesting the August 23 harmonised elections.
The court ruled that Mr Kasukuwere failed to show that the Supreme Court erred and that his application was simply a disguised appeal against a decision of the superior court. Three Constitutional Court judges that heard his initial application for access unanimously agreed that his attempt to have a Constitutional Court hearing was simply a disguised appeal against the decision of the Supreme Court, whose decisions are final on matters of law and fact and so not subject to appeal.
The judges are Deputy Chief Justice Elizabeth Gwaunza, Justice Paddington Garwe and Justice Rita Makarau.
After hearing submissions from both parties’ counsel, the judges unanimously agreed that the “application is a disguised appeal against the judgment of the Supreme Court and is consequently not properly before the court and is therefore dismissed with no costs”, said the Deputy Chief Justice reading the operative part of the judgment.
Under Zimbabwean law the Constitutional Court is not a court of final appeal. That is the function of the Supreme Court.
The Constitutional Court only decides constitutional issues and cases, including where necessary having to confirm or reject provisional constitutional findings by a lower court during criminal or civil cases, and such findings had not formed part of Mr Kasukuwere’s case and his appeal.
The Constitutional Court in most circumstances has to first approve applications for a hearing, to avoid non-constitutional matters coming before it or to prevent simple vexatious cases.
Mr Kasukuwere had his nomination accepted by the Nomination Court, but this was challenged in an urgent civil case in the High Court resulting in him being disqualified from contesting the election on the grounds he was no longer on the voters roll, an essential qualification.
He instantly appealed to the Supreme Court which heard the appeal as a matter of urgency, but Mr Kasukuwere again lost.
The High Court judgment endorsed by the Supreme Court was based on a factual finding after all evidence was led that Mr Kasukuwere had been out of Zimbabwe for more than 18 months, without even a brief return that could be as little as say just a night and which would restart the clock.
The second factual finding was that his absence was not covered by one of the accepted reasons such as prolonged medical attention or State service.
The legal findings were that the Electoral Act said a voter absent for 18 months from their constituency was removed from the voters roll and that any candidate for election had to be on the national voters roll to stand for President.
The Supreme Court agreed with both the factual findings and the legal interpretation of what is the law as it now stands.
Since judgments of the Supreme Court on either ground cannot be appealed because they are final, this meant that any approach to the Constitutional Court had to be based on an argument that at least one of the two legal provisions in the Electoral Act violated his constitutional rights and so could not be applied but the Constitutional Court found that his approach was just an attempt to appeal the unappealable decision of the Supreme Court.
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