FORMER Zanu PF youth leader, Jim Kunaka, has approached the Constitutional Court, challenging a High Court decision barring exiled former minister, Saviour Kasukuwere, from running in the August 23 presidential election.
Kasukuwere’s candidature was accepted by the nomination court on June 21,a month before it was revoked by High Court judge, Justice David Mangota.
Mangota made the ruling after Zanu PF activist, Lovedale Mangwana, approached the High Court challenging the former Local Government minister’s candidacy.
Mangwana argued that the Zimbabwe Electoral Commission (Zec) violated the Electoral Act by accepting Kasukuwere’s nomination papers yet he had been out of the country for over 18 months.
The former Zanu PF commissar appealed the ruling at the Supreme Court.
The Supreme Court on Friday, however, upheld Mangota’s ruling.
Kasukuwere, nicknamed Tyson, said they will challenge the latest ruling.
In his application seeking access to the ConCourt, Kunaka said Mangota’s ruling violated the constitutional right of voters to vote for their preferred presidential candidate.
“I nominated Saviour Kasukuwere as a presidential candidate. He was my candidate of choice,” Kunaka submitted.
“It is my respectful contention that the decision of the court in question infringes on my right to choose a candidate of my choice to participate freely in politics as protected by sections 58 and 67 of the constitution of Zimbabwe.”
“The judgement of the court was a constitutional judgement pursuant to an application made by the first respondent in terms of Section 85(1).
“I, therefore,seek direct access to this honourable court to set aside the judgement in question on the basis that my constitutional rights have been infringed.”
Kunaka said many Zimbabweans wanted to vote for Kasukuwere.
“There are millions of people who will vote in that election, and there are thousands who will vote for Kasukuwere,” Kunaka said.
“The court’s judgement, infringed on my rights—the rights of the thousands of Zimbabweans who will vote for him, the hundred or so persons that nominated him as myself."
Kunaka said barring Kasukuwere from participating in the elections will dent the credibility of electoral processes.
“It is, therefore, in the overwhelming interest of justice that the judgement be set aside and that he be allowed to stand as a candidate in the forthcoming election,” he submitted.
"Kasukuwere was not removed by the constituency registrar from the voters roll as defined in Section 33 of the Electoral Act.”
He added: “That being the case, the court could not move to act for and on behalf of the Zec in removing Kasukuwere when the nomination court had sat.”
"A free and fair election requires that individuals are allowed to choose their candidates and that those nominated to stand should be able to stand.”
Kunaka cited Mangwana, Kasukuwere, Zec, Justice minister Ziyambi Ziyambi, the Judicial Services Commission and Attorney General, Prince Machaya, as respondents.
Lawyers who spoke to The Standard said the ConCourt application was critical and urgent.
“The application by Kunaka doesn't stop the decision of the Supreme Court,” lawyer Dumisani Dube said.
“However, due to the importance of the matter in the constitutional jurisprudence of the country, the court may set the matter down urgently before the election date.
“I also think Kasukuwere should have been the one who approached the Constitutional Court, as he had a direct and substantial interest in the matter and not a third party, who might not have the locus standi."
Another lawyer, Nqobani Sithole said: “It’s not about the abuse of court processes, as it might appear, but the two different courts (High Court and ConCourt) deal with different issues.
“The High Court only deals with interpretation of the law and the ConCourt with constitutionality.”