By Prof Jonathan Moyo | COMMENT | Following an eagerly awaited hearing this morning before a three member bench led by Deputy Chief Justice Elizabeth Gwaunza sitting with Justices Paddington Garwe and Rita Makarau, the Constitutional Court this afternoon dismissed with no order as to costs Saviour Kasukuwere’s application for direct access, to set aside a Supreme Court judgment, that upheld the nullification of his nomination as a presidential candidate by the Harare High Court.

Basing its ruling on a debatable technicality, the bench said through Justice Gwaunza’s it found that Kasukuwere’s application for direct access was in fact a disguised appeal, and on that score ruled that the application was therefore not properly before the Court.

Sadly, the fact that the matter has been decided on debatable technicalities – some of them manifestly dubious – from the High Court, to the Supreme Court, and finally in the Constitutional Court today, leaves unresolved the substantive and critical questions arising from the case regarding:

(i) the constitutionality of section 23(3) of the Electoral Act as a cessation provision on voter deregistration by operation of law;

(ii) the protection of the right to vote enshrined in section 67 of the Constitution; and,

(iii) the meaning of “ordinarily resident in Zimbabwe” in section 91(1)(c) of the Constitution.

The jury is still out on these very fundamental and important questions whose implications are far reaching, as they affect and impact not just on Kasukuwere but also on millions of registered voters in the country, and in the Diaspora; as well as on citizens by birth who have dual citizenship all who, at any given time, are never resident in Zimbabwe for a continuous period of 18 months at constituencies where they’re registered to vote.

Responding to the ruling, Kasukuwere posted on X – formerly Twitter – that the Constitutional Court opened a new avenue to appeal the Supreme Court, saying:

“We have noted the judgement and interestingly it opens new avenues for us to appeal the SC judgement and luckily we are still within time. As long as the court rooms are open, it’s game on until the Fat lady sings. Prof Wel Ncube, Adv Method Ndhlovu, Adv Mutero and team well done. Battles are lost but not the WAR. We fight on”.

But, realistically looking at everything about the case, and with only 15 days to go before polling day, time is no longer on the side of open ended court battles.

Already, ballot printing and postal voting have been compromised by inconclusive nomination challenges in the courts. Further delays will leave the credibility of the election up in smoke to the detriment of not only ZEC’s already badly damaged reputation, but also Zimbabwe’s image.

However, if the rules of the Constitutional Court allow, it is of course only right that Kasukuwere should keep pressing on to enforce his constitutional rights until the proverbial fat lady sings.

Notwithstanding the unresolved substantive constitutional questions raised by the case, and not taking away Kasukuwere’s right and resolve to fight on, the Constitutional Court has spoken and the election needs to go on, limping and bloodied like never before since independence in 1980; after having been damaged by unprecedented legal challenges to the outcome of the Nomination Court that sat on 21 June 2023.

Whatever Kasukuwere does next, or however he chooses to fight on as he has said he will do, one thing that can be said truthfully to shame the devil, is that Kasukuwere’s election campaign since nomination day generated considerable public interest as he projected notable if not remarkable self-confidence as a presidential candidate, which was supported by flashes of message discipline, focus, direction, energy and dynamism that caught doubting Thomases like me by curious surprise.

Meanwhile, as far as Kasukuwere’s case goes, all eyes are on the proverbial fat lady, waiting to hear if or what she will sing, and when, if ever! – Prof Jonathan Moyo