The upshots of dismissing Kasukuwere’s court appeal

By Sharon Hofisi | Aug. 4, 2023

The dismissal of Kasukuwere's appeal without providing reasons raises questions about the transparency and fairness of the decision.

THE recent dismissal of Saviour Kasukuwere's appeal by the Supreme Court, without providing reasons, has raised concerns about the protection of political rights in Zimbabwe.

As he seeks to approach the Constitutional Court of Zimbabwe for redress, the implications of this dismissal on his political ambitions and broader implications for the country's electoral system come under scrutiny. Additionally, the Electoral Act's provision relating to a candidate being barred for spending about 18 months outside Zimbabwe further complicates the situation, potentially leading to an electoral and constitutional crisis. This article will analyse the ramifications of the dismissal without reasons, examine the potential remedies available, and discuss how the Electoral Act's provision can be interpreted considering the progressive provisions of the Constitution and international law.

Dismissal without reasons

The dismissal of Kasukuwere's appeal without providing reasons raises questions about the transparency and fairness of the decision. Denying a candidate access to information as to why their appeal was dismissed can undermine the fundamental principles of justice and due process.

This could adversely affect Kasukuwere's political rights, as he is left without a clear understanding of the grounds on which his appeal failed, making it challenging for him to seek appropriate remedies.

Safeguarding political rights

Kasukuwere's decision to approach the Constitutional Court is a crucial step in safeguarding his political rights. The Constitutional Court has the authority to review the decisions of lower courts and ensure compliance with the Constitution.

The court's intervention could provide Kasukuwere with the opportunity to challenge the dismissal of his appeal on grounds of fairness, due process, and constitutional rights.

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The court may order the Supreme Court to provide reasons for the dismissal, leading to a more transparent and just process.

Interpreting the Electoral Act

The Electoral Act's provision that bars a candidate from contesting if they spend about 18 months outside Zimbabwe is open to interpretation. It is essential to analyse this provision considering the progressive provisions of the Constitution and relevant international law, as well as the principles outlined by the Southern African Development Community (Sadc) on elections.

Under the Constitution of Zimbabwe, all citizens have the right to participate in political processes and stand for public office. Any provision in the Electoral Act that limits this right should be interpreted restrictively to avoid infringing on fundamental rights. International law, including the International Covenant on Civil and Political Rights (ICCPR), protects the right to political participation, and any restriction on this right must be necessary, proportionate, and non-discriminatory.

Protecting candidates

In the context of President Emmerson Mnangagwa currently being an administrative president and allegations of party activism influencing court decisions, it is imperative for the Constitutional Court to uphold the principle of judicial independence.

The court should ensure that its decisions are based solely on legal merit, impartiality, and adherence to constitutional principles, rather than political considerations.

Potential electoral crisis

The combination of the dismissal of Kasukuwere's appeal without reasons, the contentious provision in the Electoral Act, and concerns over judicial independence may lead to an electoral and constitutional crisis in Zimbabwe.

Public trust in the electoral process and the judiciary may erode if there are perceptions of unfairness, bias, or political interference. This could result in widespread protests, further polarisation of the political landscape, and undermine the credibility of the upcoming election.

Remedies and the way forward

To address the ramifications of the dismissal and protect candidates' political rights, several remedies can be sought:

The Constitutional Court should review the Supreme Court's decision and order the provision of reasons for the dismissal of Kasukuwere's appeal, ensuring transparency and accountability in the judicial process.

The Constitutional Court should interpret the Electoral Act's provision in line with the progressive provisions of the Constitution and international law, safeguarding the right to political participation.

The Zimbabwean government should take steps to enhance judicial independence, ensuring that the judiciary remains free from political interference and party activism.

Regional and international bodies, such as Sadc and the African Union, should closely monitor the electoral process in Zimbabwe to promote transparency, fairness, and respect for democratic principles.

In expanding the points first and last point above, it is argued that:

Explanation: Transparency and accountability are crucial aspects of a fair and just judicial system. When the Supreme Court dismisses an appeal without providing reasons, it denies the appellant the opportunity to understand the grounds for the decision and whether there were any legal errors or inconsistencies in the judgment. By approaching the Constitutional Court, Kasukuwere seeks to rectify this lack of transparency and demand the Supreme Court to offer explanations for the dismissal. The Constitutional Court, as the highest court in Zimbabwe, has the authority to review decisions made by lower courts, including the Supreme Court. Ordering the provision of reasons would not only uphold the principles of transparency but also promote accountability within the judiciary.

Explanation

The Electoral Act's provision that bars a candidate from contesting if they spend about 18 months outside Zimbabwe can potentially limit individuals' political rights.

The Constitution of Zimbabwe enshrines the right to political participation, which includes the right to stand for public office. Any restriction on this right should be interpreted narrowly and in line with the overarching principles of the Constitution.

International law, particularly the International Covenant on Civil and Political Rights (ICCPR), protects the right to political participation as a fundamental human right. Therefore, the Constitutional Court must ensure that any interpretation of the Electoral Act's provision is consistent with these progressive constitutional and international standards, safeguarding candidates' right to participate in the electoral process without unnecessary and disproportionate restrictions.

The Zimbabwean government should take steps to enhance judicial independence, ensuring that the judiciary remains free from political interference and party activism.

Explanation

The perceived independence and impartiality of the judiciary are essential for maintaining public trust in the judicial system. When activists from a political party approach the courts to protect a candidate who holds an administrative position, it raises concerns about possible political influence on the judiciary's decisions.

To avoid such perceptions and to safeguard the integrity of the judicial process, it is incumbent upon the Zimbabwean government to take proactive steps to ensure judicial independence.

This includes implementing measures to prevent political interference in the court's proceedings, protecting judges from external pressures, and establishing a transparent and merit-based system for the appointment and promotion of judges.

By reinforcing the judiciary's independence, the government can uphold the rule of law and demonstrate a commitment to a fair and impartial electoral process.

Explanation

Given the potential risks of an electoral and constitutional crisis in Zimbabwe, regional and international bodies play a crucial role in upholding democratic standards and ensuring electoral integrity.

Sadc and the African Union have established frameworks and principles on elections to promote free and fair electoral processes among member states.

These bodies can actively engage with the Zimbabwean government and electoral authorities to monitor the electoral process, assess compliance with democratic principles, and address any concerns of electoral manipulation, human rights violations, or lack of transparency.

International observation missions can help provide an impartial assessment of the electoral process and contribute to building public confidence in the outcome. By collaborating with regional and international partners, Zimbabwe can benefit from valuable expertise and guidance in conducting credible elections that respect the will of the people and protect candidates' rights.

Conclusion

The dismissal of Kasukuwere's appeal without providing reasons raises significant legitimacy issues surrounding the decision-making process. Legitimacy is a fundamental aspect of any judicial system, as it ensures that decisions are seen as fair, just, and credible by the public.

When legitimacy is compromised, it can erode trust in the judiciary, the rule of law, and the overall democratic process. Transparency is a cornerstone of a legitimate judicial system. When courts make decisions without providing reasons, it hampers the public's ability to understand the rationale behind the judgment. Legitimacy is closely tied to public confidence in the judiciary.

A decision without reasons can create a perception that the court is not being forthright or accountable, leading to a loss of trust in the court's ability to deliver fair and impartial judgments.

Linked to the above is due process which is a fundamental principle that ensures individuals have the right to a fair and just legal process. Dismissing an appeal without providing reasons denies the appellant the opportunity to challenge any legal errors or present counterarguments.

This then attacks issues of impartiality and judicial independence in that the absence of reasons for the dismissal can raise suspicions of partiality, especially when the appellant is a political candidate.

As such a legitimate judiciary should be accountable for its decisions.

When reasons are not provided, it becomes difficult for higher courts or independent bodies to assess the validity and fairness of the lower court's ruling.

Without accountability, there is a risk that judges may not feel compelled to justify their decisions, potentially leading to arbitrary or inconsistent judgments.

Under such situations, the dismissal of Kasukuwere's appeal without reasons in the context of a presidential candidate seeking to participate in an election may be perceived as a strategic move to restrict political competition or target specific individuals, raising concerns about the fairness of the electoral playing field.

Hofisi is a lawyer, conversationalist and transdisciplinary researcher. He has interests in governance and international law. — sharonhofii@gmail.com