THE MDC Bulawayo province has announced that it will soon
be appealing against the Bulawayo High Court ruling which nullified deputy
mayor Tinashe Kambarami’s election as councillor for ward 3.
Bulawayo High Court judge Justice Thompson Mabhikwa last
week nullified Kambarami’s election on the grounds that he was a convict.
MDC Bulawayo spokesperson Swithern Chirowodza in a
statement said it was not within the scope of the High Court’s powers to unseat
a councillor as those powers could only be exercised by a special tribunal.
“We are appealing to the Supreme Court. The court cannot
assign itself the powers to unseat a sitting councillor because those powers
are vested in a tribunal set up by the Minister of Local Government in terms of
Section 278 of the Constitution of Zimbabwe,” he said.
“For a High Court judge to call such a strong
constitutional argument ‘a legal nicety’ is a misdirection. The Constitution
could not have been more clearer in so far as the procedure to remove a sitting
councillor is concerned.”
Chirowodza said the court encroached into the province of
the tribunal and that the court was not a fact-finding tribunal which
investigates the suitability and conduct of a sitting councillor.
“His worship, the deputy mayor of Bulawayo, councillor
Tinashe Kambarami remains the elected people’s councillor. His Worship, the
deputy mayor of Bulawayo, councillor Kambarami will not be toppled by a
litigant who in fact is a mere simulacrum or sham device of the establishment,”
he said.
The nullification of Kambarami’s councillorship followed an
application by political pressure group 1893 Mthwakazi Restoration Movement
Trust seeking such an order, which was subsequently granted.
The pressure group had, through its lawyer Nyoni of Moyo
and Nyoni Legal Practitioners, filed a court application at the Bulawayo High
Court citing Kambarami, the Bulawayo City Council, Zimbabwe Electoral
Commission (Zec) and MDC as respondents.
In his ruling, Justice Mabhikwa said the court could not
condone such an “illegality”.
“The court has to protect the rule of law and the doctrine
of legality. Accordingly, I make the following order, it be and is hereby
declared that election of 1st respondent as councillor for ward 3 in Bulawayo
was in contravention of section 119 (2) of the Electoral Act Chapter 2:13
following his conviction on the offence of theft at the Bulawayo Magistrate
Court under criminal record book CRB number 1981/18 on June 27 2018 and it is
therefore set aside on account of it being null and void and his sustainability
to hold public office. That 1st respondent pays costs of the suit on the
ordinary scale,” ruled Justice Mabhikwa. Newsday
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