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An analysis of the High Court judgement disqualifying independent candidate Saviour Kasukuwere from running for president by a legal watchdog, Veritas, this week has unearthed serious defects and errors by the presiding judge, Justice David Mangota.
ZANU PF activist Lovedale Mangwana approached the High Court seeking Kasukuwere’s disqualification from the presidential race.
Justice Mangota reversed the nomination court’s decision to accept Kasukuwere’s nomination papers, saying it violated the constitution.
Section 91 (1) says a person qualifies for election as president if they are resident in Zimbabwe.
According to Veritas, the ruling handed by Mangota is wrong on several counts. Veritas said:
<blockquote>
Section 23(3) of the Electoral Act says that voters ‘shall not be entitled’ to have their names retained on a roll if they have been absent for 18 months or more.
It does not say that they automatically cease to be registered on the roll. On the contrary, sections 27 and 28 of the Act lay down procedures to be followed before voters’ names can be removed from a roll:
Under section 27, a voter registration officer may remove a voter’s name, but only after sending the voter written notice and giving the voter an opportunity to appeal to a designated magistrate and, if dissatisfied with the magistrate’s ruling, to the Electoral Court.
Under section 28, a voter may object to the retention of a person’s name on a roll in which the other registered, and the voter registration officer may remove the person’s name, but again only after the person has been notified and given an opportunity to appeal to a designated magistrate.
</blockquote>
Veritas further argued that the Electoral Act does not give the High Court or the Electoral Court power to remove a person’s name from the voters’ roll unless these procedures have been followed. It said:
<blockquote>
Furthermore, the onus was on the applicant to show on a balance of probability that Mr. Kasukuwere had been absent from his constituency for more than 18 months.
He made the allegation and he had to prove it, by showing that Mr Kasukuwere had been living in South Africa or elsewhere in Zimbabwe; he did not have to prove a negative, as the judge apparently thought.
In any event, this was a case where there was a material dispute of fact about where Mr. Kasukuwere had been living, and the dispute could not be resolved on the papers.
</blockquote>
Kasukuwere’s lawyers appealed Justice Mangota’s ruling at the Supreme Court and the matter is yet to be determined
More: <a href="https://www.pindula.co.zw/">Pindula News</a>

Pindula News

Kasukuwere Nomination High Court Judgement Flawed - Legal Watchdog

Veritas, a local Legal think tank, has said it is now impossible for President Emmerson Mnangagwa to make a proclamation on election dates in May. The think tank said the Electoral Amendment Bill must become law before the electoral proclamation calling the election would need to be gazetted. However, developments in Parliament on 18 May mean that it is now impossible for the proclamation to be gazetted in May.
The Bill was given its Second Reading, but the Committee Stage was still in progress when a halt was called after midnight. Even if Parliament completes the Bill on 30 and 31 May, it cannot become law before June. In a statement seen by Pindula News, Veritas said:
<blockquote>
Election Proclamation Now Impossible in May
Media reports have spread the word that the President will announce the dates for the 2023 general election in May. This has been understood as meaning that the Presidential election proclamation calling the election will be gazetted during May. This bulletin gives a brief explanation of why this cannot happen.
No electoral legislation can apply to an election after the President has formally called by proclamation published in the Government Gazette. The authority for that is section 157(5) of the Constitution which provides that:
After an election has been called, no change to the Electoral Law or to any other law relating to elections has effect for the purpose of that election.
The Electoral Amendment Bill must, therefore, become law as an Act before the proclamation can be gazetted.
Developments on that Bill in Parliament on Thursday 18th May have rendered it constitutionally impossible for the proclamation to be gazetted in May. We shall explain why in point form:
1. Both Houses of Parliament are now in recess until Tuesday 30th May, having adjourned to that date after their sittings on Thursday 18th May. [Earlier on Thursday afternoon the Speaker had announced the suspension of Parliamentary business, including committees, until 30th May ”in respect of the Africa Day holiday in the coming week”.]
2. The Electoral Amendment Bill must become law before the proclamation is gazetted. It is essential to the conduct of the election if the election is to comply with the Constitution Amendment No. 2 of 2021.
3. On Thursday 18th May the Bill was given its Second Reading. The Committee Stage was still in progress, amendments having been made, when just after midnight, a halt was called after a marathon sitting. The National Assembly then adjourned until Tuesday 30th May
4. Even if Parliament ­manages to complete the Electoral Amendment Bill on the 30th and 31st May, there is no possibility that the Bill can become law before a date in June.
5. The President will have to wait before having the election proclamation gazetted. He has at least until the end of June to gazette it while still remaining in compliance with section 38 of the Electoral Act.
</blockquote>
President Mnangagwa recently announced that elections would be held in August but did not specify the dates.
<h2><a href="https://www.pindula.co.zw/">More Pindula News</a></h2>

Election Proclamation Now Impossible In May - Legal Think Tank

Veritas Zimbabwe, a legal watchdog, has called for a forensic investigation of the Reserve Bank of Zimbabwe (RBZ) amid allegations the central bank was complicit in gold smuggling and money laundering.
Al Jazeera recently released a four-part documentary series, Gold Mafia, in which some high-profile individuals, including Zimbabwean officials, bragged they were gold smugglers and money launderers and also implicated the RBZ in the illegal activities.
The RBZ issued a statement denying the allegations, saying they were “sensationally wild, false and malicious”.
Despite the denial, the RBZ’s Financial Intelligence Unit (FIU), ordered the freezing of the bank accounts of at least four individuals cited in the documentary series.
In a statement released this week, Veritas pointed out the apparent contradictions in the RBZ’s response. It said:
<blockquote>
… the Financial (Intelligence) Unit of the Reserve Bank has frozen the bank accounts of at least four persons portrayed in the series, which suggests there is at least some truth in the allegation.
</blockquote>
Veritas said the allegations against the RBZ have tarnished the image of the central bank and “suspicion within financial markets, multi-lateral financial institutions and” Zimbabweans in general. It said:
<blockquote>
The persons alleged to be carrying on this illegal trade were shown boasting of their close links to the Reserve Bank of Zimbabwe and to senior government officials, up to and including the President and his wife.
They said they had the Governor of the Reserve Bank “on speed dial” and that senior managers of Fidelity Printers and Refineries, a subsidiary of the Reserve Bank, were on their payroll to facilitate the issue of licences to buy and export gold.
The Reserve Bank is a vital cog in the country’s economy, and it is essential for it to maintain a spotless reputation for competence, fiscal responsibility and probity.
The Al Jazeera series, coming on top of the Bank’s illegal quasi-fiscal activities, have tarnished its reputation and sown suspicion within financial markets, multi-lateral financial institutions and the general Zimbabwean public.
</blockquote>
Veritas, has, therefore, called for a forensic investigation “in the interests of transparency and accountability an investigation” to ascertain whether the RBZ and its subsidiary companies are involved in unlawful activities.
It also suggested that President Emmerson Mnangagwa appoint a commission of inquiry to probe the allegations.
Veritas said a thorough investigation should be conducted into the RBZ’s activities “if our country’s reputation is to be upheld.”
More: <a href="https://zero.pindula.co.zw/">Pindula News</a>

Gold Mafia: Legal Watchdog Calls For Forensic Investigation Into RBZ Activities

Legal think-tank Veritas has warned that the ZANU PF-led government may dissolve Parliament and call an early election.
Zimbabwe is supposed to hold general elections between July 27 and August 26 2023 but this may not stop the government from calling for early polls, reported <a href="https://www.newsday.co.zw/local-news/article/200007002/zanu-pf-preparing-for-early-polls">NewsDay</a>.
The government is reportedly fast-tracking passage of the delimitation report as well as election-related legislation in Parliament and this is seen as part of a wider plot to call an early election that will find the opposition unprepared.
Veritas, in its latest weekly Election Watch report, said:
<blockquote>
There are straws in the wind which may point to an early election. Government may be trying to get important Bills through Parliament quickly so that Parliament can close for an early election.
Some of the Bills could be seen as strengthening the ruling party’s grip on society in advance of an election: the PVOs [Private Voluntary Organisations] Amendment Bill and the ‘Patriot Bill’, for example.
To say there have been problems with delimitation is putting it mildly.
The preliminary delimitation report that was presented to the President on December 26 was deeply flawed, as we pointed out in our Election Watches 1/2023 and 2/2023 and as Parliament pointed out in its report to the President.
No one seems to like the report, except perhaps the chairperson of the Zimbabwe Electoral Commission and her deputy.
</blockquote>
Some of the outstanding Bills that are before Parliament include the Judicial Laws Amendment Bill, National Security Council Bill, Prisons and Correctional Services Bill, Child Justice Bill, Police Amendment Bill and the Criminal Law (Codification and Reform) Bill. Veritas said:
<blockquote>
As we explained in our earlier Election Watches, delimitation must be completed at least six months before polling day in an election if it is to be used for that election (section 161(2) of the Constitution) and — unless Parliament is dissolved early — the next general election must be held between July 28 and August 26 this year.
So if this delimitation report is to be used in the mid-year election, it must have been published between January 28 (for an election held on July 28) and February 26 (for an election on August 26).
The report is already too late for a July election, and the deadline for an August election is fast approaching and probably cannot be met.
… If a final delimitation report cannot be produced in time, and existing electoral boundaries remain in place, an early election will be easier to arrange because it will not be necessary to reorganise and relocate polling stations, constituency centres and so on.
</blockquote>
On Friday, 03 February, Zimbabwe Electoral Commission (ZEC) chairperson Priscilla Chigumba was at State House to deliver to President Emmerson Mnangagwa the draft of the final report on the delimitation of constituency and ward boundaries which takes note of concerns that he and Parliament raised.
Chigumba said the draft report, which the President will now go through, could be gazetted in the next 14 days.

"ZANU PF Preparing For An Early Election"

Legal think tank Veritas Zimbabwe claims that Zimbabwe has lost at least US$32 billion as a result of criminal financial flows.
Citing recent research on the shady movement of capital and wealth out of the Southern African country, Veritas said illicit financial flows are “stunting Zimbabwe’s economy, fostering corruption and enriching members of the élite at the expense of ordinary people”.
Although illegal domestic financial flows are occasionally included, illicit financial flows often refer to cross-border transfers or movements of money or capital connected with criminal activity. Veritas said:
<blockquote>
The flows can be curbed, but it may be doubted if the Government has the courage and political will to do — its efforts to date have not had much success.
</blockquote>
Several studies on unlawful financial flows in Zimbabwe observed that between 2000 and 2020, Zimbabwe is estimated to have lost US$32 179 billion as a result of these transfers.
In the shorter period between 2009 and 2013, the country potentially lost an estimated US$2.83 billion.
Zimbabwe lost an estimated US$3 billion in 2019, according to <a href="https://www.pindula.co.zw/Loice_Matanda-Moyo">Loice Matanda-Moyo</a>, the chairperson of the <a href="https://www.pindula.co.zw/Zimbabwe_Anti-Corruption_Commission">Zimbabwe Anti-Corruption Commission.</a>
Unlawful financial flows from Zimbabwe accounted for 13.9% of the country’s total trade between 1980 and 2018, according to a policy brief published by the Brookings Institute.
According to evidence from research findings, there are political and economic reasons for money to flow illicitly from Zimbabwe, Veritas said.
<h2><a href="https://zero.pindula.co.zw/">More Pindula News</a></h2>

"Zimbabwe Has Lost US$32 Billion Through Criminal Financial Flows" - Report

Legal think tank Veritas has criticised the Ministry of Public Service, Labour and Social Welfare for failure to fully utilise its 2021 budget allocation and also failure to relay donated equipment to targeted recipients.
The Ministry failed to exhaust its share allocated in the year 2021 budget even when there were millions of people who were in dire need of assistance considering that the country was being ravaged by COVID-19.
This was revealed in the Report on Appropriation Accounts, Finance, and Revenue Statements and Fund Accounts by Auditor General Mildred Chiri.
In its latest publication, Veritas noted that the Ministry failed to fully utilise its allocated budget. It said:
<blockquote>
Ministry failed to fully utilise its allocated budget. The Ministry was allocated a total of ZW$ 7,382,629,000 in the 2021 financial year and its total expenditure was ZW$ 5,867,713,446.
This means at the end of the year, the Ministry had ZW$1,515,915,554 that was unspent, which is disturbing considering how many families, pensioners and persons living with disabilities had to go without food at the height of the COVID-19 pandemic, and how many schoolchildren had to leave school through non-payment of fees.
</blockquote>
On education assistance, the ministry did not follow laid down procedures in paying school fees under the BEAM programme. Said Veritas:
<blockquote>
The Auditor-General noted that the Ministry did not follow laid down procedures in paying school fees under the BEAM programme, which is designed to facilitate the enrolment of orphaned and vulnerable children in school by paying their school fees, school levies and exam fees.
The Ministry made overpayments amounting to $794,842 under the BEAM programme, to a number of schools due to a lack of scrutiny of invoices upon payment.
</blockquote>
In response, the Ministry said that the overpayments were being recovered.
Veritas also observed that the Social Welfare Ministry failed to correct past mistakes and repeated them again in 2021. It said:
<blockquote>
The Auditor-General made a worrying note that the Ministry had not addressed most of the issues raised in the previous financial year.
Of the seven issues raised, the Ministry had addressed only one; three were partially addressed, and three had not been addressed at all.
For example; double payments dating back to 2018 had been partially recovered, but more double payments were made in 2021.
Expenditure reconciliations were not done again in 2021, payment vouchers were again not submitted for audit and for the third year running the Ministry did not have an information technology policy or an IT plan.
</blockquote>
| <a href="https://www.zimlive.com/veritas-blasts-social-welfare-ministry-for-squandering-budget/">ZimLive</a>

Veritas Criticises Social Welfare Ministry For Failing To Fully Utilise Budget

The legal think-tank, Veritas said that the fuel prices announced by President Emmerson Mnangagwa were illegal as the prices were not fixed by the fuel regulator, ZERA as required by the law.
Statutory Instrument 10 of 2019 which supposedly put the new prices into effect was in contravention of the Petroleum Act according to Veritas. In a statement, Veritas said:
<blockquote>The SI may be ultra vires the Petroleum Act under which it was made because it was purportedly made by the minister after consultation with Zera, but section 54 of the Act states that Zera, after consultation with the minister, must prescribe the prices for petroleum products.
The SI does not mention the new fuel prices announced by the President on January 12 of $3,31 per litre for petrol and $3,11 per litre for diesel, and the President did not mention Zera when announcing them.
When Mnangagwa announced the new prices, he said that foreign missions and tourists would be able to buy fuel at designated garages for special prices at US$1,32 per litre for petrol and US$1,24 per litre for diesel fuel, but neither the SI nor Zera’s website mentions these special prices.
The confusion is made worse by the President reportedly having said these prices are predicated on the ruling official exchange rate of 1:1 between the bond note and the United States dollar. This statement and the two-tier pricing announced are contradictory.</blockquote>
<h3>More: <a href="https://www.newsday.co.zw/2019/01/fuel-price-hike-done-illegally/">Newsday</a></h3>

Mnangagwa's Fuel Price Hike Was Done Illegally - Legal Think-tank

Legal watchdog, Veritas has warned that the people of Beitbridge will not be able to vote for councillors to represent them after President Emmerson Mnangagwa “unconstitutionally” established the Beitbridge Municipal Council. The law experts blamed the president’s latest constitutional misstep on the non-alignment of laws to the new constitution.  <a href="https://news.pindula.co.zw/2018/03/09/mnangagwa-is-a-legally-illiterate-lawyer-he-must-amend-laws-on-externalisation-first-biti-speaks-on-amnesty/" rel="noopener" target="_blank">The president has been accused of making a number of constitutional mistakes since he came into office in November, which has resulted in some lawyers calling him “legally illiterate.”</a>
Writes Veritas
<blockquote>
Council Elections: President’s Proclamation of New Beitbridge Municipality
Usurps ZEC’s Functions
Unless ZEC acts to rectify the situation, people in Beitbridge will not be able to vote for councillors to represent them.   And Beitbridge is not the only place that will have this problem.
Zimbabwe Electoral Commission [ZEC] is Responsible for Delimiting Wards
Section 160(2) of the Constitution provides as follows:
“For the purpose of elections to local authorities, the Zimbabwe Electoral Commission must divide local authority areas into wards according to the number of members to be elected to the local authorities concerned.”
The section could hardly be clearer:  it is the constitutional function of the Zimbabwe Electoral Commission [ZEC] to define the boundaries of wards, and no one else can do it.  As if to reinforce the point, section 239(f) of the Constitution states that one of ZEC’s functions is “to delimit constituencies, wards and other electoral boundaries.”
As the Constitution is the supreme law, any law inconsistent with section 160(2) is invalid to the extent of the inconsistency [Constitution, section 2].
President’s Division of Beitbridge into Wards for Voting is Unconstitutional
It is unfortunate that the President’s recently gazetted proclamation establishing the Beitbridge Municipal Council is clearly inconsistent with section 160(2) of the Constitution, in that it divides the municipal area into wards.
The proclamation concerned is Proclamation 1 of 2018, published on 9th March in Statutory Instrument 28/2018.  It replaced the former Beitbridge Town Council with the new municipal council, fixed the municipal area and specified that there must be six councillors.  In doing this it was legally in order.  It went on, however, to include descriptions of the new municipality’s six wards, and here it was decidedly not legally in order because it necessarily implied that the President had divided the municipal area into wards and by doing so had acted inconsistently with section 160(2) of the Constitution.
Reason for Inconsistency – Laws not Aligned with Constitution
Why was this allowed to happen?  Because the Urban Councils Act and the Rural District Councils Act still contain provisions purporting to allow the President to divide local authority areas into wards and to alter the wards from time to time.  For instance, section 4 of the Urban Councils Act empowers the President by proclamation to establish a municipality, to fix the council area, and “after consultation with the Zimbabwe Electoral Commission, to divide the council area into any number of wards”.  These provisions are inconsistent with section 160(2) of the Constitution to the extent that they allow the President to divide a local authority’s area into wards.  The President cannot do so, even if he consults ZEC.  Only ZEC itself can do it.
The words we have quoted from section 4 of the Urban Councils Act – and the equivalent words in the Rural District Councils Act – are so clearly inconsistent with section 160(2) of the Constitution that no declaration of invalidity by the Constitutional Court is necessary; they are self-evidently invalid and void.  When a new local authority is established, therefore, the President’s proclamation can lawfully fix its council area and name, but should not divide the council area into wards.  Division into wards is a matter for ZEC alone, once the local authority has been legally established by the President’s proclamation.
Need for Constitutional Alignment of Our Laws
The error in the proclamation shows how important it is for all our laws to be aligned constitutionally.  Veritas has been pushing for the Urban Councils Act and the Rural District Councils Act to be amended to bring them into line with section 160(2) of the Constitution.  To no avail.  As a result, the inevitable has come to pass and the President’s advisers have allowed him to publish a proclamation which, in an important respect, is null and void.
[Note:  Veritas has drafted an Electoral Amendment Bill which contains amendments to the Urban Councils Act and the Rural District Councils Act, bringing their provisions into line with the Constitution in so far as they relate to elections and ward boundaries.  The Bill is available on the Veritas website [<a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://www.veritaszim.net/node/2347&amp;source=gmail&amp;ust=1521531785459000&amp;usg=AFQjCNFaXayjPbtCr4jWT9HJTfMmV2wNTw" href="http://www.veritaszim.net/node/2347">link</a>].
The boundaries which the President purportedly fixed for Beitbridge may be the same as the previous ward boundaries, but that does not make them legal.  The municipality of Beitbridge is a new entity, and its boundaries do not carry over automatically from the old town council.  The boundaries have to be fixed afresh, which is why the President tried to fix them in his proclamation.  But the President had no power to do so, even if he consulted ZEC, so the ward boundaries are void.
Wider Implications of the Unconstitutional Proclamation
The illegality in the proclamation is not just a technicality, or of academic interest only.
As we have indicated, the ward boundaries are void because of the illegality, so although the Beitbridge Municipality has six councillors there are currently no properly delimited wards for them to represent.  And unless the proclamation is rectified the municipality will have no wards for the forthcoming general election so it will not be possible for any new councillors to be elected.  Councillors cannot stand for non-existent wards.
It is not only Beitbridge that is affected.  Ever since 2013, when the Constitution came into force, wards have been created and abolished and their boundaries changed, without ZEC’s involvement.  For example, Proclamation 4 of 2013 altered the wards of Makoni, Proclamation 5 of 2013 altered Rusape’s wards and Proclamation 3 of 2014 altered the wards of GokweSouth.  All these new ward boundaries will have to be ratified by ZEC if there are to be valid elections for councillors to represent them.
A lot of unnecessary trouble that could have been avoided if the Urban Councils Act and the Rural District Councils Act had been amended to align them with the Constitution.
</blockquote>

Mnangagwa's Unconstitutional Proclamation Will Result In Beitbridge Residents Being Unable To Vote Warns Veritas

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