BY SILAS NKALA
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.