Bulawayo High Court Judge, Justice Thompson Mabhikwa on Monday reserved judgement to Thursday in a case involving embattled Bulawayo Deputy Mayor, Tinashe Kambarami filed by the 1893 Mthwakazi Restoration Movement (1893MRM), which wants him declared unfit for public office as he has a criminal record.
1893 MRM, a registered movement pushing for self-determination and sovereignty of the Matabeleland, argues that Kambarami was imposed on the electorate by his party – the MDC despite having a criminal record.
In July 2018, Kambarami appeared before a Bulawayo magistrate on theft charges where he pleaded guilty and was fined $80 or 18 days in prison for stealing an extension cord from an electrician he had hired to do manual work at his offices.
Besides 1893 MRM, the second applicant in the case was a citizen by the name Nomalanga Dabengwa.
In their application, Kambarami is cited as the first respondent, the second was the Bulawayo City Council, the third respondent was the Zimbabwe Electoral Commission and the fourth – MDC.
Of these respondents, besides Kambarami, the other three respondents are not opposed to the particular application, as they did not file any opposing papers.
The court was surrounded by heavily armed anti-riot officers anticipating a clash between Mthwakazi Republic Party members and supporters of the Deputy Mayor.
1893 MRM cited Section 119 (2) (e) of the Electoral Act: Section 41 (7) and Section 41 (8) of the Urban Councils Act that bars convicted persons from holding public office.
Section 119 (2) (e) of the Electoral Act reads, “a person shall be disqualified from being nominated as a candidate for or from election as a councilor if he or she has been convicted of an offence involving dishonesty”.
The applicant’s lawyer, Godfrey Nyoni argued that Kambarami’s conviction and dishonesty disqualified him from holding public office.
“Those who aspire public office must be trusted and have confidence of the electorate. Above all a candidate must be a person above reproach and be honourable. Dishonesty is not consistent with principles of public decency and moral aptitude. If convicted of dishonesty, one cannot participate and this provision in the Electoral Act was not designed for dishonest persons but to make sure that the state and municipal structures preserve integrity,” he argued.
Nyoni noted that once someone is convicted it killed public confidence and prayed for the court to nullify Kambarami’s election.
“We must protect the culture of purity, honesty and inspire trust and confidence in any municipal and state structure. The conviction of theft involves dishonesty. His election should be declared a nullity and respondent must be removed from office. Court must uphold principle of loyalty and protect rule of law and integrity of state and municipal structure,” said the lawyer.
As a matter of principle, the lawyer argued that whether one stole a cent, a million dollars or a toothpick, there was now a perception they are a thief.
“The amount is insignificant. When he was filing the VN1 forms at Nomination Court -there is a section which asks, has one been convicted? In this instance has there been a conviction? Yes. Has it been set aside? No. The inquiry ends there,” Nyoni said.
Kambarami’s defense said the applicants were quoting provision from VNI forms, a provision that was not before the court.
“The submission is improper and the court should not consider anything to do with some form not before he court. We will set the record straight. Kambarami’s conviction stands challenged and if left like that may result in wrong perception. A condonation was sought and granted to appeal against the conviction. The appeal was filed December 7, 2018 and when the appeal was granted, the case was filed in January 24, 2019,” said Dickson Moyo.
He added that the defense relied on Section 41 of the Urban Councils Act that stated that if a councilor sentenced to six months or more shall be disqualified filling, providing a quantum, left by the Electoral Act.
“Therein lies a gap in the law that is served by the Urban Councils Act, which the respondent directly operates under. If we say the respondent is dishonest, that is according to who? Who is telling us that dishonesty for the purpose of the Electoral Act has been committed?” submitted Moyo.
But the applicants lawyer shot back saying Kambarami only filed the condonation when he was served on November 26, 2018, that is when he jumped to file on December 6, 2018 after six months.
Before adjournment, another member of Kambarami’s defence counsel Maqhawe Mpofu raised arguements that the court had no jurisdiction to exercise the function of removing him from office as he was an elected councilor and already took oath of office of which he subsequently became deputy mayor .
“Section 278 of the Constitution provides the procedure of how office tenures can be terminated, which are through an act of parliament or via the establishment of a tribunal. On the removal from office, Kambarami can’t vacate the seat in accordance of Section 278 of the constitution, which is the country’s Supreme Law,” he said.
Mpofu said the electoral court could not navigate against a constitutional provision because it as subject to the constitution which shapes the country’s system of laws.
“To accept this and unseat the respondent can be done through an establishment of a tribunal as stated in Section 278 of the Constitution.”
After listening to both sides, Judge Mabhikwa said he would deliver a written judgement on Thursday.
Kambarami is facing another court case, where he is allegedly accused of assaulting Town Clerk Christopher Dube together with Ward 4 councilor Silas Chigora. The two were granted bail.