Bhasikiti judgment reserved

via Bhasikiti judgment reserved – NewsDay Zimbabwe July 3, 2015

High Court judge Justice Chinembiri Bhunu yesterday reserved judgment on preliminary points raised in ousted Masvingo Provincial Affairs minister Kudakwashe Bhasikiti’s case challenging his expulsion from Zanu PF.

BY CHARLES LAITON

The former Zanu PF politburo member dismissed the ruling party’s assertion that a vote-of-no-confidence was passed against him, saying there was no legal basis for junior structures to boot him out.

The matter kicked off with President Robert Mugabe’s lawyer Terence Hussein raising some preliminary points, urging the court to dismiss Bhasikiti’s application.

Hussein said his client, being the Head of State, could not be sued without one having to seek leave from the High Court.

“Rule 18 of the High Court requires that any person who seeks to sue the President must, before he does so, seek leave from this honourable court. The same rule is applicable to sitting judges of the High Court,” Hussein said.

“The reason is that the Head of State and the judges occupy very important constitutional roles that they should not be distracted by frivolous and vexatious applications . . . We should not be misunderstood to say that the President cannot be sued, he can but leave must be sought first.”

However, Bhasikiti’s lawyer and former Finance minister Tendai Biti dismissed Hussein’s argument, saying Mugabe had not been sued in his official capacity.

“The person who has been sued is a private actor of a political party, Robert Gabriel Mugabe, and not His Excellency, the Head of State and Government and the Commander-in-Chief of the Defence Forces, President Robert Mugabe,” he said.

“It is fortuitous that the said Mugabe happens to be the President of Zimbabwe.”

Hussein argued that Bhasikiti’s application should fail on the basis that it did not state properly his grounds for review and the relief that he was seeking.

“For not complying with the rules, the consequences is dismissal. My learned friend complained that we are clutching at straws, but with due respect, my lord, we are clutching at the law,” Hussein said.

But Biti hit back saying: “Respondent cannot use unharmonised rules to defeat a constitutional application for review.”

Hussein said Zanu PF, as a political party, was not an administrative body and would not perform administrative functions.

He said as such, its political decisions were not subject to review by the courts.

“Zanu PF is a voluntary organisation of persons of like mind and principles who want to associate with each other to fulfil their own personal and collective needs . . . I submit that political parties’ actions are not reviewable and the application must be dismissed,” Hussein said.

Biti said this was not possible where there was a Constitution.

“The tone of the respondent’s arguments is basically a plea to this court by hook or crook, leave us alone, it’s the law of the jungle, we can do whatever we want, no court, no one can scrutinise us,” he said. “The law of the jungle does not exist anymore. Dog-eat-dog does not exist anymore. The respondents, no matter how powerful, they are not above the law.”