Wednesday 22 August 2018


World attention will today focus on Zimbabwe as the Constitutional Court hears, in a live broadcast, the petition lodged by MDC Alliance leader Mr Nelson Chamisa in his bid to overturn President Mnangagwa’s win in the July 30 harmonised elections.

In the process, the court will ink its own piece of history, as it broadcasts the proceedings live from Mashonganyika Building on the Zimbabwe Broadcasting Corporation (ZBC) television and radio, which have been granted the rights.

ZBC has since invited local and international broadcasters interested in linking with its live feed to come forward.

It will also be historical in that the court will be handling such a petition for the second time after it was called on to intervene in 2013 when the late MDC-T leader Mr Morgan Tsvangirai challenged former president Mr Robert Mugabe’s win.

Mr Tsvangirai later sought to withdraw his petition, but the Constitutional Court ruled that it was mandated by the Constitution to hear an electoral petition once it was lodged and dispose of it, leaving no room for a withdrawal.

The Constitutional Court then ruled that the presidential election held on 31 July 2013 was in accordance with the laws of Zimbabwe and in particular with the Constitution of Zimbabwe and the Electoral Act [Chapter 2:13].

It also ruled that the election was free, fair and credible. “Consequently, the result of that election is a true reflection of the free will of the people of Zimbabwe who voted,” it said.
The court also ruled that Mr Mugabe was duly elected President of the Republic of Zimbabwe and declared him winner of the election.
Mr Tsvangirai’s petition was dismissed with costs on the ordinary scale.
This time around and in the new spirit of opening up the democratic space in Zimbabwe, the Constitutional Court has gone further to allow people to watch the proceedings live from anywhere in the world.

Mr Chamisa is challenging President Mnangagwa’s win in the harmonised elections in which the President garnered 50,8 percent of the total presidential vote, against his 44,3 percent.
Zanu-PF also bagged over two-thirds majority in the National Assembly. Nine judges of the apex court led by Chief Justice Luke Malaba will hear the petition.

For the past two days, the Judicial Service Commission had been busy accrediting those who would be allowed to sit in court and pitching a tent for people who will be following the proceedings from outside the court.

ZBC was also busy setting up its machinery at the court premises to ensure a quality live broadcast.
In an interview yesterday, veteran Harare lawyer Mr David Hofisi gave his analysis of the lawyers involved in the petition.

“In Lewis Uriri (for President Mnangagwa) and Thabani Mpofu (for Mr Nelson Chamisa) we have two titans of the legal field, and it is as thrilling a match-up as any,” he said.
“Zec’s lawyer, Tawanda Kanengoni, is also very grounded and experienced in this sort of litigation and his papers portray he is quite confident in the minutiae of election-related litigation.”

Mr Hofisi went on: “It looks like we are all going to learn the authoritative requirements of lodging, the time required for serving and substantively, the minimum standard for non-compliance deemed sufficient to reverse an election result will be the crux of the matter.”
President Mnangagwa says there is no valid election petition challenging his victory in the July 30 election.

In defence of his win, President Mnangagwa, who seeks to raise several preliminary objections to the petition, argues that the petition was a clear abuse of court process that should not be entertained by the esteemed court.

Through his lawyers, Advocates Uriri and Thembinkosi Magwaliba, President Mnangagwa will tell the court that there is no valid election petition before the court to warrant the invalidation of the poll results.

‘‘The applicant (Mr Chamisa) has not mounted this application for the bona fide purpose of setting aside the result of the presidential election conducted on 30 July 2018,” he said.
“The intention was to delay my inauguration as the duly elected President of the Republic of Zimbabwe and to make political statements in court.

‘‘This is apparent from the fact that the application does not comply with the rules of the honourable court and the Constitution.”

In addition, President Mnangagwa wants the court to censure Mr Chamisa for the childish manner in which he prosecuted the application.

To this end, the President wants the highest court in the land to dismiss the petition and confirm him the winner of the presidential poll.

A dismissal order, said the President in his opposing papers, was appropriate given the fact that the petition was plagued with flagrant procedural irregularities.

In responding to Mr Chamisa’s petition, the Zimbabwe Electoral Commission (Zec) and its chairperson Justice Priscilla Chigumba will argue that the petition is “fatally and incurably defective” to nullify the results.

The electoral body, which is being represented by its lawyers Nyika, Kanengoni and Partners, supported President Mnangagwa’s assertion that there is no valid application filed by the MDC-Alliance leader before the court.

The body stated that the petition not only failed to comply with the court rules, but it was an uncompleted record to render the petition invalid.

“His (Mr Chamisa) application is thus fatally and incurably defective and ought to be struck off the roll,” said Justice Chigumba.

She averred that Mr Chamisa’s claims of malpractices by Zec were unfounded as the MDC Alliance founding papers have not proven an irregularity as alleged apart from making bare allegations.
“The conclusion made by the applicant from this bare allegation is that the electoral commission rigged the presidential election with no evidence given to show the alleged rigging,” said Justice Chigumba.

Mr Chamisa’s lead defence lawyer, Adv Mpofu, wants the Constitutional Court to set aside President Mnangagwa’s victory, claiming that the official presidential results announced by Zec were not credible.  He wants Mr Chamisa declared winner of the election or an order for a fresh election. Herald


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