Tuesday 14 August 2018


MDC Alliance leader Nelson Chamisa’s lead lawyer Thabani Mpofu claims the evidence they submitted to the Constitutional Court (ConCourt) was indisputable and would likely embarrass both the Zimbabwe Electoral Commission (Zec) and President-elect Emmerson Mnangagwa, hence the latest move by Zanu PF lawyers to have the matter dismissed on technical grounds.

This came amid reports that Mnangagwa’s lawyers were now in a panic mode and clutching at straws to have the court challenge dismissed on a technicality, instead of being heard on its merits when the ConCourt sits to hear the matter.

Mpofu claimed that his team had submitted a bundle of evidence, including V11 forms from all the polling stations that were set up by Zec which, if tallied, showed Chamisa polled 2 674 032 votes against Mnangagwa’s 2 008 639 votes.

Chamisa said Mnangagwa was “fraudulently” declared winner of the July 30 presidential polls, and wants the ConCourt to declare him the winner, instead.

“You can see that the intention is to access the data that we have, that data cannot be accessed, that data is going to be seen for the first time in the application, but those desperate attempts speak to the fact that there is something which these people want to hide and it is that something which they want to hide which we are going to fully expose,” Chamisa’s lawyer said.

“So many people are going to be embarrassed, but ultimately the will of the people is going to prevail … I am satisfied that the evidence we have is not only overwhelming, but embarrassing.”

In the petition filed by Chamisa on Friday, he accused Zec of disenfranchising over 40 000 voters, among them teachers and other civil servants who were deployed to polling stations outside their wards and hiding 21 polling stations, and generating a huge number of assisted votes in areas where Mnangagwa won by wide margins.

But, Mnangagwa’s lawyers led by Zanu PF’s legal secretary Munyaradzi Paul Mangwana last week indicated that they wanted the case dismissed for late filing, among other technicalities.

The 12-member Zanu PF legal team claimed that Chamisa’s lawyers missed the deadline to file the application and to timely serve Mnangagwa and the other respondents with the court papers.

Highly-placed sources told NewsDay that the Zanu PF lawyers were desperate to keep a lid on the evidence gathered by Chamisa’s team, hence their bid to push for the case to be dismissed on technical grounds.

Mangwana could not be reached for comment yesterday afternoon although he had earlier been spotted at the ConCourt building ostensibly to submit the response.

Law lecturer and human rights lawyer, Valentine Mutatu, however, described the Zanu PF legal team’s bid as futile, saying the ConCourt would likely not give in.

“Read the judgment by Justice [Luke] Malaba in the petition by the late [MDC-T leader] Morgan Tsvangirai, where he said that the issue of validity or otherwise can only be decided on merit. He denied withdrawing the matter insisting on hearing the merits,” Mutatu said.

In 2013, Tsvangirai approached the ConCourt seeking to overturn the electoral victory of former President Robert Mugabe, but before the case was heard the late MDC-T leader sought to withdraw the case before it was determined, and the court refused.

In his judgment CCZ 20/17, Justice Malaba, said the issue of challenging the results of presidential elections was integral to protecting the Constitution of Zimbabwe and once brought before the attention of the courts should be heard and be determined.

“Section 93 (3) of the Constitution provides that the court ‘must hear and determine the petition or application lodged under subsection (1) with 14 days after the date of lodgement’. The word ‘must’ is not used to mark only the obligation in respect of the time limit within which the acts designating the duty imposed must be carried out. The word is also used to indicate to the court that it is under obligation to treat the petition or application in the manner prescribed and not in any other way.

“What is imposed is the duty to obey the order first. Obedience is doing that which is required by the law. In other words, the women and men exercising judicial authority must appreciate the meaning of the provisions to the effect that the court with the power with which they are imbued ‘must hear and determine’ the petition or application lodged with it,” Justice Malaba ruled then.

Justice Malaba in his ruling also said it was sufficient for the court to require full knowledge of the matter brought before it to ensure a just, fair, final and binding decision by the highest court in the land on the merits of the question of the validity or invalidity of an election of a President.

“Considering that the court, which is the final court in the land, has been given original and exclusive jurisdiction on all matters relating to an inquiry into the validity of an election of a President brought to it by means of a petition or application, it makes sense to require it to acquire full knowledge of the facts before making final and binding decisions … the intention was obviously to reduce the risk of an erroneous decision to a tolerable minimum,” Justice Malaba ruled.

In cementing his ruling, Justice Malaba said a decision on whether a President was elected in the manner desired by the Constitution and that the rights of the people of Zimbabwe were protected merits of the matter that should be heard.

“It is clear that the final and binding decision on the validity or invalidity of the election of a President is required to be based on the merits of the case … The mandatory hearing and determination of the petition or application on its merits is the means required to be used to produce the final and binding decision on the validity or invalidity of the election of a President,” the judgment read.

Mutatu said based on the judgment made by the now Chief Justice in 2013, it was highly unlikely and most improbable for the case to be dismissed on technicalities as raised by Zanu PF lawyers.

“It is clear without delving in other issues that the Zanu PF and Zec legal teams should stop nit-picking on technicalities and address the issues raised by Chamisa, their prayer that it’s dismissed on technicalities is a bit far-fetched,” he said. Newsday


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