DIVISIONS have reportedly rocked President-elect Emmerson
Mnangagwa’s legal team after it emerged that some of his lead lawyers gave him
a wrong interpretation of the operations of the law regarding MDC Alliance
leader Nelson Chamisa’s Constitutional Court (ConCourt) presidential election
challenge.
Highly-placed sources in the legal fraternity told NewsDay
yesterday that Mnangagwa had pencilled his inauguration on August 12, following
advice from one of his lead counsels and was now seeking to argue before the
courts that Chamisa’s petition was filed out of time.
“These arguments are embarrassing to the legal team, clear
misreading of the law and misinformation being given to the President as advice
is now frustrating other members of the team,” the source said.
The discrepancies were highlighted in a 17-page document
prepared for Mnangagwa by Lewis Uriri, titled Ex Parte: Emmerson Dambudzo
Mnangagwa, in which he urged his client to disregard findings by the
instructing lawyers.
“Whether my instructing attorneys are correct in their
interpretation that in view of rule 3 of the ConCourt Rules (2016), the last
day of filing of a petition challenges, my consultant’s election as President
of the Republic of Zimbabwe is the 16th August 2018,” Uriri wrote.
He added: “Whether my instructing attorneys are correct in
their view that no election petition is filed, inauguration day would be Monday
the 20th August 2018.
“My opinion and advice: A petition challenging my
consultant’s election as President of the Republic of Zimbabwe has the effect
of delaying his inauguration up until the 25th of August 2018. He must, in any
event, be sworn in no later than the 26th of August 2018”.
The memo showed that the initial advice was that
Mnangagwa’s inauguration could only take place on August 20 and the
technicality issue being raised by Zanu PF legal affairs secretary Munyaradzi
Paul Mangwana that the court papers were filed out of time was reportedly based
on Uriri’s interpretation.
Uriri told Mnangagwa that his inauguration date was
supposed to be August 12, while Chamisa’s deadline for filing the challenge was
August 10, instead of August 16.
“The time for any challenge to my consultant’s election as
the President of Zimbabwe lapses at midnight on 10 August 2018. Inauguration
day, in the event that no petition is filed, is Sunday the 12th of August
2018,” Uriri said in his advisory note to Mnangagwa.
His legal opinion, which informed the decision by the Zanu
PF legal team to present itself at the Constitutional Court on Monday, a public
holiday, was that section 93 of the Constitution did not relate to week days.
“Section 93 of the Constitution does not relate to seven
week days, it relates to seven days. If the intention was to exclude Saturdays,
Sundays and public holidays, the legislature would have said so by using
appropriate language. The simple reference to seven days is a reference to
calendar days and includes weekends and public holidays,” Uriri said.
Contacted for comment on his advisory note yesterday, Uriri
said he was not at liberty to discuss his client’s confidential matters with
the Press.
“I note you have attached what purports to be an opinion
allegedly given by me to Messrs Mutumbwa, Mugabe and Partners. I neither
confirm nor deny that the said lawyers sought my opinion. My relationship with
my clients is strictly privileged. I do not and will not discuss their affairs
with unauthorised third parties, and certainly not with the Press,” he said.
But law lecturer Valentine Mutatu said if the
interpretation by Uriri and Mangwana was correct, they should have filed their
responses by August 13.
“If Mangwana and company are correct in their counting of
days, if the application was served on Friday the 10th, then the last day of
filing opposing papers was the 13th, but that cannot be because the courts,
which don’t count the weekends and holidays, are closed. The court can,
therefore, not count a day in which it is not possible for you to file papers,”
Mutatu said.
Chamisa filed his court application on August 10 and
managed to serve Mnangagwa and the Zimbabwe Electoral Commission (Zec) on the
same day, according to his chief election agent Jameson Timba.
A lawyer, who refused to be named for professional reasons,
said Mnangagwa risked being misled by his legal team.
“It’s clear that the President is being misled by his legal
team. He needs to replace them, especially (his point persons). If you look at
the history of some of them, besides the case where they are a litigant, you
won’t find any case they argued and won that’s worth nothing. The one time they
attempted to go to the ConCourt recently ended in a disaster. They misfired
procedure,” the lawyer said.
Mangwana approached the ConCourt in case 02/14 representing
Boas Mapuva and Zishe Chizani, which case was dismissed on a technicality in
judgment CCZ 6/2015.
The court, in a judgment delivered by Justice Elizabeth
Gwaunza, admonished Mangwana for failing to follow proper procedure by bringing
the matter in an improper manner. Newsday
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