OPPOSITION MDC leader Nelson Chamisa will launch a renewed
bid to oust President Emmerson Mnangagwa by seeking to have the Constitutional
Court (ConCourt) review its own judgment based on “new evidence.”
Chamisa’s lawyer Thabani Mpofu said after studying academic
works on the elections published by self-exiled former minister Jonathan Moyo,
they were now making efforts to have the judgment on the 2018 presidential
elections set aside.
The country’s top court ruled that Chamisa had failed to
prove allegations of fraud during the presidential election, a vote which left
the nation polarised and violence on the streets of the capital Harare.
Mpofu said the basis of approaching the ConCourt was because
they now believe that the Zimbabwe Electoral Commission (Zec) presented to the
courts false information and, therefore, their call for the judgment to be set
aside.
“The general rule is that once a final judgment or order
has been given, the judge who gave it or any other judge of parallel
jurisdiction has no power to alter, rescind, vary or set it aside, except in
the few instances recognised at common law or by the rules of the High Court.
One of the exceptions recognised at common law is when the judgment or order
has been obtained through fraudulent misrepresentation,” Mpofu said in a
statement yesterday.
Mpofu, who was Chamisa’s lead lawyer in the challenge
against Mnangagwa’s presidency, said the information carried in Moyo’s book
Excelgate would have consequences on the resolution of the legitimacy question
in Zimbabwe.
“We have now completed our sober and painstaking study of
Excelgate. In embarking on the study, we allowed ourselves to be guided by the
remarks of (Justice Luke) Malaba (as he was then) in City of Mutare v Mawoyo
1995 … doubles, Excelgate comes with certain consequences,” Mpofu said.
Midlands State University law lecturer and human rights
lawyer, Valentine Mutatu, said it was possible for Chamisa to pursue a fresh
application at the ConCourt, although chances of success might be very slim.
“It is very possible for them to make that application to
the ConCourt, if there is new and compelling evidence, but without full facts
and all the information, it would be difficult for me to make conclusive
remarks,” Mutatu said.
He said he would, however, not advise that they take that
route given that they will be making the appeal before the same judges who
decided the matter in the first place, giving them very little or no room to
manoeuvre.
“Without the full facts, I would not advise on that move,
although their case at law is correct,” Mutatu said.
The law provides the ConCourt as the last court of appeal
and does not provide any avenues for appealing against a ruling in the case of
a presidential results appeal.
Another lawyer, Prayers Chitsa, said Mpofu was stepping on
a legal minefield, but in essence, nothing could stop Chamisa from approaching
the ConCourt.
“It’s a legal minefield in the sense that it has not been
done before, but nothing can stop the application if they can prove that there
is new evidence that was not available at the time the first application was
made, or could have been reasonably made available at the time. I am sure the
courts can look at that evidence and could change their initial judgment,”
Chitsa said.
Chamisa confirmed that his lawyers were looking at the
matter and already taking action, although he preferred not to comment on what
had already been done.
Insiders said apart from mounting a fresh ConCourt appeal,
Chamisa and his team, with the help of Mpofu, were coming up with a dossier
which would be part of a fresh diplomatic onslaught in the region, continent
and West to pressure Mnangagwa to the negotiating table.
“The new evidence is being compiled into a dossier which
will be used in a two-way process, legal and political. We will be presenting
this evidence and findings to Sadc, the AU [African Union] and the
international community,” the source in Chamisa’s corner said. Newsday
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