Judgement reserved in key electoral petition

Electoral Court Judge, Justice Chinembiri Bhunu today reserved judgement in the case in which Morgan Tsvangirai is seeking to compel electoral authorities to produce certain information and material relating to the conduct of the July 31 election.

Tsvangirai
Tsvangirai

This development comes as the Constitutional Court has set down the matter for this Saturday at a pre-trial conference held today.

Advocate Fred Gijima representing President Robert Mugabe told the media outside the Constitutional Court that the court would on Saturday decide on two preliminary issues.

“What was really critical was how the matter should proceed. There were two preliminary issues, how the matter should proceed whether it should proceed by way of a trial or whether it should proceed by way of an application as provided in the constitution. There are two schools of thought,” Gijima said.

Mugabe’s legal team according to Gijima does not want to go the route of a trial which would open the way for witness’ testimonies and production of further evidence which is Tsvangirai’s preferred option.

“The applicant’s legal practitioners feel it should proceed by way of a trial. They want to lead oral evidence and we believe it should not be heard by way of a trial. It should be heard by way of an application,” he said.

Gijima said that representation of the Attorney General’s office will also be dealt with on Saturday. Even though the Attorney General was not cited as a respondent in the case his office has argued that it has the constitutional mandate to be involved in all matters involving the presidential elections.

Gijima said all parties are supposed to file their papers by Friday 5 pm.

MDC-T spokesman Douglas Mwonzora told the media that his party had been informed of the Constitutional Court’s decision.

“We have no problem with that. As the MDC all want is that the people’s case is heard,” Mwonzora said.

At the Electoral Court Tsvangirai’s lawyer Advocate Lewis Uriri told the media that Justice Bhunu had reserved judgement.

“His lordship indicated that judgement will be handed own as soon as possible. All we know is that the presidential petition will be heard commencing Saturday and as matters stand we do not have access to the materials we intend to have accessed and to make use of at the hearing of the petition.

“A question of whether we will win or not is not one I can answer. All we can say is that we have a petition that is before the courts. We have a petition that complies with the law. We have a petition that sets up grounds upon which in terms of the law an undue return or an undue election can be competently set aside,” Uriri said.

He said Mugabe’s legal team and the Attoreny General’s office questioned the jurisdiction of the Electoral Court over the matter.

“The first issue was the jurisdictional question, whether the Electoral Court can hear and determine an application for the inspection of materials relating to a presidential petition which by its very nature should be filed with the Constitutional Court. Our response to that was very simple that the inspection of documents is the exclusive domain of the Electoral Court in terms of the Electoral Act itself,” Uriri said.

Mugabe’s team also challenged the urgency of the matter but Tsvangirai’s lawyers said the issue of time was critical.

“The case is set for hearing in the constitutional court on Saturday the 17th and clearly time is of the essence. We need access to those materials to be able to sustain our submission that there was an undue return.

We need those materials to demonstrate beyond doubt that the election was improperly conducted, to demonstrate that the will of the people is not reflected in that election. “There must be a reason why they do not want to make provision of those materials,” Uriri said.

Gijima said “the Electoral Court has no jurisdiction to hear any application or any interlocutory matter that is related to the petition of the election of a president. That point was argued extensively. I think the most important point is the point of jurisdiction”.

He said the judge would give a written judgement in due course.

Tsvangirai wants the court to compel the Zimbabwe Electoral Commission to avail presidential results per constituency. Among the election materials he wants produced are copies of the voters' roll used in all polling stations and copies of the voters' roll used in the special vote conducted on July 14 and 15.

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