Dexter Nduna
Konjana recently filed an application in the Constitutional Court
seeking an order granting him leave to appeal against the decision of
the Supreme Court which on 23 March 2021 upheld the Electoral Court’s
decision saying it has no jurisdiction to hear an election petition
appeal once the prescribed period of three months has expired and
moved on to remove the matter from the Supreme Court roll.
In his appeal filed in the Supreme Court on 2 November 2018, Konjana
had argued that Electoral Court Judge Justice Mary Zimba-Dube had
erred and misdirected herself on 18 October 2018 when she rejected his
election petition on the grounds that it was fatally defective. In the
Electoral Court, Konjana had argued that ZEC officials had made a
mistake by swapping his 121 votes in one of the wards in Chegutu West
constituency with those of another candidate Simon Kache, who had
gotten just one vote. The ZEC officials confirmed that if the mistakes
were corrected, Konjana should have been declared the duly elected
legislator as he had in fact garnered 10 949 votes compared to Nduna’s
10 932.
But Supreme Court Judges of Appeals Justice Bharat Patel and Justice
Chinembiri Bhunu removed Konjana’s appeal from the court roll after
ruling that he had failed to comply with the law which required him to
have the election petition to be heard within the prescribed three
months period.
Now Konjana, who is represented by Advocate Tererai Mafukidze
instructed by Moses Nkomo of Zimbabwe Lawyers for Human Rights, has
petitioned the Constitutional Court seeking an order granting him
leave to appeal to the apex court against the decision of the Supreme
Court.
In his application, Konjana argued that the Supreme Court decided
constitutional matters and issues connected with decisions on
constitutional matters and erred in its judgment by failing to hold
that based on a constitutionally compliant interpretation, section
182(2) of the Electoral Act is directory and cannot constitutionally
operate as a time bar to the determination of an appeal already
properly pending before it.
Konjana also argued that the Supreme Court failed to hold that
interpreting section 182(2) of the Electoral Act as mandatory results
in unconstitutional limitation of the right of access to the courts
and a fair hearing provided under section 69(2) and (3) of the
Constitution, the right to the protection of the law under section
56(1) of the Constitution and the right to vote guaranteed under
section 67(1)(a) and (b) of the Constitution and section 67(3)(a)
and(b) of the Constitution.
He also submitted that the Supreme Court failed to hold that the
ouster of the court’s jurisdiction in this case would be
unconstitutional and therefore should prefer the constitutional
interpretation that preserves the ordinary jurisdiction of the court.
Konjana wants the Constitutional Court to grant him leave to appeal
and to be granted leave to file a notice of appeal within 10 days.