Tsvangirai, court in row

HARARE - MDC leader Morgan Tsvangirai says he is being forced to pursue the presidential election challenge, after the Constitutional Court yesterday insisted on making a ruling today despite his withdrawal of the petition last Friday.

Tsvangirai’s application had stalled president-elect Robert Mugabe’s inauguration, despite being declared winner with 61,09 percent of the votes, while the MDC leader got 33,94 percent.

Following Tsvangirai’s withdrawal of the poll challenge citing doubts on prospects of getting a fair hearing, Mugabe’s swearing-in ceremony is now scheduled for Thursday.

But soon after Tsvangirai’s withdrawal, Chief Justice Godfrey Chidyausiku issued an order requesting parties to attend court to pursue the matter yesterday.

Chidyausiku said the matter needed to be brought to finality, citing Section 94(1)(b) of the new Constitution which states that “once challenged by an election petition, a president-elect can only be sworn in after the Constitutional Court has declared him to be the winner of the election.”
  
The Chief Justice said in an ordinary matter, a withdrawal meant the end of the case, but the situation was different with a constitutional case.

Tsvangirai’s lawyer Advocate Deepak Mehta said he had no instructions to argue the case but to deal with the withdrawal.

Mehta disassociated himself from statements made by Tsvangirai when he withdrew his court application.

This was after the Chief Justice asked Mehta whether he shared sentiments contained in the MDC leader’s affidavit casting aspersions on Chidyausiku’s integrity.

Tsvangirai said in his affidavit that Mugabe had made some unsavoury comments at the Heroes Acre criticising his decision to approach the courts in the presence of Chidyausiku, who was expected to preside over the poll petition.

Tsvangirai’s affidavit said: “The fact that the Chief Justice was in attendance on the day and the fact that he is expected to preside over my petition does very little to inspire my confidence in the possibility of my enjoyment of the constitutional right to a fair hearing.

“In this regard I make no imputation, gratuitous or otherwise, about the integrity of the honourable Chief Justice. My concern is with the conduct of the first Respondent (Mugabe).”

However, Mugabe’s lawyer Terence Hussein, Zec’s attorneys Tawanda Kanengoni and Charles Nyika, the Attorney General’s representatives Farai Mutamangira and Gerald Mlotshwa, said a withdrawal by Tsvangirai did not automatically terminate proceedings.

Soon after the court proceedings, Hussein told reporters: “It was a full hearing. It was not based purely on papers that were filed, so all parties made their submissions and the court has resolved that it will make a judgment tomorrow at 2pm.

“The judgment will be a determination on the facts, a final determination of that petition. It will make a declaration … whether or not president-(elect) Mugabe was duly elected or whether president-(elect) Mugabe was the winner of this election.

“The Constitution stipulates that there must be a hearing and a determination of the case,” Hussein said.

“It is not possible to just file a withdrawal without the court issuing a determination.”

In a statement soon after the court hearing, Tsvangirai said the highest court of appeal on constitutional matters “seems zealous to proceed with the case nevertheless.”

“What a charade... The Constitutional Court has insisted on hearing and determining the presidential election challenge which I withdrew after realising the case was being sabotaged and the outcome was predetermined,” Tsvangirai said.

“The Electoral Court sat on the case in which I was demanding that the Zec releases this material and now I am being forced to proceed with the Constitutional Court case without the material which would have proven the massive July 31 vote rigging.

“Well, they can make their determination but it remains a charade in the absence of material required to expose the rigging.”

The 61-year-old opposition leader said it was impossible for him to pursue the case without access to crucial evidence from the electoral body.

MDC spokesperson Douglas Mwonzora told reporters soon after the Con-Court hearing that the court process was “akin to being forced to playing a football match with one leg tied.”

“The referee is insisting that we should play that match,” Mwonzora said.

“We are saying that we do not have key material to use to prosecute this case and we thought that the Constitutional Court should come to our rescue and order that we get that material but nobody is interested in giving us the material that we want.”

Mwonzora said the MDC came to court “out of courtesy and out of respect of the institution” not because it was enthusiastic with going to court.

“It was going to be an unfair hearing anyway and we are happy that it is over,” Mwonzora said.

Obert Gutu, the outgoing deputy minister of Justice and Legal Affairs, said the decision to pursue with the court case lacked legal and factual support and does not stand the test of constitutionalism.

“There is absolutely no provision in the new Constitution of Zimbabwe that precludes and or prevents a presidential election challenge from being formally withdrawn before the date it has been set down for hearing in the Constitutional Court,” Gutu said.

“This is the correct position within the realms of constitutional law locally, regionally and indeed, internationally.”

Trevor Maisiri, a senior analyst with the International Crisis Group, said the MDC will have to comply with the Constitutional Court’s order to avoid being held in contempt.

“Implications of being in contempt of the Constitutional Court have serious ramifications in the MDC’s legal record,” Maisiri said.

“I think the Constitutional Court case will be weakened by the lack of evidence that the MDC failed to obtain from Zec. So what the two sides will achieve or not achieve from this case are mere political semantics but nothing tangible that will alter the election outcome.”

Comments (10)

Where the judiciary system tears the country's constitution that governs the country and goes Kangaroo, then Zimbabweans should disobey such Kangaroo courts. One way to do this is civil disobedience, with minimum risk especially to those at the front of fighting for democracy. However this minimum risk can never be attained if the leadership is still within the reach of such Kangaroo courts. Beyond the Kangaroo Courts, lies a heaven of freedom where Civil disobedience can be sustainably fought.

Ziziharinanyanga - 20 August 2013

what do you expect from a regime composed of oppressors (zanupf)I told earlier on a dictator can completely strip you all your human rights& dignity in order to achieve its demonic agenda.Does it make any sense going to a constitutional court without critical materials of evidence & a court composed of judges appointed by a dictator not on merit but on political affiliation it mere waste of time .But what can you do when you under the reign of a cruel oppressor he can even force to celebrate stolen election its a pity

eriah munene - 20 August 2013

Morgan: Refuse to go to the Kangaroo court. All they want is to make the dismissal of your case 'LEGAL' so that you legitimise the fraudulent election. It is only then that the so called inauguration of Mugabe the THIEF, will have a semblance of respect. It does not matter what Chidyausiku says, the JUDICIARY in Zimbabwe is partisan and heavily compromised. You tell me a single judge who has the spine and guts to rule against Robert Matibili Mugabe?

Bonface Chidyamasikati - 20 August 2013

i can see a commission of inquirer come 2018,with this kind of behavior it will be very challenging for the nation to smoothy move forward in every facet,let keep praying for Zim,We all know that Sadc wil never do us any good,we want favour with E.U,USA,UK etc

preacher - 20 August 2013

"Prime Minister Morgan Tsvangirai was not consulted when President Robert Mugabe “unilaterally” appointed six new judges on Monday" - (18th July) -an illegal act under the new Constitution, plus officially the GPA was still in effect. Mugabe and ZPF are truly thieves, liars and incredibly evil!

Chivula Mapoti - 20 August 2013

with time I hear Chidyahusiku saying 'it was a moment of weakness' he wanted Morgan Tsvangirayi to legitimize this Kangaroo court. Now Botswana has told us that these people can lie because Botswana made its conclusion not from what Tsvangirayi or MDc said but what it saw and what we saw.

maita - 20 August 2013

I wonder how much this Chidyasuku guy got for finally putting Saeal of approval in the stolen Vote, but soon it will change

Mfana Ka Sobhuku... - 21 August 2013

ALL he above comments show poor understanding of the constitutional matters of the country. What a support base of demi literate blinked supporters. The supporters are a danger unto themselves because the law goes on to say ignorance is no excuse.

reason - 21 August 2013

Gbagbo weku ivory coast refused to leave power after he was defeated, but now he is at the ICC only time will tell theCHIHURIS,TOMANAS,CHIWENGAS,ZIMHONDIS,CHINAMASAS,CHIDYAUSIKUS,BHUNUS,SHAMUS,MUPOFUS,MUNANGAGWAS the day mugabe is gone plz watch out

ERATHQUAKE31JULY - 21 August 2013

Civil disobedience is not adequate. Force is needed to reclaim human dignity. Chidyausike must feel the heat, peoples' anger

never dhliwayo - 21 August 2013

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