via Prof Moyo ‘blundered’ – Southern Eye 15 January 2014 by Silas Nkala
BULAWAYO High Court judge Justice Martin Makonese yesterday reserved judgment in the election petition case pitting Information, Media and Broadcasting Services minister Professor Jonathan Moyo and Tsholotsho North MDC-T National Assembly representative Roseline Nkomo following the presentation of arguments by their lawyers.
Late last year, Moyo withdrew his petition against other respondents, but still challenged Nkomo’s victory. The other respondents were Zimbabwe Electoral Commission (ZEC) chairperson Justice Rita Makarau, chief elections officer Lovemore Sekeramayi, Registrar-General Tobaiwa Mudede, Tsholotsho district registrar Thandiwe Mlotshwa, district elections officer for Tsholotsho Ewan Zelebu Dube, constituency elections officer Sibongile Sayi and provincial elections officer for Matabeleland North Mark Ndlovu.
Yesterday Nkomo’s lawyer Kucaca Phulu presented heads of argument indicating that the petition was fatally defective and a nullity because of its failure to specify the grounds upon which it is based.
“The exact relief that the petitioner seeks does not appear ex facie (of it) the petition, again such is left for the court to fish and find from the petitioner’s founding affidavit and prayer,” said Phulu.
“This petition exhibits no grounds ex facie upon which the petition is based; further the full names and addresses of specifically named persons who allegedly involved themselves in electoral malpractices or illegalities have not been mentioned.
“Accordingly, the petitioner has invented his own manner and method of presenting an election petition, outside the provisions of the statute,” Phulu argued.
He said overally, the petition lacked specifics and was instead characterised by Moyo’s subjectively loaded opinions, generalisations and vague accusations of electoral impropriety mainly levelled at ZEC.
Throughout the petition, Phulu said Moyo did not specifically allege any electoral law infractions by either the respondent or its agents.
“The petitioner’s gripe seems to be with the electoral body and/or its officials, and as that is so, the petitioner’s remedies lie in an application for review,” he said.
In response, Moyo’s lawyer Terence Hussein argued that the petition was properly drafted and the objection to the affidavit as a separate document was a futile attempt to avoid a trial.
He argued that the petition was essentially premised on Section 177 of the Electoral Act which states that an election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if it appears to the court that the poll was not conducted in accordance with principles laid down in this Act.
“One does not on terms of this section have to attribute a malpractice to the respondent or her agent. There is reliable case authority within this jurisdiction to support the setting aside of an election entirely upon the afore-quoted section, even where a malpractice has not been attributed to the respondent or her agents,” Hussein argued.
He said the court had indicated that when attacking the conduct of the election by ZEC, one was not permitted to cite it as a respondent, but the winning candidate only with the rationale being that ZEC was the referee.
This was so that ZEC could be called as a witness that is not owned by either party.
“The objection on alleged lack of particularity is therefore without merit and should be dismissed,” Hussein said in his argument.
Moyo of Zanu PF lodged a complaint with ZEC soon after results were announced in August last year seeking a recount of the votes citing numerous anomalies in the process.
According to affidavits by Moyo’s polling agents that are attached to the petition, some presiding officers allegedly conducted the counting process in the absence of the polling agents. Moyo alleged that there were a lot of irregularities in wards one to nine as well as Ward 21 and sought nullification or a rerun within 90 days from the day of determination by the Electoral Court.
He said his election agent Vincent Moyo and more than 225 Zanu PF polling agents reported incidents of inconsistencies, which compromised the authenticity of the results. Moyo alleged that at Manjelegwa Tent Polling Station, the presiding officer Irvine Nkomo arrived at Kapane Primary School collation centre without V11 forms and further alleged that he had wrongfully put them in one of the ballot boxes.
He said the ballot box was opened without a court order while at Mazwi Tent polling officers openly undercounted votes that were in his favour.