via ZEC opposes material opening | The Herald November 7, 2013 by Zvamaida Murwira
ZIMBABWE Electoral Commission chairperson Justice Rita Makarau has said MDC-T losing candidate for Mt Pleasant Mr Jameson Timba cannot be allowed to open or examine election material since doing so would impact on presidential and local authority records as the July 31 election was a harmonised poll.
In her submission before the Electoral Court on an application by Mr Timba to have access to the material, Justice Makarau said only the Constitutional Court could order opening of presidential electoral material.
But she said there was no way Zec could open National Assembly election material without doing the same on other records in respect of the presidential polls. The MDC-T filed an application disputing the presidential polls before withdrawing it. The petition was subsequently dismissed by the court.
Mr Timba lost the Mt Pleasant seat to Cde Jason Passade of Zanu-PF who got 7 920 votes compared to his 3 800.
Justice Chinembiri Bhunu reserved judgment on the application by Mr Timba after lawyers from both parties made submissions in a hearing characterised by flaring tampers.
In her affidavit filed on Tuesday, Justice Makarau submitted that since it was a harmonised election, there was use by Zec of one copy of the voters roll for the presidential, parliamentary and local authority election. This, she said, meant that all protocols kept by the Commission related to the three elections in terms of statistics such as turned away voters, reasons thereof and number of assisted voters.
“Applicant does not and can not seek relief with respect to the Presidential and/or local authority elections in Mt Pleasant constituency, yet and this is where the difficulty arises for the Commission,” said Justice Makarau.
“The residue he seeks, in particular the sealed packets indicated in Section 70 (1) of the Electoral Act relates to all three elections conducted on the 31st of July 2013.”
Justice Makarau submitted that the application be dismissed. Over the past weeks, the lawyers have been meeting in Justice Bhunu’s chambers to explore ways to narrow their differences and possibly come up with a consent Draft Order. In yesterday’s proceedings, there was dispute on the interpretation of what transpired in Justice Bhunu’s chambers.
Mr Timba’s lawyer, Mr Trust Maanda said they had agreed on a consent order to open election material, but it had been left for the court to determine whether or not the electronic voters roll should also be made available.
Mr Maanda accused Zec lawyers, Mr Tawanda Kanengoni and Mr Charles Nyika of coming to court without full instructions from their clients after the electoral body subsequently refused to have the material opened. Mr Nyika disputed Mr Maanda’s stance, saying they had agreed on a Draft Order subject to ratification by their clients.
Justice Bhunu said there was never a consent order he entered, saying he merely listened to the lawyers’ discussions in his chambers. Mr Maanda then submitted that the other parties be barred from being heard since they filed their papers out of time. He said the application had been filed on August 20, but the response only came on November 5 through an affidavit by Justice Makarau. But Nyika disputed that, saying the fact that Justice Bhunu had reserved judgment on whether or not electronic election material should be made available meant that no party was in default.