Constitutional Court decision surprises experts

via Con-Court decision surprises experts – DailyNews Live by TENDAI KAMHUNGIRA

Commentators have expressed surprise at the decision by Chief Justice Godfrey Chidyausiku to summon to court today all parties involved in outgoing Prime Minister Morgan Tsvangirai’s election challenge following the withdrawal of his petition on Friday.

Tsvangirai had filed a Constitutional Court application seeking nullification of president-elect Robert Mugabe’s win.

The Zimbabwe Electoral Commission (Zec) announced that Mugabe won by 61,09 percent, while Tsvangirai got 33,94 percent, but the MDC leader said the election was rigged and demanded a re-run within 60 days.

But Tsvangirai dropped the legal challenge arguing he will not get a fair trial after the High Court delayed judgement in another case seeking access to full details of the results from the electoral commission.

After the withdrawal, Chidyausiku instructed all parties to appear before the Constitutional Court today, amid State-controlled media reports that a determination will be made notwithstanding Tsvangirai’s withdrawal.

Some legal experts said Tsvangirai’s withdrawal of the court case should put the case to rest and pave way for Mugabe’s inauguration.

The instruction for the parties to appear before the Constitutional Court has left some experts bewildered.

McDonald Lewanika of Crisis in Zimbabwe Coalition said, Zanu PF was eager to go through the court process to vindicate its win.

“The game now is to ensure that Tsvangirai is not only down but is kept out — through a triple-thronged defeat — electorally (election results), politically (Southern African Development Community endorsement) and legally (legal failure at the Con-Court),” Lewanika said.

Kudzayi Kadzere, a Harare lawyer, said by summoning the lawyers, the Chief Justice probably had something to say.

“They are the apex court in the country, the final arbiter and so they are empowered with wide powers, but it is curious why they want to hear a withdrawn matter,” Kadzere said.

Analysts say in all likelihood, pursuing the election challenge in court would not have resolved the political crisis.

“I said it before that the political crisis is too serious, that it is judicially insoluble in the current context,” said leading rights lawyer and MDC MP-elect for Dangamvura-Chikanga, Arnold Tsunga.

“Morgan did the right thing and probably the only thing that was left of him and he must be congratulated.”

In a statement, Tsvangirai said he withdrew the application after a resolution was reached by his party’s national executive, after his failure to secure evidence to bolster his case from the Zimbabwe Electoral Commission.

He also cites the court’s narrowing down of the petition to one based on affidavits, rather than going to trial, where several witnesses would be called to testify.

“Because of those two roadblocks placed our way it was futile to proceed with the case. It became very clear to us that this case was being predetermined,” Tsvangirai said.

He added: “Many of you have been made to believe that this marks the end of the road for us, that by withdrawing the court case, we have conceded defeat. Nothing could be further from the truth.

“The struggle has not ended. It is just starting. This was just the legal route. The struggle continues in the political arena. We have never closed our avenue to continue with the political struggle. This is a political crisis and it requires a political solution.”


  • comment-avatar
    Aaron Dzingira 8 years ago

    Im not a lawyer. However, Im suprised that so-called experts here all fail to acknowledge the fact that the burden of proof rests with the complainant. By going to court to demand proof, Tsvangirai demonstrated the quality of advice he is getting. You go to court with proof, not to demand proof from the respondent. Please remember when you write your articles that while you can fool some of the people some of the time, you cant fool all of them all the time.

    • comment-avatar
      jumbe 8 years ago

      You are the fool mate, you go to court to demand justice which can be anything.If the respondent was not forthcoming with said evidence then it was prudent for plaintiff to demand this before the court to prove that his case lay in the said evidence. Lets not be stupid and play politics with justice,it is the only institution tasked with ensuring that criminals do not get away with injustices and as such it must not be see to be biased or ignoring credible issues.Why is it that ZEC does not want to release the material, the electronic voter’s role etc if there is nothing to hide.

    • comment-avatar
      Kevin Watson 8 years ago

      Wrong you are clearly not a lawyer and in civil matters before that matter can be heard both complainant and defendent have the right to compel discovery. The Registrar General would in a democracy under the rule of law have been charged with contempt of court for failing to comply with a court order (to supply an electronic version of the voters role) and he would be incarcerated until such time as it was delivered. Furthermore in a democracy under the rule of law the election would have been nullified because Mugabe acted outside his constitutional powers in calling the election as well as because the Electoral Act was not complied with. There is a legal dictum which for your benefit goes like this “nothing legal can come out of an illegal act.”

    • comment-avatar
      Chitova weGona 8 years ago

      Let other issues you are not knowledgeable about pass mface.

    • comment-avatar
      Morris 8 years ago

      Aaron you are playing politics with legalities. The police can go to court to get a search warrant, in such a situation the state (complainant) will be using the court to cause the suspect to avail evidence which can be used in a criminal case against the suspect. In this case it is more appropriate because ZEC is a state organ not a Zanu Pf organ. By asking ZEC to release information the MDC was not asking Zanu Pf to implicate itself because the two are not one entity or at least they are not supposed to be one entity. Unless people say ZEC is Zanu Pf and Zanu Pf is ZEC. ZEC was supposed to avail that information and prove to MDC that indeed they lost a fairly contested election. So ZEC was supposed to do it for at least two reasons (1) To show that it is a state organ not and extension of one of the contestants (2) To show that it conducted a fair and credible election. By not availing information the same way it did not avail the voter’s roll ZEC has effectively demonstrated its lack of credibility. The problem here is that if people cannot trust state organs like ZEC, courts, police etc people will attempt to take it into their own hands to get justice which may have profound implications on peace and security in the country. Security apparatus will have their hands full beyond what is manageable because of this absence of credible state organs.

    • comment-avatar
      Chivula Mapoti 8 years ago

      Tsvangarai and his lawyers were not demanding anything from the Respondents, they were demanding access to the electronic Voters Roll and Official Election ballot results.
      These were either refused or decisions deferred – so they had no case.
      Plus, instead of having an open and fair Court, the Judge limited complaints to affidavits instead of open argument.
      What a corrupt, ZPF ‘Con’ Court, apt name eh!

  • comment-avatar
    Hango Yapalala 8 years ago


  • comment-avatar
    Hango Yapalala 8 years ago


  • comment-avatar

    do i have to remind you tsvangirai that the party you are leading is framed by the logo of democracy , people have spoken, if their choice becomes a fiasco its ok let them enjoy the the test of their medicine, what do you mean about fighting politically , if u are talking about your west receivers i suggest you start about this seriously , what used to be labelled propagandistic will sound true to our eyes, . if u love Zimbabwe forget about your own interest , from what i see now you are the oysters person who can convince those guys to reverse them for it was your hardsweated work to invite them, haven’t you imagined yourself as a comedian, cuz you are good at that, your juicy policy made my decade

    • comment-avatar
      nesbert majon 8 years ago

      Dont fool us. Tsvangirayi represent the suffering voiceless Zimbabweans not Mugabe ass lickers like you. Like it or not we are behind him and we will support every thing he does to get to the bottom of this. Tsvangirayi is our hero. We dont care whst you utter or say. Your 89 year old leader is the one you must give advice. Leave our president Tsvangirayi alone and let him continue liberating us from our new black colonialists.

      • comment-avatar

        You re dead right Nesbert! I would wonder why are these faken Zanu idiots obscessed about hating MT, the truth is they know he has been beating them all systems out in all the elections he contested….! Thats why they have resorted to massive rigging….! Handiti idermocracy, saka ngavatisiye naMT wedu, imbwa dzevanhu…!

  • comment-avatar
    Qiniso 8 years ago

    What does the law say about withdrawal of such cases? Some expects say they is no provision for withdrawal so whats the suprise here? Can anyone help simple people like understand?

  • comment-avatar
    reason 8 years ago

    The major reason for withdrawal is that Bennet has locked up the cash box, after clearly seeing that the Lawyers were after rich pickings through the master blunder Tsvancry. The case was frivolous and no evidence, that is why the other party still wants the case to continue, besides the new constitution clearly states that you cant withdraw after submitting such a challenge to the con-court. A verdict is to be made, and costs included. I foresee the challenger going bankrupt. Some properties will be attached. That is the beginning of the end.

    • comment-avatar
      Chivula Mapoti 8 years ago

      That is idiotic commentary from ‘reason’ (not a suitable name).
      Tsvangarai and the MDC-T have more than enough money to go to Court.
      Now, you say “frivilous with no evidence”, when the ‘con’ Court won’t allow anyone to see the electronic Voter Roll.
      We wonder why, because Nikuv a fantastic ‘number’ in it and the old man sudden got votes where he never did before.
      In Gukurahundi territory – go figure!
      No evidence and frivilous you say?

  • comment-avatar
    ngwalongwalo 8 years ago

    Dzingira you are a fool becoz you are just blinded by the love of Zanu Pf, not obvious of the fact that Tswangirayi used th ony proper route to access information, are you not aware that ZEC is an institution and as such no one can just go and pick anything he/she wants form there, which night school did you attend that contributed to such dullness as yours, whereby even someone who di not go to school will know that the court is the only institution that can grant permission to access ballot papers and the electronic voters roll, I salute tswangirayi because he is I peace loving ctizen of the country and will alays do things by the book, unlike your Zanu Pf because which will do anything to make sure people like you remain suffering.

  • comment-avatar
    Mashinga P 8 years ago

    You guys does the electronic voters’ roll vote or rather does the voters’ roll vote. MDC failed to do the basic, ensure that its members register. ZPF ensured that 99% of its members registered. About the Co court, why look for evidence from ZEC when you had your agent at every polling station recording these anomalies. Were these agents sleeping at work. Which evidence can you rely on, your own or ZEC. Remember the voters’ roll does not vote

    • comment-avatar
      Chivula Mapoti 8 years ago

      The Voters Roll does vote – or should we say, what is contained in it!
      The Voters Roll, if clean, true and untampered with, (unlike ZEC’s and the Registrar-General’s Nikuv version), would be the ‘instrument’ that allows a credible ballot.
      Zimbabwe doesn’t have a clean, true and untampered with Voters Roll – it had a Voters Roll made in Israel!

  • comment-avatar
    adam jones 8 years ago

    the electronic version of the electoral roll should have been made available for scrutiny well before the elections. that that did not happen was a traversty in itself – let alone the denial of the roll to facilitate the court appeal process by the MDC. one day, the oppressed will prevail – and it don’t matter what chidyausiku/chihuri and other ‘chi’s does/says. his/their children will have no future in the new zim – and thats a fact. murombo nhasi – mupfumi mangwana and vice-versa.