Case not in Electoral Court’s jurisdiction: President

Daniel Nemukuyu Senior Reporter
PRESIDENT Mugabe says the Electoral Court has no jurisdiction to decide on issues relating to presidential election challenges and that it should decline to hear the two applications by MDC-T leader Mr Morgan Tsvangirai to compel the Zimbabwe Electoral Commission to release some election material.

Advocate Fred Gijima, who is representing President Mugabe in the matter, yesterday raised the jurisdiction issue as a preliminary point in the application for the release of the materials and urged the court to throw out the case on that basis.

Attorney-General Mr Johannes Tomana, through his representative Adv Farai Mutamangira, raised the same argument, adding that Mr Tsvangirai was approaching the court with dirty hands and that he should be denied audience in the courts.

Mr Mutamangira argued that Mr Tsvangirai, through his party’s dossier filed in the main petition at the Constitutional Court, scandalised the Judiciary insinuating it was biased towards Zanu-PF hence Mr Tsvangirai’s cases should not be heard.

The parties also argued that Mr Tsvangirai’s cases lacked urgency, considering that he filed on the eve of the expiry of the seven-day period allowed to file presidential election petitions.

ZEC lawyer Mr Tawanda Kanengoni added another preliminary point arguing that Mr Tsvangirai failed to cite the other presidential candidates who participated in the election, rendering the application defective.

Justice Chinembiri Bhunu, sitting as the Electoral Court, yesterday reserved judgment on the four preliminary points.
Speaking after the chamber hearing, Adv Gijima said the applications should fail on the issue of jurisdiction.

“We argued that the Electoral Court has no jurisdiction to hear applications related to the petition of the election of a President among other issues. The most important issue is that of jurisdiction. Judgment has been reserved and it will be handed down in due course.

“Whatever applications relating to any dispute arising out of the election of the president, that is removed from the Electoral Court and jurisdiction only lies with the Constitutional Court.

“The two applications should fail on that basis,” said Adv Gijima.
Adv Mutamangira said the dossier attached to the petition filed by Mr Tsvangirai at the Constitutional Court insulted the judiciary and that the politician should be denied right of audience in the courts.

“We said the applicants have approached the court with dirty hands. In the petition, Mr Tsvangirai’s lawyers attached a dossier of material prepared by the MDC-T, in which they insulted our Judiciary. They said our Judiciary is partisan and biased towards Zanu-PF.

“We said no, you cannot appear before the Judiciary that you have insulted,” he said.
In a related case, Justice Joseph Mafusire has postponed to today the urgent chamber application by Mount Pleasant national assembly losing candidate Mr Jameson Timba, who is challenging the outcome of the election.

Meanwhile, Chief Justice Godfrey Chidyausiku met the lawyers involved in the main petition filed at the Constitutional Court and ruled that the two preliminary points on the main petition should be heard on Saturday.

The main point is whether evidence should be led from witnesses in the case or the matter should be heard basing on the information filed of record.

Adv Mutamangira and Adv Gijima, who are representing the AG and President Mugabe, argued that the matter should be heard as an application based on the papers filed while Adv Lewis Uriri and Mr Chris Mhike want a trial to be conducted to allow evidence to be led from witnesses.

Adv Gijima said a trial would delay the process and the court would not meet its 14-day period to determine the matter.
The court is also set to hear arguments on whether or not the AG, who was not cited in the petition, could be granted audience in the matter.

The AG argues that he has to be part of the proceedings.
The parties were ordered to file all the relevant papers for the case by tomorrow ahead of the hearing on Saturday.