adminincompetent to the extent that they overlooked basic human rights infringements in passing the judgment in favour of Mr Jealousy Mawarire.
After the judgment, MDC-T that is resisting going to the elections due to its plummeting popularity teamed up with donor-funded lawyer organisations and law firms, that are operating in cahoots activities with the formation to effect illegal regime change to draw up a “Strategic Election Litigation’’ plan with a view to sabotaging the ruling.
The team agreed to file frivolous and vexatious applications to frustrate the electoral process that went a gear up with the adoption of electoral amendments by Cabinet on Tuesday.
The first case, as reported in NewsDay, involves a Bulawayo woman, one Maria Phiri who filed a Supreme Court application seeking to overturn the Constitutional Court ruling arguing that proclamation of a nomination date and polling date must allow for a 30-day intensive voter registration up to July 10.
The second case, as reported by the Daily News, involved an unnamed Harare man represented by Dube, Manikai and Hwacha Legal Practitioners; who claimed that “his rights would be violated if elections are held before July 31.’’
“Anyone who is going back to Court challenging the July 31 date is at risk of undermining the judges who adjudicated over the case,” said constitutional law expert Professor Lovemore Madhuku.
“The jurisprudential effect of these applications is to allege infringement of the Constitution by the judges themselves which might require them to recuse themselves and putting in place of a new Constitutional Court for the purpose of hearing those applications which is a mountain to climb.
“At the core of the applications is a suggestion that the judges are incompetent and were unable to foresee such an obvious thing as a 30-day voter registration. Their applications are child’s play.
“They expect the judges to then agree that ‘okay, we overlooked this point, we overlooked that point’. It’s more like seeking an apology from the Constitutional Court.
“In a democracy we must allow litigants to go to court because that means people respect the law. But what I do not understand from one of the applicants is that he alleges that the judgment infringes on anyone’s rights by holding an election when it is due in terms of the law. That will be a very difficult legal argument.”
The University of Zimbabwe don said the applications were not going to stop the country from complying with the July 31 deadline.
He said the first hurdle faced by litigants would be to make the Court rule in their favour that the matter was urgent, failing which, the case could be heard even way after the elections.
“The decision of the Court stands until it makes a different ruling because a mere filing of an application does not affect the decision of the highest Court in the land.
“The situation is different from when you note an appeal against a decision of a lower Court to a higher Court, in that situation the noting of your appeal suspends the decision appealed against but that does not apply when it is a decision of the highest Court itself.
“The decision of the Constitutional Court stands. Those who are bound by the decision like the President they are actually expected to comply with the ruling even if there were one million other applications being taken to court.”
Mr Terrence Hussein of Hussein and Ranchod law firm said the applicants and the lawyers representing them risked being punished by the courts.
“The public has a right to file whichever court application they want but they should also understand that the Court has inherent power to protect itself against abuse.
“If the Court believes that an application is frivolous, not only will it dismiss the application, but it will punish the litigants with an order of costs. The Court can go even further by ordering that the lawyer who presents such frivolous applications before the courts pay the costs personally. Such a lawyer will then be referred to the Law Society to be appropriately disciplined.
“It is also a disciplinary offence for a lawyer to present nonsensical applications to the courts. The Constitutional Court’s judgments cannot be impugned. The challenge is not something that can be taken seriously,” said Mr Hussein.
Political analyst Dr Lawton Hikwa said it was unlikely that the applications would succeed.
“The Constitutional Court is regarded as the highest and final Court and therefore its ruling under normal circumstances is final and cannot be challenged.
“Depending on the circumstances that the litigants have, the Court may possibly be persuaded to make an extension in terms of the dates that it has ruled that elections be held no later than July 31, 2013 but given the circumstances and merits of the case. But under normal circumstances that judgment should be looked at final and therefore incontestable,” said Dr Hikwa who is the Executive Dean of the Faculty of Communication and Information Science at the National University of Science and Technology.
Mr Jonathan Samkange of Venturas and Samkange law firm said the applications lacked merit and were an insult on the Constitutional Court.
“This is what we call an abuse of the Court process. Lord Genning in his book ‘The Due Process’, talks a lot about abuse of the due process, when people come to Court just to waste the Court’s time, which is what they are doing. This is disrespect. Its contempt of that Court if one is going to make some silly applications like that.
“The Constitutional Court can’t deal with that subject again because it will be like hearing an appeal on its own decision, which they can’t do. That application is misconceived. You can’t go to the Constitutional Court and say ‘the order you have given is going to oppress me’. What do you want the Constitutional Court to do? It is not the President who said ‘I want the elections to be held by no later than the 31st’.
“It is the Constitutional Court that ordered the President to hold elections by no later than July 31.
“How can the same Court then say ‘if the President is complying with our order he has infringed your rights?’ How can it do that? Because the President is just complying with the Court ruling. This is the rule of law. It says you must obey the Court ruling,” said Mr Samkange.
Another legal expert, Mr Farai Mutamangira added: “I believe the Constitutional Court on the question of the holding of our harmonised elections is now functus officio. The Court has already made its decision and there is no going back.
“There is no argument which the Constitutional Court did not consider in making a determination. It looked at all the facets that could possibly be material to the determination including voter registration and the issue of the nomination Court.
“In making an order directing that elections should be held by not later than July 31, the Court had already considered those issues. These applications are an afterthought and they are an attempt to insult the integrity of the Constitutional Court.”
Online Reporter