adminHerald Reporter
THE Zimbabwe Electoral Commission says MDC-T official Mr Jameson Timba cannot be allowed to open or examine electoral records because he did not make any petition before the courts. In submissions filed at the Electoral Court, ZEC lawyer Mr Tawanda Kanengoni argues that the production or opening of sealed ballot boxes could only be done for the purposes of instituting or maintaining a criminal prosecution, or for the purpose of a petition questioning an election or return.
Mr Timba is challenging the election in which he lost the Mount Pleasant National Assembly seat to Zanu-PF’s Cde Jason Passade.
He is seeking to invalidate the victory of Cde Passade on the basis that ZEC issued conflicting results for Mt Pleasant.
Mr Timba argues that at the constituency centre, ZEC allegedly announced 18 092 valid votes were cast, then at the national command centre, announced that only 12 165 valid votes were cast.
Mr Timba wants an authority to open and examine electoral records on an urgent basis.
However, the ZEC argues that the simple interpretation is that there must be in existence an election petition questioning an election or return, before one can seek to question an election or return.
“There is no such application before this Honourable Court and therefore the relief sought is incompetent.
“The reasoning is simple one cannot seek to gain access to evidence to establish/make cause of action. This is what the applicant seeks to do,” submitted Mr Kanengoni.
ZEC further argues legislative provisions clearly spell out that the materials sought to be accessed could only be done so through a court order and such must be the preserve of persons who have shown seriousness in pursuing their challenges to any election by filing an electoral petition first.
“The present application is akin to seeking to compel the discovery of documents before the issuance of summons in a matter, or the seeking of stay of execution before an application for rescission of judgment has been filed. The relief sought herein is not competent,” argues ZEC.
Justice Joseph Mafusire provisionally deferred the matter to today.
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