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Fidelis Munyoro Chief Court Reporter—
The Supreme Court will decide whether there is a gap in the country’s electoral law which makes it impossible for losing candidates in an election to access election residue for use in prosecuting their petitions. In the appeal case brought by MDC-T’s Jameson Timba seeking to nullify the election victory of Zanu-PF’s Cde Jason Passade in the Mt Pleasant constituency last year, the Supreme Court was last week confronted with the question of whether or not the lower court had erred in rejecting Timba’s application.
This comes after the Electoral Court threw out Mr Timba’s application to be allowed access to the election material that he wanted to use in prosecuting his petition.
Justice Mavangira ruled that there was a gap in the law, which makes it impossible to grant Mr Timba the relief he sought.
Zimbabwe Electoral Commission lawyer Mr Tawanda Kanengoni and Mr Trust Maanda who appeared for Mr Timba largely abided by their heads of arguments.
Mr Kanengoni submitted that ZEC was consistent with its heads of argument that Mr Timba’s petition was heard before the Electoral Court and judgment was reserved.
He said Section 172 of the Electoral Act, provides that any appeal in a petition to Supreme Court can only be on an issue of law and not fact.
“If his petition has already been heard, then all the facts or evidence have already been placed before the Electoral Court and that the court is the one which would make a determination of these issues,” said Mr Kanengoni.
“It cannot re-open the leading of evidence because the six months limit for the determination of petitions has already lapsed.”
In the present case, Mr Kanengoni said there was a court that could competently hear further evidence that Mr Timba seeks through his appeal.
Mr Maanda argued that the six months limit no longer applied to the conclusion of petitions, hence it was possible for the evidence to be heard by the same Electoral Court.
He said his client was reasonably justified to seek access to the ballot boxes and sealed packets of the Mt Pleasant constituency.
Mr Timba wants to use the evidence in the prosecution of his petition which has already been heard by the Electoral Court and its judgment reserved.
Justice Vernanda Ziyambi sitting with Justices Elizabeth Gwaunza and Antonia Guvava reserved judgment to a later date.
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