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Daniel Nemukuyu Senior Reporter
The Electoral Court has thrown out an application by MDC-T official Mr Jameson Timba in which he was seeking to compel the Zimbabwe Electoral Commission to allow him to open sealed ballot boxes and to inspect the election material.Mr Timba lost the Mount Pleasant National Assembly seat to Zanu-PF’s Cde Jason Passade in the election held on July 31 this year.
Justice Joseph Mafusire ruled that Mr Timba’s case could not succeed because the law required him to first file a petition before seeking access to the election material.
“In the result, I find that the applicant’s request for the opening of the ballot material for the Mount Pleasant constituency in respect of the July 31, 2013 harmonised election in the absence of a petition actually filed by him and lodged with the registrar of the electoral court as contemplated by Section 167 as read with Section 168 of the Electoral Act, has been made pre-maturely.
“Therefore, the urgent chamber application is hereby dismissed with costs. With the disposal of this single point, I have found it necessary to decide the rest of the other points in contention,” ruled Justice Mafusire.
Upon receipt of the judgment, Mr Timba could be seen milling around the High Court building going through the judgment while his lawyers were queuing to file the petition.
In the evening, the lawyers managed to file the petition with other losing candidates.
Mr Timba, who cited numerous irregularities in the conduct of the poll, wants access to the records to prove that the election results were manipulated. Among a cocktail of irregularities he listed in his application, is the varying constituency results announced by ZEC, as well as issues related to the voters’ roll.
Advocate Thabani Mpofu acted for Mr Timba while Mr Tawanda Kanengoni and Mr Charles Nyika represented the commission in the chamber application.
Mr Timba also wants to invalidate the victory of Cde Passade on the basis that ZEC issued conflicting results for Mt Pleasant.
In submissions filed at the Electoral Court, ZEC lawyer Mr Tawanda Kanengoni argued 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 argued 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. He wanted authority to open and examine electoral records on an urgent basis.
However, ZEC argued that the simple interpretation is that there must be in existence an election petition questioning an election or return, before one could seek to question an election or return.
ZEC further argued 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.
Meanwhile, scores of MDC-T losing National Assembly candidates were last night involved in a last minute filing of election petitions, a development that forced the Electoral Court’s registry to operate until 9.30pm.
At least 89 candidates, including Mr Jameson Timba who lost the Mt Pleasant constituency in Harare, Mr Eric Knight (Mbare), Mr Ian Kay (Marondera Central), Mr Jason Matewu (Buhera West) and Mr James Gumbi (Zaka East) successfully filed their petitions.
National Assembly losing candidates, according to the electoral law, are expected to file their petitions within 14 days after the announcement of the results and yesterday was the last day.
The lawyers started trickling to the court around 5pm and the registry staffers were busy accepting petitions until 9.30pm when they locked their doors.
Most of the petitioners complained of intimidation of voters by the traditional leadership, non-provision of the electronic voters’ roll, vote-buying, turning away of voters and others.
Mr Kay indicated in his petition that Zanu-PF politicians in the constituency would deliver truckloads of cabbages, day-old chicks, mealie-meal, footballs, football uniforms and cash to the people to lure them into voting for the party.
He argued such donations amounted to vote-buying and was not acceptable in terms of the electoral laws.
He also raised concern over the number of voters who were assisted to vote, which he viewed as a loophole that can be capitalised to rig elections.
Mr Lovemore Kadenge, who lost the Chikomba East seat to Cde Edgar Mbwembwe, stated in his papers that the traditional leaders in the constituency threatened to evict any person who did not vote for Zanu-PF and that the voting process was flawed.
Mr Silas Gweshe, who lost to Cde Biggie Matiza in Murewa South, claims his campaign posters were consistently pulled down or torn and that violence broke out in the constituency resulting in some houses being destroyed.
He claims that the police upon receiving the reports of violence, did not take any action.
Online Reporter