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Daniel Nemukuyu Senior Reporter
PRESIDENT Mugabe’s lawyer Advocate Fred Gijima says the withdrawal of an election petition by MDC-T leader Mr Morgan Tsvangirai is a nullity because it is not provided for in the Constitution of Zimbabwe. Adv Gijima said today he will raise the argument in court when the parties meet in line with a directive by Chief Justice Godfrey Chidyausiku.
Last Friday, Justice Chidyausiku ordered that lawyers representing President Mugabe and those representing Mr Tsvangirai in the case in which the MDC-T leader was challenging President Mugabe’s victory should meet today at the Constitutional Court.
Adv Gijima argued that in terms of the new Constitution, there is no provision for the withdrawal of a petition filed challenging the election of a President.
“Tomorrow (Monday) we are going to challenge the purported withdrawal of the petition by the applicant. It is unprocedural because in terms of the new Constitution, there is no provision for the withdrawal of such a petition,” said Adv Gijima.
“The petition challenging the election of a President is different from that of National Assembly seats that can be withdrawn at any time in terms of the Electoral Act. A petition against the election of a President is no longer provided for in the Electoral Act, but it is now found in the Constitution.”
Adv Gijima argues that the petition was still pending before the Constitutional Court and it has to make a determination.
“The Constitutional Court is still seized with the matter and it has to make a determination based on the papers filed of record in order to bring finality to the petition. We are ready to argue that case,” he said.
Zimbabwe Electoral Commission lawyer Mr Charles Nyika of Kanengoni and Nyika law firm said Mr Tsvangirai should formally make the withdrawal in court.
Mr Nyika said Mr Tsvangirai raised serious allegations against many people and organisations in his petition.
For that reason, he said, the MDC-T leader could not withdraw without justifying the claims.
“The withdrawal has to be formally done in court. There are serious allegations that Mr Tsvangirai raised in his petition, especially against the Judiciary. We also want to hear how he arrived at that,” he said.
Mr Nyika said Mr Tsvangirai withdrew his petition after receiving a notice of opposition to the petition by ZEC which crashed all the allegations raised in the petition.
“The notice of withdrawal was filed after we had just filed and served ZEC’s notice of opposition.
“The notice of opposition had an effect of destroying Mr Tsvangirai’s case because it had everything. We even attached the discs and other relevant evidence to dismiss the claims by Mr Tsvangirai,” said Mr Nyika.
ZEC chairperson Justice Rita Makarau on August 4 declared President Mugabe as duly elected President of Zimbabwe.
President Mugabe won 61,09 percent of the votes, while Mr Tsvangirai got 33,94 percent.
Zanu-PF also won a two-thirds majority to dominate the forthcoming National Assembly.
Last Friday, Mr Tsvangirai withdrew his election petition from the Constitutional Court, hours before the court sat to determine the preliminary points raised in the petition.
The preliminary points, whether or not evidence should be led from witnesses in the petition and whether or not the Attorney-General should be allowed to join the proceedings, had been set for hearing on Saturday.
The last-minute withdrawal of the case led to the cancellation of the hearing and the subsequent directive for parties to appear in court today.
According to Mr Tsvangirai’s withdrawal affidavit, the main reason for the decision was that he had not been furnished with the election material he requested at the Electoral Court.
He also cited Chief Justice Chidyausiku’s presence at the National Heroes’ Acre where President Mugabe gave an address as a factor that could deprive him of the right to a fair hearing.
Howver, sources said Justice Chidyausiku is likely to recuse himself from chairing the nine-member bench presiding over the case today.
Close sources told The Herald yesterday that although the Chief Justice will be part of the team, Deputy Chief Justice Luke Malaba might preside over the matter that is if he is around given that most judges are on vacation.
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