Landmark Poll Petition Ruling Dominates 2018 Legal Calendar

By Fidelis Munyoro Chief

The year 2018 will forever be engraved in the country’s legal calendar after the Constitutional Court delivered a landmark election petition ruling in which losing MDC-Alliance leader Nelson Chamisa was contesting the victory of President Mnangagwa in the July 30 harmonised elections.

The proceedings were streamed live on television for the first time in the history of the Judiciary. Millions of viewers across the globe watched the poll petition hearing.

At the end, the top court confirmed President Mnangagwa’s victory, throwing out the opposition challenge that had held up his inauguration ceremony for almost three weeks.

In an unanimous ruling of the nine judges of the apex court, Chief Justice Luke Malaba said Mr Chamisa had failed to prove allegations of electoral fraud during the presidential vote.

Chief Justice Malaba spoke glowingly of the lawyers involved in the election petition for their dazzling show while putting across their arguments.

President Mnangagwa was represented by Advocates Lewis Uriri and Thembinkosi Magwaliba, while Advocate Chamisa had Advocates Thabani Mpofu and Sylvester Hashiti in his corner.

Mr Tawanda Kanengoni assisted by Mr Charles Nyika appeared for the Zimbabwe Electoral Commission (ZEC). After all had been done and said, Chief Justice Malaba had a few words for Zimbabweans when he praised them for showing confidence in the Judiciary and said they were entitled to make their conclusions on the matter because it was within the confines of the law to do so.

“Whatever views you take you, are entitled to the views,” he said.

“They are your views. However, at the end of the day, we are citizens of this country. We are Zimbabweans and we all have the right to belong. Let it be. I thank you.”

On lighter note, the proceedings also turned most Zimbabweans into “lawyers” as people could not resist throwing legal jargon into their conversation, be it in sermons in church, in presentations or light-hearted talk.

The year also saw two rival camps of the opposition MDC, one fronted by Adv Chamisa and the other Dr Thokozani Khupe clashing over ownership of the party name and symbols in March.

The dispute spilled into the High Court in Bulawayo.

In April, MDC splinter group led by Dr Khupe got the relief they wanted after Deputy Chief Justice Elizabeth Gwaunza ruled that their Constitutional Court application challenging her dismissal from Parliament had merit.

The judge held a hearing to determine whether the matter should be heard on an urgent basis or not.

After hearing arguments from both parties’ lawyers, Deputy Chief Justice Gwaunza ruled that the matter was urgent and said that it should be argued before the full bench of the Constitutional Court.

Deputy Chief Justice Gwaunza then said that the matter will be heard on the 30th of May.

Dr Khupe, who was the MDC-T Proportional Representation Member of Parliament was expelled from the National Assembly after the then MDC-T leader Chamisa wrote to the Speaker of Parliament, Advocate Jacob Mudenda, claiming that she no longer represented the opposition party’s interests.

In her application at the Constitutional Court, former MDC-T vice president Khupe accused Parliament of failing to protect her tenure as a Member of Parliament as required by Sections 119(1) and 129 of the Constitution of Zimbabwe, when it endorsed her expulsion from the National Assembly.

The full hearing of the matter was concluded in October after all the parties presented their arguments.

Chief Justice Malaba, in concurrence with all the other judges, reserved judgment in the matter to a later date.

In May, Justice Francis Bere dismissed Adv Chamisa’s application that was brought under a certificate of urgency.

In his ruling, the judge noted that there was a constitutional crisis in the MDC-T and the matter was not urgent because Adv Chamisa had not been confirmed by an impartial body to be the rightful heir to the MDC-T throne.

The dispute ended up in the Supreme Court, which upheld an appeal by Adv Chamisa.

Justice Paddington Garwe, sitting with Justices Anne-Marie Gowora and Antonia Guvava, set aside a High Court ruling, allowing Dr Khupe and her followers to use the opposition party’s logo and emblem.

In his decision, Justice Garwe quashed the lower court’s ruling and referred the matter back to the High Court to be heard under a different judge.

In yet another case that was heard during this legal year, the People’s Democratic Party then led by Tendai Biti, lost its attempt to force the ZEC to alter the composition of the ballot paper used for the presidential candidates in the July 30 general elections.

Mr Biti had a bad day in court after Justice David Mangota threw out his party’s application, saying the political outfit’s case was devoid of merit.

In the application, the Biti-led party had approached the court, demanding an order declaring that the ballot paper’s design was inconsistent with the Constitution of Zimbabwe, the Electoral Act and the principal electoral regulations.

After the presidential poll petition, the Electoral Court saw a flurry of election petitions from many losing parliamentary candidates from both Zanu-PF and MDC-Alliance challenging the victory of their opponents.

MDC-Alliance party had the highest number with 37 petitions filed with the Electoral Court in Harare, seeking to challenge the outcome of the July 30 National Assembly and council elections, most of which were won by President Mnangagwa-led party, Zanu-PF.

In all the cases dealt with the Electoral Court, the petitioners lost.

In another development to the country’s jurisprudence, Chief Justice Malaba in October challenged lawyers to come up with robust criticism of court decisions, saying this could have a beneficial impact in the improvement of the country’s legal system.

He said this during the launch of the University of Zimbabwe Law Journal held at the university.

He said justice was not an insulated virtue and it must be subjected to scrutiny and candid comments from the lawyers and the ordinary men, and debunked the misconception that the courts were the centre of universal law.

In addition, Chief Justice Malaba pointed out that judges might be the authoritative interpreters of the law, particularly as a Constitutional court, but they did not claim monopoly of the understanding of the law.

The High Court closed the year with a judgment in the $25-millon claim involving Intratrek Zimbabwe and its managing director Wicknell Chivayo and Zimbabwe Power Company.

In the end, Chivayo scored a huge victory after High Court Judge Justice Tawanda Chitapi ruled in favour of the controversial businessman.

Justice Chitapi ruled that the multi-million dollar contract, which was signed between Chivayo’s Intratrek Zimbabwe and ZPC for the construction of the Gwanda solar project was valid and binding.

The judge also ruled that Chivayo was not responsible for the lack of progress in constructing the Gwanda Solar Project. However, the civil trial does not mean Chivayo is off the hook as the criminal charges against him still stand. He has since approached the High Court seeking to quash the charges against him.

Justice Joseph Msakwa is yet to deliver his judgment in his latest application for exception to the charges.

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