News / National
Chief Justice Chidyausiku to recuse self as Con Court sits
18 Aug 2013 at 06:16hrs | Views
Chief Justice Godfrey Chidyausiku is likely to recuse himself from hearing the case in which MDC-T leader Mr Tsvangirai was challenging the results of the July 31 presidential election, as the embattled opposition leader cited the presence of the Chief Justice at the National Heroes' Acre, where President Mugabe gave an address, as one of the reasons why he withdrew his election petition last Friday.
This comes amid reports that the withdrawal of the election petition by Mr Tsvangirai from the Constitutional Court does not bring the case to finality as the matter must be determined and concluded by the court which is set to sit tomorrow at 10am.
Highly placed legal experts who have been following developments at the Constitutional Court told The Sunday Mail that in view of the fact that Mr Tsvangirai had cited Chief Justice Chidyausiku among the reasons to withdraw the petition, Chief Justice Chidyausiku was likely to recuse himself.
Mr Tsvangirai said the presence of Chief Justice Chidyausiku at the National Heroes' Acre, where the President addressed the gathering last Monday, was likely to deny him justice in court.
"The citing of the Chief Justice among the reasons to withdraw the election petition is a very serious issue and I foresee Chief Justice Chidyausiku recusing himself. However, I think what the MDC-T leader has done is clear contempt of court because, as you know, the President was addressing an annual public gathering which many Chief Justices have over the years religiously attended. If you remember well, the former Chief Justice Gubbay used to attend events at the national shrine and I really don't see how the attendance of Chief Justice Chidyausiku was cited as a reason to withdraw the petition. It's a blatant and an unacceptable contempt of court in my considered view," said one legal expert from the University of Zimbabwe who preferred to remain anonymous for professional reasons.
It could not be established who will take over the matter if the Chief Justice recuses himself as the case is being heard at a time when judges are on vacation.
The expert said the allegations against the Chief Justice were serious and could not be left hanging.
"The allegations are very serious and can't be left hanging. That's why I think the Chief Justice will recuse himself from presiding over the case so that the matter is dealt with by the court. What is worrying, however, is that in his election petition, the MDC-T leader insinuated that the judges are Zanu-PF and now in withdrawing the petition, he makes serious allegations against the Chief Justice. I really don't know what this says about his lawyers who are supposed to be officers of the courts, but his notice of withdrawal is as mischievous as their application," said the expert.
Another top lawyer said Mr Tsvangirai's withdrawal of the election petition does not conclude the matter but simply shows that he did not have a strong case in the first place.
"This is not an ordinary case or a civil matter. Section 93 of the Constitution under which the petition was filled does not provide for the withdrawal. It provides for a determination. What this means is that once a petition has been filled, the matter must be determined and this determination comes in the form of an order of the court. The court is obliged to make an order and that order will take into account that the applicant has withdrawn the petition.
"All Mr Tsvangirai did was to withdraw his allegations. Another thing is that the notice to withdraw the petition has brought fresh issues that also have to be dealt with, including the citing of the Chief Justice as one of the reasons to withdraw the petition. This is a serious issue that has to be dealt with and because of that I see Chief Justice Chidyausiku recusing himself," said the lawyer.
The lawyer described as frivolous reasons given by Mr Tsvangirai that he withdrew the petition because he had not been furnished with election material he had requested at the Electoral Court.
"The MDC-T leader had seven days to make up his mind and he wasted time going to the Electoral Court to fish around for some information. He should have gone to the Constitutional Court and he had seven days to make up his mind, but then you can't make up your mind on information that you don't have.
"Mr Tsvangirai should have got the information that he wanted from his polling agents and election agents because it is their duty to record what happens at the polling station. What is in the boxes that he wanted opened is what happened at the polling station where he had these polling and elections agents. If there were contentious issues, these agents should have raised alarm in time. You can't say open the boxes as if you were not there during voting," said the lawyer.
The lawyer reiterated the point that was also raised by the legal expert, saying the withdrawal of the petition does not conclude the case.
"If the withdrawal of the petition concluded the case, that would have meant that the President was supposed to be sworn in between Saturday and Sunday because that's within the 48 hours as prescribed by the law. But the case is concluded by a determination by the court and after this determination that's when you start counting the 48 hours.
"So as things stand, Mr Tsvangirai's lawyers are supposed to appear before the court on Monday. If they don't they will be in contempt of court," said the lawyer.
These developments come amid revelations that the Mr Tsvangirai withdrew his election petition after realising that the lawyers representing the President had filled strong heads of argument that left the MDC-T exposed.
It has emerged that President Mugabe's lawyers on Friday filed a strong set of arguments to counter Mr Tsvangirai's election court challenge in a development that is believed to have led to the eleventh hour aboutturn by the beleaguered outgoing Prime Minister.
In an interview yesterday, President's Mugabe's lawyer, Mr Terrance Hussein, said the heads of argument that were filed at the Constitutional Court on Friday had dismissed all the 15 main allegations raised by Mr Tsvangirai.
"I strongly believe that the withdrawal was made after Mr Tsvangirai's lawyers saw our heads of argument. I do not think it is a coincidence that the withdrawal was made just soon after we had presented the heads of argument to the court," said Mr Hussein.
Mr Hussein said out of the 15 allegations stated by Mr Tsvangirai, none of them had any legal weight but were based on generalisation.
The 15 allegations stated by Mr Tsvangirai were: gross State media bias, bribery of the electorate, lack of transparency regarding ballot papers, turning away of voters at polling stations, high number of assisted voters, intimidation and violence, irregularities over postal voters, abuse of special voting system, duplication of names on voters' roll, refusing to avail voters' roll to candidates, disenfranchisement through restrictive voter registration, breach of Constitution and abusing of voters.
In the heads of argument, Mr Hussein said it was imprudent that Mr Tsvangirai had declared himself winner of the election during a rally before the polls were held, only to discredit the electoral process after polling. He said it was revealing that Mr Tsvangirai only started to raise complaint after the counting of votes.
"So satisfied was the Applicant with this process that he boisterously declared that he would announce the results of the election well before the Second Respondent did, as he expected to be victorious. None of the complaints which mysteriously surfaced in this application were an issue prior to the counting of votes.
"The counting of votes put a damper on Applicant's exuberance on the election. When confronted with the cold reality of defeat, he resorted to name-calling and denigrating the entire process, a stance which was gullibly echoed by his usual supporters in Anglo Saxon North America, Western Europe and Australia."
Mr Hussein affirmed in the heads of argument that Mr Tsvangirai's case was vague. "Upon reading the purported application before this court, one is struck by how vague it is. The application makes wide-ranging allegations of irregularities but fails to provide basic details as to names of persons affected, their wards or constituencies and specific numbers involved. There is the repeated claim that information would be provided at the hearing. No supporting affidavits from those affected by the electoral irregularities are attached nor any official documentation from the Second Respondent. It is submitted that such lack of particularity on its own should warrant the dismissal of this application."
He also stated that Mr Tsvangirai's petition was filed "to maliciously prevent the conclusion of the electoral process and the expected swearing in of the First Respondent. The inescapable conclusion is that this petition is a final act of campaigning on the part of the Applicant." The heads of argument also criticised Mr Tsvangirai's lawyers for raising issues that had been previously addressed during other electoral court challenges that preceded the case. Mr Hussien lambasted Mr Tsvangirai's argument that some voters had been intimidated and had voted in fear.
"How Applicant is able to measure the amount of 'fear' that existed and how it affected the result eludes reason. Typically, he is unable to name any person who laboured under this 'fear'. No police reports are attached. This allegation is clearly contrived and cannot be sustained."
He said it was laughable for Mr Tsvangirai to claim that he had lost the election because he had failed to access the electronic voters' roll on time.
"It is instructive to note that no other party or individual had access to the voters' roll in electronic form. The Applicant would want this court to believe that this 'failure of access' accounted for his monumental defeat at the polls. He cannot and does not point to anything that could have arisen or did arise as a result of his failure to access an electronic copy of the voters' roll."
Other issues cited in the heads of argument include the regurgitation of false allegations of assisted voters made by British Ambassador Deborah Bronnert and the role of the Zimbabwe Electoral Support Network as an objective observer mission, amongst other issues. sunday mail
This comes amid reports that the withdrawal of the election petition by Mr Tsvangirai from the Constitutional Court does not bring the case to finality as the matter must be determined and concluded by the court which is set to sit tomorrow at 10am.
Highly placed legal experts who have been following developments at the Constitutional Court told The Sunday Mail that in view of the fact that Mr Tsvangirai had cited Chief Justice Chidyausiku among the reasons to withdraw the petition, Chief Justice Chidyausiku was likely to recuse himself.
Mr Tsvangirai said the presence of Chief Justice Chidyausiku at the National Heroes' Acre, where the President addressed the gathering last Monday, was likely to deny him justice in court.
"The citing of the Chief Justice among the reasons to withdraw the election petition is a very serious issue and I foresee Chief Justice Chidyausiku recusing himself. However, I think what the MDC-T leader has done is clear contempt of court because, as you know, the President was addressing an annual public gathering which many Chief Justices have over the years religiously attended. If you remember well, the former Chief Justice Gubbay used to attend events at the national shrine and I really don't see how the attendance of Chief Justice Chidyausiku was cited as a reason to withdraw the petition. It's a blatant and an unacceptable contempt of court in my considered view," said one legal expert from the University of Zimbabwe who preferred to remain anonymous for professional reasons.
It could not be established who will take over the matter if the Chief Justice recuses himself as the case is being heard at a time when judges are on vacation.
The expert said the allegations against the Chief Justice were serious and could not be left hanging.
"The allegations are very serious and can't be left hanging. That's why I think the Chief Justice will recuse himself from presiding over the case so that the matter is dealt with by the court. What is worrying, however, is that in his election petition, the MDC-T leader insinuated that the judges are Zanu-PF and now in withdrawing the petition, he makes serious allegations against the Chief Justice. I really don't know what this says about his lawyers who are supposed to be officers of the courts, but his notice of withdrawal is as mischievous as their application," said the expert.
Another top lawyer said Mr Tsvangirai's withdrawal of the election petition does not conclude the matter but simply shows that he did not have a strong case in the first place.
"This is not an ordinary case or a civil matter. Section 93 of the Constitution under which the petition was filled does not provide for the withdrawal. It provides for a determination. What this means is that once a petition has been filled, the matter must be determined and this determination comes in the form of an order of the court. The court is obliged to make an order and that order will take into account that the applicant has withdrawn the petition.
"All Mr Tsvangirai did was to withdraw his allegations. Another thing is that the notice to withdraw the petition has brought fresh issues that also have to be dealt with, including the citing of the Chief Justice as one of the reasons to withdraw the petition. This is a serious issue that has to be dealt with and because of that I see Chief Justice Chidyausiku recusing himself," said the lawyer.
The lawyer described as frivolous reasons given by Mr Tsvangirai that he withdrew the petition because he had not been furnished with election material he had requested at the Electoral Court.
"The MDC-T leader had seven days to make up his mind and he wasted time going to the Electoral Court to fish around for some information. He should have gone to the Constitutional Court and he had seven days to make up his mind, but then you can't make up your mind on information that you don't have.
"Mr Tsvangirai should have got the information that he wanted from his polling agents and election agents because it is their duty to record what happens at the polling station. What is in the boxes that he wanted opened is what happened at the polling station where he had these polling and elections agents. If there were contentious issues, these agents should have raised alarm in time. You can't say open the boxes as if you were not there during voting," said the lawyer.
The lawyer reiterated the point that was also raised by the legal expert, saying the withdrawal of the petition does not conclude the case.
"If the withdrawal of the petition concluded the case, that would have meant that the President was supposed to be sworn in between Saturday and Sunday because that's within the 48 hours as prescribed by the law. But the case is concluded by a determination by the court and after this determination that's when you start counting the 48 hours.
These developments come amid revelations that the Mr Tsvangirai withdrew his election petition after realising that the lawyers representing the President had filled strong heads of argument that left the MDC-T exposed.
It has emerged that President Mugabe's lawyers on Friday filed a strong set of arguments to counter Mr Tsvangirai's election court challenge in a development that is believed to have led to the eleventh hour aboutturn by the beleaguered outgoing Prime Minister.
In an interview yesterday, President's Mugabe's lawyer, Mr Terrance Hussein, said the heads of argument that were filed at the Constitutional Court on Friday had dismissed all the 15 main allegations raised by Mr Tsvangirai.
"I strongly believe that the withdrawal was made after Mr Tsvangirai's lawyers saw our heads of argument. I do not think it is a coincidence that the withdrawal was made just soon after we had presented the heads of argument to the court," said Mr Hussein.
Mr Hussein said out of the 15 allegations stated by Mr Tsvangirai, none of them had any legal weight but were based on generalisation.
The 15 allegations stated by Mr Tsvangirai were: gross State media bias, bribery of the electorate, lack of transparency regarding ballot papers, turning away of voters at polling stations, high number of assisted voters, intimidation and violence, irregularities over postal voters, abuse of special voting system, duplication of names on voters' roll, refusing to avail voters' roll to candidates, disenfranchisement through restrictive voter registration, breach of Constitution and abusing of voters.
In the heads of argument, Mr Hussein said it was imprudent that Mr Tsvangirai had declared himself winner of the election during a rally before the polls were held, only to discredit the electoral process after polling. He said it was revealing that Mr Tsvangirai only started to raise complaint after the counting of votes.
"So satisfied was the Applicant with this process that he boisterously declared that he would announce the results of the election well before the Second Respondent did, as he expected to be victorious. None of the complaints which mysteriously surfaced in this application were an issue prior to the counting of votes.
"The counting of votes put a damper on Applicant's exuberance on the election. When confronted with the cold reality of defeat, he resorted to name-calling and denigrating the entire process, a stance which was gullibly echoed by his usual supporters in Anglo Saxon North America, Western Europe and Australia."
Mr Hussein affirmed in the heads of argument that Mr Tsvangirai's case was vague. "Upon reading the purported application before this court, one is struck by how vague it is. The application makes wide-ranging allegations of irregularities but fails to provide basic details as to names of persons affected, their wards or constituencies and specific numbers involved. There is the repeated claim that information would be provided at the hearing. No supporting affidavits from those affected by the electoral irregularities are attached nor any official documentation from the Second Respondent. It is submitted that such lack of particularity on its own should warrant the dismissal of this application."
He also stated that Mr Tsvangirai's petition was filed "to maliciously prevent the conclusion of the electoral process and the expected swearing in of the First Respondent. The inescapable conclusion is that this petition is a final act of campaigning on the part of the Applicant." The heads of argument also criticised Mr Tsvangirai's lawyers for raising issues that had been previously addressed during other electoral court challenges that preceded the case. Mr Hussien lambasted Mr Tsvangirai's argument that some voters had been intimidated and had voted in fear.
"How Applicant is able to measure the amount of 'fear' that existed and how it affected the result eludes reason. Typically, he is unable to name any person who laboured under this 'fear'. No police reports are attached. This allegation is clearly contrived and cannot be sustained."
He said it was laughable for Mr Tsvangirai to claim that he had lost the election because he had failed to access the electronic voters' roll on time.
"It is instructive to note that no other party or individual had access to the voters' roll in electronic form. The Applicant would want this court to believe that this 'failure of access' accounted for his monumental defeat at the polls. He cannot and does not point to anything that could have arisen or did arise as a result of his failure to access an electronic copy of the voters' roll."
Other issues cited in the heads of argument include the regurgitation of false allegations of assisted voters made by British Ambassador Deborah Bronnert and the role of the Zimbabwe Electoral Support Network as an objective observer mission, amongst other issues. sunday mail
Source - Sundaymail
