'I refuse this Con Court charade,' says Tsvangirai

MDC-T leader Morgan Tsvangirai yesterday described the Constitutional Court (ConCourt)'s insistence on hearing his presidential court challenge three days after he sought withdrawal of the same case as a "charade" and equated it to "being forced to play a football match with one leg tied".

"What a charade . . . The Constitutional Court has insisted on hearing and determining the presidential election challenge which I withdrew after realising the case was being sabotaged and the outcome was predetermined," Tsvangirai said in a statement soon after Chief Justice Godfrey Chidyausiku said Section 93 of the new Constitution had no provision for withdrawal of a presidential poll petition before a full hearing of the case.

"Well, they can make their determination, but it remains a charade in the absence of material required to expose the rigging. It is like being forced to play a football match with one leg tied. The referee is insisting I play, but I refuse to be party to such a farce," said Tsvangirai.

Deputy Chief Justice Luke Malaba, who also sat on the ConCourt bench, insisted that at law, the MDC-T leader was not allowed to withdraw the matter before a full hearing.

"The Electoral Act provides for withdrawal at any point, but this is not valid in the Constitutional Court. Before the Constitutional Court, there is no validity for withdrawal. Section 93 is clear. There has to be a subsisting petition," Justice Malaba said.

On August 9 this year, Tsvangirai filed a petition at the ConCourt challenging the July 31 election results where President Robert Mugabe was declared winner after he garnered 61% of the total votes cast while his party secured more than a two-thirds majority in Parliament.

In his court challenge, Tsvangirai alleged massive rigging and approached the Electoral Court requesting access to poll material to scour for evidence to support his claims. However, a week later the MDC-T leader withdrew his petition arguing that he had been denied access to the relevant material.

"I maintain that a fair hearing is impossible when one party is being denied access to crucial evidence. I have been denied key material such as electoral records. The Electoral Court sat on the case in which I was demanding that the Zimbabwe Electoral Commission (Zec) release this material and now I am being forced to proceed with the Constitutional Court case without the material which would have proven the massive July 31 vote rigging," said Tsvangirai.

"The Constitutional Court seems zealous to proceed with the case nevertheless. Despite our lawyers insisting that a fair hearing is impossible under the circumstances, the Constitutional Court is adamant that it will rule on the case tomorrow (today)."

Earlier in the day, Tsvangirai's lawyer Advocate Deepak Mehta refused to present his client's heads of argument, insisting that his mandate was to ensure withdrawal of the case.

"There are no submissions that I will make beyond the withdrawal. I am here to deal with the issue of the withdrawal. My instructions are specific, that is just to deal with the withdrawal," he said.

Chief Justice Chidyausiku also quizzed Mehta if he stood by views made by Tsvangirai questioning the integrity and reputation of the court when he filed his withdrawal affidavit last Friday.

Mehta, however, distanced himself from the statements insisting they were Tsvangirai's personal views.

But lawyers representing Mugabe, Zec and the Attorney-General's Office maintained that Tsvangirai was obliged at law to present arguments and allow the matter to reach its logical conclusion.

The Concourt is today expected to make a determination on Tsvangirai's application to withdraw his election petition and whether or not Mugabe was duly elected after the July 31 harmonised elections.