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Zim High Court to deliver judgement on poll petition - Monday
Bua News (SA)
April 10, 2008

http://allafrica.com/stories/printable/200804100297.html

The Zimbabwe High Court has set Monday to deliver its ruling in a case in which the opposition MDC faction of presidential candidate Morgan Tsvangirai is seeking a court order to compel the ZEC to release results of the presidential poll.

After two days of hearing actual evidence of the case from both the Zimbabwe Electoral Commission (ZEC) and Movement for Democratic Change (MDC) lawyers, Justice Tendai Uchena said Wednesday that while he appreciated the urgency of the matter, he would work to come up with a verdict in the next five days.

"I have heard both parties since Saturday and I need time to go over the statutes that have been referred to.

"Conscious of the urgency of the matter, I am of the view that if I exert myself, I should be ready with the judgment on Monday. Therefore judgment is reserved for Monday at 2:30pm," said Mr Uchena.

In his submissions, ZEC lawyer George Chikumbirike asked the court to dismiss the MDC application with costs on the grounds that it was untenable.

"So many viruses are in the application making it incurable," he said.

He said the MDC had made many mistakes in the application process, among them failure to identify proper respondents and filing on the wrong affidavit.

The MDC, Mr Chikumbirike argued, ought to have requested for information from the ZEC before rushing to file a court application.

This route should only have been followed after failing, indisputably, to obtain the information from the ZEC.

While acknowledging the delay, Mr Chikumbirike said the ZEC was following the law and would, after following due processes, announce the results.

"It would be dangerous to give an order that may not be complied with in view of outside exigencies that they are not able to control," he added.

He did not, however, elaborate on the "outside exigencies" and was also not in a position to indicate progress when pressed by the judge to do so.

".....it is privileged information to which they [ZEC] are entitled to relate and release when they are ready," he said.

On whether or not a time frame was given in which results had to be released, Mr Chikumbirike said Sections 58 and 38 of the Constitution and Electoral Act respectively did not give a time frame in which the results should be announced.

He said results would only be announced after following laid down procedures.

"It is important that ZEC's integrity be preserved and that it remains with the independence as enshrined in the Constitution," he said.

"It is important that the court leaves them to deal with issues at their discretion as provided for in the law. To try and rush them will in the long run create problems with respect to running of the institution."

He added that pronouncing an order was, however, at the court's discretion.

Once all processes had been followed, he said, the Chief Elections Officer would announce the results.

Mr Chikumbirike said if parties raised complaints, it was within the ZEC's discretion to recount the votes.

In his final counter arguments, MDC lawyer Alec Muchadehama implored the judge to grant the court order, saying it was his clients' legal right to know the outcome of the presidential elections.

He said the prolonged delay in announcing the outcome was unreasonable and in direct conflict with the Electoral Act which required that the election processes, up to the announcement of results, be treated with urgency.

"What was the point in holding elections in one day when it takes forever to have the results announced?" he queried.

"Eleven days later, there is no indication as to when the results would be announced. The spirit of an election is that everything has to be done with urgency," he said.

Mr Muchadehama said if ZEC had nothing to hide, it should be communicating all the information relating to the poll, including existence of complaints registered by other parties.

"Why should information be privileged if the process has to be fair and transparent and in accordance with the law?" he asked.

He dismissed arguments by Mr Chikumbirike that the order being sought was invalid.

Zimbabweans went to the polls on March 29 to elect a new president, members of parliament and local government representatives.

Results for all the elections have been made public except for that for the presidency in which the incumbent from the ruling Zanu-PF party, Robert Mugabe, contested against Mr Tsvangirai and two independents.

Meanwhile, the ZEC has agreed to conduct recounting of five House of Assembly constituencies after Zanu-PF raised irregularities about a number of parliamentary and presidential results, an official said on Wednesday.

Zanu-PF information and publicity committee chairman Patrick Chinamasa told a press conference that the recounting was expected to be done sometime this week.

He said Zanu-PF raised a total of 21 queries with ZEC but only five had been set for recount, at least for now.

"Seven were rejected because they were submitted after the 48 hours had elapsed," Mr Chinamasa said, adding that Zanu-PF would now proceed by way of petitions to ensure vote recounting was conducted in affected constituencies.

"The ZEC will consider only five of our queries and they have since indicated to us that a recount in the five selected constituencies will be done this week."

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