The Zimbabwe Electoral Commission (Zec) has said that MDC Alliance leader Mr Nelson Chamisa’s petition challenging the July 30 presidential election result should be struck off the roll as it was filed later than the prescribed seven-day period.
Zec, its chairperson Justice Priscilla Chigumba, and the Acting Chief Elections Officer Mr Utloile Silaigwana who are cited as the 23rd, 24th and 25th respondents in Mr Chamisa’s challenge say he failed to file a complete and valid application with the Registrar of the Constitutional Court.
In their opposing affidavit to Mr Chamisa’s petition filed at the Constitutional Court last Friday claiming that the poll was rigged, the three respondents through their lawyer, Tawanda Kanengoni of Nyika, Kanengoni and Associates said the time to challenge the election result had expired.
“In terms of s93(1) of the Constitution, a challenge to the validity of an election to the office of President is instituted by way of a petition or application lodged with the Constitutional Court within seven days after the date of the declaration of the results of the election. Being a period prescribed by statute, the seven days provided by s93(1) of the Constitution are reckoned with the inclusion of Saturdays, Sundays and public holidays. The time for lodging a petition in terms of s93(1) thus expired on the 10th of August 2018,” read the opposing affidavit.
Justice Chigumba argued that service was defective in that the applicant decided to serve the papers to Zec on August 10 without the services of the Sheriff of the Court and that as respondents 24 and 25 they were not served since they were cited individually in their official capacities.
“A single copy was received at the Electoral Commission’s offices at Mahachi Quantum Building. No copy of the application was served on me or on the 25th respondent on the 10th of August 2018 or subsequently. Suffice to state that the purported service on the 10th of August 2018 was defective,” read the application.
The three respondents said in the papers served on August 10, there was no court application but a “bundle of bound papers titled Court Application.”
“On the following day, the 11th of August 2018, the Sheriff of Zimbabwe served three copies of the applicant’s application at Mahachi Quantum Building, which copies now had as part of the bundle of documents, a court application. This was on the eighth day after the declaration of the result in the election sought to be challenged by the applicant, contrary to the peremptory dictates of the rules of court viz. The filing of such an application and consequently, in violation of the seven-day period for lodging a petition against the election of a person to the office of the President of the Republic as prescribed in s93 (1) of the Constitution of Zimbabwe,” read the affidavit.
On the merits of the case, the respondents argued that there is not much to point out to as evidence that the applicant wishes to place reliance upon as the separate bundle with photographs and the videos he refers to are absent.
Zec, Justice Chigumba and Mr Silaigwana refuted allegations that the Commission was not involved in the selection and appointment of polling agents by candidates.
Turning to allegations that she wore a scarf linked to a party candidate, Justice Chigumba said by February 5 it had no link, connection or association with any presidential election campaign.
“While it is true that I tried on a scarf designed by Miss Celia Rukato, a young Zimbabwean designer whose vision is to build national consciousness and that a photograph was taken with my consent to promote the designer it is baseless and malicious to assert that the wearing of the scarf is therefore a sign of bias. I could not have known or anticipated at that date that 1st respondent would go on to make that scarf his trademark.
This allegation is at one with the misogynistic attacks on my person and professional integrity by the applicant and his supporters,” read the court papers.
They also denied ballot swapping and stuffing using the sample ballots saying the thousands of polling agents and scores of election observers across the country would have picked that up during the count.
Turning to the V11 forms the respondents said Mr Chamisa makes unsubstantiated allegations without evidence.
“The applicant does not in this context present his V11 forms and contend that the V11 forms that the Electoral Commission has are different from what he has. If he did not have polling agents at the unidentified polling stations how does he conclude that the alleged failure to affix a return in terms of the law occurred or resulted in the alleged rigging at those unidentified polling stations?” they argued.
Zec, Justice Chigumba and Mr Silaigwana urged the court to dismiss the application.
“Wherefore the 23rd, 24th and25th respondents pray for the dismissal of the application with costs,” read the papers.
The ConCourt has set the hearing of the matter next Wednesday at 10AM.