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Tsvangirai loses election petition
Posted: Saturday, June 12, 2004

By Fidelis Munyoro,

THE High Court yesterday dismissed an application by MDC leader Mr Morgan Tsvangirai for the nullification of the 2002 presidential poll results.

Mr Tsvangirai had, in November last year, petitioned the High Court to nullify the election after the hearing of legal arguments without getting to factual arguments of the case.

Justice Ben Hlatshwayo dismissed the application with costs because none of the arguments brought to court by Mr Tsvangirai warranted the invalidation of the election results.

"I hereby . . . dismiss with costs the preliminary points raised by the petitioner (Tsvangirai) in that none of them on its own nor all of them collectively suffice at this stage to invalidate the election . . . dismiss with costs the relief sought by the petitioner as to the constitutional validity of section 158 of the Electoral Act (Chapter 2:01) and the Electoral Act (Modification) Notice 2002, Statutory Instrument 41D of 2002 and the declaration sought that all orders made and directions given and acts done in terms of the Electoral Act (Modification) Notice 2002, SI41D are void," ruled Justice Hlatshwayo.

He also threw out with costs the objection by the Electoral Supervisory Commission that it was improperly cited as a respondent in the case.

The ruling means a date to hear the main election petition should be set within 30 days.

Now that the legal and technical objections by Mr Tsvangirai to the conduct of the election have been dis-missed, the opposition leader would be confined to leading evidence as to the extent of the alleged violence that purportedly prevailed during the poll.

President Mugabe and the ESC were cited as respondents in the case.

Mr Tsvangirai, who was represented by a team of lawyers including Advocate Jeremy Gauntlet of South Africa - Advocate Adrian de Bourbon (now based in South Africa) and Advocate Happias Zhou with Mr Bryant Elliot as attorney - had argued that the ESC was improperly constituted.

He blamed the ESC for scuttling the electoral process and challenged the constitutionality of certain sections of the Electoral Act.

Based on that assertion, Mr Tsvangirai wanted the court to invalidate the election after hearing the legal arguments at the initial stage of the proceedings.

At the hearing of the case last year, Mr Terrence Hussein of Hussein and Ranchhod, who represented President Mugabe, described the MDC petition as the weakest he had ever seen.

He said the court would make a blunder if it decided to nullify the election.

Asked about his chances of winning the case following the preliminary ruling, Mr Hussein said he could not comment as the matter was sub judice.

After noting that the issue was still under judicial consideration and, therefore, prohibited from public discussion outside the courts, he was still confident of the final outcome, saying: "I believe that my client's presidency is secure."

Mr Tsvangirai's lawyer, Mr Elliot, said he was not in a position to comment at this stage and referred all questions to the MDC leader's spokesman, Mr William Bango, who could not be reached for comment.

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