MDC-T leader Mr Morgan Tsvangirai yesterday withdrew his election petition from the Constitutional Court, hours before the court challenge was to be heard today. The last-minute withdrawal of the case, according to Mr Tsvangirai’s withdrawal affidavit, was done because he had not been furnished with the election material he requested at the Electoral Court.
He also cited Chief Justice Godfrey Chidyausiku’s presence at the National Heroes’ Acre where President Mugabe gave an address as a factor that may deprive him of the right to a fair hearing.
To that end, the Chief Justice has cancelled today’s hearing on preliminary issues raised in the petition.
However, despite the withdrawal, the court directed the parties to appear in court on Monday.
The notice of withdrawal filed yesterday evening at the Constitutional Court by Mr Tsvangirai’s lawyers Artherstone and Cook reads:
“Take notice that the applicant or petitioner hereby withdraws his presidential election petition in respect of the 2013 harmonised elections.
“Further take notice that applicant or petitioner tenders costs of the respondents.
“Further take notice that applicant or petitioner’s reasons for withdrawal are contained in an affidavit filed separately in this Honourable Court.”
Chief registrar of the Constitutional Court Mr Walter Chikwanha directed the parties, on behalf of the Chief Justice, to appear in court on Monday despite the withdrawal of the case.
“Following the withdrawal of the Presidential election petition in respect of the 2013 harmonised elections by the applicant, the Honourable Chief Justice has directed as follows:
“The sitting of the Constitutional Court which was scheduled for Saturday 17 August 2013 at 10am be and is hereby cancelled.
“Legal practitioners of all the parties are directed to appear before the Constitutional Court on Monday 19th of August 2013 at 10am.”
In his affidavit, Mr Tsvangirai indicated that he had not received the requested election material for use in the petition hence he could not meaningfully argue that case.
“As at the time of deposing to this affidavit (3:43pm) on Friday August 16 2013) the judgment in the applications (for election material) had not been delivered. This in my view, seriously handicaps my prosecution of the petition and it had rendered it impracticable for me to proceed with same.
“The fact that I still do not have the material means that I cannot meaningfully prosecute my petition,” he said.
Even if the urgent chamber applications were to be granted in his favour, Mr Tsvangirai says, that would be of no assistance because he would not have enough time to use the material to adequately prepare for the petition.
The presence of Chief Justice Chidyausiku at the National Heroes Acre where President Mugabe addressed the gathering on Monday, according to Mr Tsvangirai, was likely to deny him justice.
“I am also aware that the first respondent (President Mugabe) addressed crowds at the National Heroes’ Acre during the Heroes’ Day celebrations on August 12 2013.
“I am further aware that he made certain unsavoury comments in which he criticised my decision to approach this court.
“The fact that the Chief Justice was in attendance on the day and the fact that he is expected to preside over my petition does very little to inspire my confidence in the possibility of my enjoyment of the constitutional right to a fair hearing.
“In this regard, I make no imputation, gratuitous or otherwise, about the integrity of the honourable Chief Justice.
“My concern is with the conduct of the first respondent,” he said.
He also cited what he called adverse pre-trial publicity which has been championed by the State media” saying the media had taken positions “essentially rubbishing my efforts in pursuing my constitutional rights”.
Mr Tsvangirai concluded his statement saying the situation in Zimbabwe was far from being resolved considering that he was going to ‘use all democratic means to bring about the successful resolution of this case’.
Justice Chinembiri Bhunu on Wednesday reserved judgement in the case which Mr Tsvangirai filed at the Electoral Court seeking to compel Zec to release several election materials that he wanted to use in main case.
In his application Mr Tsvangirai had said Zec should provide him with the number of assisted voters, the number of people who voted with slips and the number of who were on the voters’ roll.
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