By Blessed Mhlanga
Opposition MDC leader Nelson Chamisa will launch a renewed bid to oust President Emmerson Mnangagwa by seeking to have the Constitutional Court (ConCourt) review its own judgment based on “new evidence.”
Chamisa’s lawyer Thabani Mpofu said after studying academic works on the elections published by self-exiled former minister Jonathan Moyo, they were now making efforts to have the judgment on the 2018 presidential elections set aside.
The country’s top court ruled that Chamisa had failed to prove allegations of fraud during the presidential election, a vote which left the nation polarised and violence on the streets of the capital Harare.
Mpofu said the basis of approaching the ConCourt was because they now believe that the Zimbabwe Electoral Commission (Zec) presented to the courts false information and, therefore, their call for the judgment to be set aside.
“The general rule is that once a final judgment or order has been given, the judge who gave it or any other judge of parallel jurisdiction has no power to alter, rescind, vary or set it aside, except in the few instances recognised at common law or by the rules of the High Court.
“One of the exceptions recognised at common law is when the judgment or order has been obtained through fraudulent misrepresentation,” Mpofu said in a statement yesterday.
Mpofu, who was Chamisa’s lead lawyer in the challenge against Mnangagwa’s presidency, said the information carried in Moyo’s book Excelgate would have consequences on the resolution of the legitimacy question in Zimbabwe.
“We have now completed our sober and painstaking study of Excelgate. In embarking on the study, we allowed ourselves to be guided by the remarks of (Justice Luke) Malaba (as he was then) in City of Mutare v Mawoyo 1995 … doubles, Excelgate comes with certain consequences,” Mpofu said.
Midlands State University law lecturer and human rights lawyer, Valentine Mutatu, said it was possible for Chamisa to pursue a fresh application at the ConCourt, although chances of success might be very slim.
“It is very possible for them to make that application to the ConCourt, if there is new and compelling evidence, but without full facts and all the information, it would be difficult for me to make conclusive remarks,” Mutatu said.
He said he would, however, not advise that they take that route given that they will be making the appeal before the same judges who decided the matter in the first place, giving them very little or no room to manoeuvre.
“Without the full facts, I would not advise on that move, although their case at law is correct,” Mutatu said.
The law provides the ConCourt as the last court of appeal and does not provide any avenues for appealing against a ruling in the case of a presidential results appeal.
Another lawyer, Prayers Chitsa, said Mpofu was stepping on a legal minefield, but in essence, nothing could stop Chamisa from approaching the ConCourt.
“It’s a legal minefield in the sense that it has not been done before, but nothing can stop the application if they can prove that there is new evidence that was not available at the time the first application was made, or could have been reasonably made available at the time. I am sure the courts can look at that evidence and could change their initial judgment,” Chitsa said.
Chamisa confirmed that his lawyers were looking at the matter and already taking action, although he preferred not to comment on what had already been done.
Insiders said apart from mounting a fresh ConCourt appeal, Chamisa and his team, with the help of Mpofu, were coming up with a dossier which would be part of a fresh diplomatic onslaught in the region, continent and West to pressure Mnangagwa to the negotiating table.
“The new evidence is being compiled into a dossier which will be used in a two-way process, legal and political. We will be presenting this evidence and findings to Sadc, the AU [African Union] and the international community,” the source in Chamisa’s corner said. News Day