THE Constitutional Court will on Tuesday 11 May 2021 preside over the hearing and determination of an application filed by Gift Konjana, a losing opposition MDC party’s parliamentary candidate seeking to nullify the declaration by Zimbabwe Electoral Commission (ZEC) of ZANU PF party legislator Dexter Nduna as the winner of the Chegutu West constituency during the 2018 harmonised elections.
Konjana recently filed an application in the Constitutional Court seeking an order granting him leave to appeal against the decision of the Supreme Court which on 23 March 2021 upheld the Electoral Court’s decision saying it has no jurisdiction to hear an election petition appeal once the prescribed period of three months has expired and moved on to remove the matter from the Supreme Court roll.
In his appeal filed in the Supreme Court on 2 November 2018, Konjana had argued that Electoral Court Judge Justice Mary Zimba-Dube had erred and misdirected herself on 18 October 2018 when she rejected his election petition on the grounds that it was fatally defective. In the Electoral Court, Konjana had argued that ZEC officials had made a mistake by swapping his 121 votes in one of the wards in Chegutu West constituency with those of another candidate Simon Kache, who had gotten just one vote. The ZEC officials confirmed that if the mistakes were corrected, Konjana should have been declared the duly elected legislator as he had in fact garnered 10 949 votes compared to Nduna’s 10 932.
But Supreme Court Judges of Appeals Justice Bharat Patel and Justice Chinembiri Bhunu removed Konjana’s appeal from the court roll after ruling that he had failed to comply with the law which required him to have the election petition to be heard within the prescribed three months period.
Now Konjana, who is represented by Advocate Tererai Mafukidze instructed by Moses Nkomo of Zimbabwe Lawyers for Human Rights, has petitioned the Constitutional Court seeking an order granting him leave to appeal to the apex court against the decision of the Supreme Court.
In his application, Konjana argued that the Supreme Court decided constitutional matters and issues connected with decisions on constitutional matters and erred in its judgment by failing to hold that based on a constitutionally compliant interpretation, section 182(2) of the Electoral Act is directory and cannot constitutionally operate as a time bar to the determination of an appeal already properly pending before it.
Konjana also argued that the Supreme Court failed to hold that interpreting section 182(2) of the Electoral Act as mandatory results in unconstitutional limitation of the right of access to the courts and a fair hearing provided under section 69(2) and (3) of the Constitution, the right to the protection of the law under section 56(1) of the Constitution and the right to vote guaranteed under section 67(1)(a) and (b) of the Constitution and section 67(3)(a) and(b) of the Constitution.
He also submitted that the Supreme Court failed to hold that the ouster of the court’s jurisdiction in this case would be unconstitutional and therefore should prefer the constitutional interpretation that preserves the ordinary jurisdiction of the court.
Konjana wants the Constitutional Court to grant him leave to appeal and to be granted leave to file a notice of appeal within 10 days.
