Whoever coined the phrase, ‘It is not yet over until it is over’, peharps had main opposition MDC Alliance leader Nelson Chamisa in the mind.
The youthful opposition figure is just not giving up on his political archival and 77-year-old Zimbabwean President Emmerson Dambudzo Mnangagwa.
Despite a 2018 Constitutional Court ruling which literally certified Mnangagwa’s controversial triumph in a disputed electoral contest, Chamisa is on his way back to the same courts that ultimately shattered his presidential aspirations.

The trained lawyer-cum-man-of-the-cloth believes the country’s electoral governing body, ZEC, presented false information to the courts and his lawyers are now making efforts to ensure that judgement on the 2018 presidential election be set aside.

According to Thabani Mpofu, who was Chamisa’s lead lawyer in the 2018 court challenge against Mnangagwa’s legitimacy, information culled from exiled former Zanu PF minister Jonathan Moyo’s academic book, Excelgate, depicts ‘new evidence’ on how the 2018 election results were doctored in Mnangagwa’s favour.

Thabani Mpofu

The basis of approaching the Concourt, Mpofu said, is mainly premised on ZEC’s ‘presentation of false information to the courts’, hence the need for the 2018 ConCourt judgement 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,” said Mpofu in a statement on Monday.
He said the information contained in Moyo’s Excelgate would have consequences on the resolution of the legitimacy question in the markedly polarised southern African nation.
“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 wrote.
But, while acknowledging that it was possible for Chamisa to pursue a fresh ConCourt challenge after the monumental collapse of the first one in 2018, various opinion leaders argue that the chances that he would succeed were slim.

Human Rights lawyer Valentine Mutatu

“It is very possible for them (MDC Alliance) 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,” said human rights lawyer and Midlands State University (MSU) law lecturer, Valentine Mutatu.
Mutatu hinted that, although their case is ‘correct’ at law, it was not advisable for the opposition to embark on the envisaged move. He said it was highly unlikely that Chamisa’s legal team would stage a successful challenge given that they were going to make their appeal to the same judges who decided the matter two years ago.
“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,” another lawyer, Prayers Chitsa argued.
Chamisa told the privately-owned Newsday that his lawyers were ‘looking at the matter and already taking action’ but was understandably stingy with details pertaining to what had already been done in connection with the envisaged fresh court challenge. Sources privy to the MDC leader allege that ‘new evidence is being compiled into a dossier which will later be presented to Sadc, the African Union (AU) and the international community.
At law, the ConCourt is the last court of appeal and does not provide any avenues for appealing against a ruling in the case of a presidential results appeal.

Private Media/STAFF WRITER