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Tsvangirai in court gaffe

By Innocent Ruwende and Daniel Nemukuyu
THE founding affidavit of the petition filed by MDC-T leader Mr Morgan Tsvangirai seeking to nullify results of the harmonised elections is a clear abuse of court process as it was not made under oath presumably to protect him from the prosecutable crime of perjury, President Mugabe has said.

The President yesterday filed his opposing papers to Mr Tsvangirai's application at the Constitutional Court.

Through his lawyer, Mr Terence Hussein of Hussein, Ranchod and Company, the President argues that the MDC-T leader willfully filed an unsworn affidavit based on defamatory and unsubstantiated allegations designed to impugn the integrity and professionalism of innocent individuals and institutions.

"It appears the applicant filed an unsworn statement after he must have been advised by his lawyers not to swear to falsehoods (given to him by the British ambassador in Harare (Ms Deborah Bronnert)) out of the fear that he would risk committing the prosecutable crime of perjury.''

As such, the President said, Mr Tsvangirai's petition had no legal basis whatsoever and should be disregarded and dismissed in its entirety with costs. In terms of the law, an affidavit is evidence and all evidence must be sworn to. An applicant must take an oath before a notary public or commissioner of oaths, who must also countersign the documents.

Although Mr Tsvangirai claimed that his submissions were made under oath, the President argues that the MDC-T leader had failed to file a sworn affidavit as required by law. "His entire found ing affidavit is a mere statement certified by Duduzile Legal Practitioners as 'a true copy of the original' but there is no original copy filed with this Honourable Court which is sworn to by the applicant.

"It is trite to mention that there is a difference of night and day between a sworn affidavit and a statement merely certified as a true copy of the original without being sworn to by the author of the statement. "It appears that the applicant filed an unsworn statement after he must have been advised by his lawyers not to swear to falsehoods (given to him by the British ambassador in Harare) out of the fear that he would risk committing the prosecutable crime of perjury," submitted the President.

The entire petition, President Mugabe argues, contains self indulgent generalisations, sweeping statements and outlandish exaggerations all of which are not made under oath. "I would also like to place it on record that at the time the applicant filed his petition, he in fact, had no evidence whatsoever save for an unhelpful affidavit from one Tongai Matutu who was defeated in the election and a pamphlet of scandalous and unsubstantiated assertions," President Mugabe said.

Section 59 of the Electoral Act permits persons who are illiterate, physically impaired or elderly to be assisted to vote upon request. Ms Bronnert, however, appeared on SkyNews on August 4 claiming that of the 17 000 people who allegedly voted in an unnamed constituency, 10 000 had been assisted to vote, a claim that is repeated in toto in Mr Tsvangirai's application.

''The applicant makes the wild claim that 10 000 people were assisted to vote in one unnamed constituency where allegedly some 17 000 votes were cast, but he does not give us the names of these assisted voters that were allegedly assisted, nor does he provide a single affidavit from a person who alleges to have been assisted against his or her will.''

Mr Tsvangirai, the President said, had therefore brought before the court an unsworn founding affidavit to parrot a false British claim without a factual basis. The President says he and his party Zanu-PF won the elections because of their sound manifesto and people-oriented policies. "While we had concrete programmes for the masses, and provided them an opportunity to have an identity and feel proud to be a sovereign people, the MDC tried to sell the opposite.

"While I am reliably advised that this court does not take into account the views of election observers or pollsters, it is instructive to note that, way before the elections, traditionally hostile regimechange- seeking organisations such Freedom House had projected Zanu-PF and its Presidential candidate, well ahead of the applicant (Mr Tsvangirai) and his now embattled party. The applicant himself concedes this point in his unsworn affidavit," President Mugabe said.

He further points out that the elections were conducted by an independent constitutional body whose composition was a result of the Global Political Agreement between Zanu-PF and the two MDC formations.

"However, if I may be allowed to venture my own opinion as a candidate, it (ZEC) conducted itself in a satisfactory and indeed commendable manner." The President said Mr Tsvangirai failed to give particulars of the postal ballots he refers to in his application and that he did not provide any names of people whom he claimed intimidated voters. "There were no police reports to that effect," President Mugabe said adding that Mr Tsvangirai relied on ZESN when he claimed that 750 000 voters were turned away as there were no names or affidavits of those who were improperly turned away.

He also argues that Mr Tsvangirai failed to give evidence to buttress his claim that 500 people were found in possession of fake voter registration slips as he does not give evidence of who they are and whether they voted.

The President also denies that he or the First Lady Amai Grace Mugabe bribed the electorate. "I am surprised that charitable gestures by the First Lady in keeping with her role, are made an issue of. It is customary for a First Lady to give certain assistance wherever she goes to help the disadvantaged members of our society."

President Mugabe said he was aware that Mr Tsvangirai and his wife made similar gestures during the campaign. Mr Tsvangirai donated seven drip irrigation kits to six villagers and one to Mbembeswana 2 Primary School during a rally at Nkosikazi village in Bubi while his wife Elizabeth Macheka donated goods among them lotions for Albinos and wheelchairs as well as sanitary pads at Simbala Clinic and Binga Hospital during Mr Tsvangirai's campaign tour of Matabeleland North province.

Mr Tsvangirai's petition is set to be heard by the Constitutional Court on Saturday.





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