THE Bulawayo High Court has dismissed a petition filed by MDC-T Nkayi North candidate, Chief Ndlovu, who was challenging minister Sithembiso Nyoni’s victory in the August 2023 elections.
In his application filed on September 8, Ndlovu cited Nyoni, the Zimbabwe Electoral Commission (Zec) and aspiring candidates from other parties as respondents.
Ndlovu, represented by Lovemore Madhuku, said Zec failed to conduct the elections according to the Electoral Act in respect to assisted voters.
Bulawayo High Court judge Justice Christopher Dube-Banda, however, dismissed the application saying it was filed out of time.
Dube said an election petition must comply with the mandatory provisions of the Electoral Act on applications, appeals and petitions.
“The first issue to be put off the way is the joinder of Zec and its chairperson. In the notice of opposition, the fourth and fifth respondents objected to their joinder as respondents in this petition,” Dube-Banda said.
“It was contended that the electoral law excludes their joinder as respondents in an election petition governed by the provisions of Part XXIII of the Electoral Act [Chapter 2:13).”
Justice Dube-Banda said fourth and fifth respondents sought to be removed as respondents in the petition.
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“At the commencement of the hearing in respect of this preliminary objection Ndlovu, counsel for respondent contended the petition was presented outside the timeline ...,” the judge said.
“The basis of contention was that the election was held on August 23 and the result for Nkayi North was announced on August 24.
“In terms of section 168(2) of the Act an election petition shall be presented within 14 days after the end of the election period related. As this petition was presented on September 11, it fell outside the timeline allowed at law.”
Dube-Banda said Ndlovu conceded that the petition was presented on September 8 beyond the stipulated time frame.
“It is accordingly ordered that preliminary points on non-compliance first with Electoral (Applications, Appeals and Petitions) Rules, 1995 in that the form used is irregular and second the failure to give security within the timeline provided for in section 168(3) of the Electoral Act are upheld,” Justice Dube-Banda ruled.
“The election petition is fatally defective, invalid and be and is hereby dismissed with costs. In terms of section 171(3)(a) of the Electoral Act [Chapter 2:13] in the general election held on August 23 Nyoni was duly elected as MP for Nkayi North. It is so ordered.”
Yesterday, Ndlovu said the judgment did not resolve the question of monumental fraud and the intimidation of voters on election day.
“We have clear and damaging evidence against Nyoni and that has still not been tested in a court of law. Relying on technical issues was her only way out of this. She may have been declared a winner but has no legitimacy,” Ndlovu told Southern Eye.
“I accept the court ruling regardless of the fact that I do not agree with the court’s findings.”
In his affidavit, Ndlovu said it was alarming that over 1 500 voters were assisted to vote.
Ndlovu accused Nyoni of intimidating his supporters as well as defacing his campaign posters.
