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Battleground shifts to ConCourt

AS Zimbabweans anxiously await the outcome of the presidential election petition by MDC Alliance leader Nelson Chamisa at the Constitutional Court (ConCourt), which is set for next Wednesday, the two main respondents, President-elect Emmerson Mnangagwa and the Zimbabwe Electoral Commission, this week filed their opposing papers, dismissing, as unsubstantiated, claims by the opposition leader that the poll was rigged.

Tinashe Kairiza/Nyasha Chingono/Charles Laiton

In his petition challenging the outcome of last month’s presidential election, whose aftermath was marred by violent protests that rocked Harare, leaving at least six people dead and a trail of destruction, Chamisa said the entire process should be declared invalid, set aside, or he be declared winner.

Mnangagwa, who rose to power last year through a millitary coup that toppled long time ruler Robert Mugabe, was declared winner of the poll by Zec, edging his closest rival Chamisa by a narrow margin. Mnangagwa polled 50,8%, while Chamisa garnered 44,3% of the vote.

The main parties cited in the petition this week submitted their opposing submissions, setting the stage for an epic legal battle. Below are summaries of their submissions:
Highlights of Chamisa’s petition

In his ConCourt challenge, Chamisa argues that he garnered 2 674 032, while his rival Mnangagwa got 2 008 639 of the vote.

The MDC Alliance petition challenges Zec’s failure to follow due process relating to collation and announcement of results.

Chamisa’s legal team led by Advocate Thabani Mpofu says the actual results announced by Zec are afflicted by irregularities, fraud and mathematical errors, which influenced the outcome while affecting the credibility of the results.

The Accusations:

Failure to avail V23b forms (showing constituency totals) to Chamisa or his agents for verification;

Failure to adhere to the presidential results announcement requirement on a constituency by constituency basis, whose motivation the petition alleges was to conceal the data manipulation;

Chairperson delegated announcement of results to all the commissioners;

Returns not tallying with results announced by Zec;

Discrepancies amounting to 700 000 votes between the total registered voters and the votes announced by Zec;

Also discrepancies between the figures provided by Zec on a CD and the figures announced by Zec chairperson Priscilla Chigumba;

The Presidential tally was higher in all provinces than the Parliamentary votes;

Differences between V11 and V23 Forms which points to inflation and deflation of figures;

Zec gave some of the contestants results that they did not earn — presumably pursuant to the inflation and deflation of results;

Prevalence of “ghost voters” showing that more people voted per polling station than were registered;

Failure to post votes outside more than 21% of polling stations, amounting to 2 000 of the polling stations;

Polling stations where Zec said there was a 90% turnout and in all such instances Mnangagwa received 352 897 votes. Evidence to this is supplied, including affidavits from experts;

No tally between the people who voted at polling stations and the announced results. Incidents in Mashonaland Central cited;

370 000 people voted in two hours between 5pm and 7pm in Mashonaland Central;

40 000 teachers on duty prevented from voting on Election Day;

Video evidence showing an irregular postal voting process at Rose Camp in Bulawayo;

An inexplicable high number of assisted voters in comparison with the 2013 figure which suggests voter intimidation via SMS;

About 21 polling stations vanished on Election Day;

Identical Results — At various polling stations candidates would get the same number of votes which is statistically next to impossible;
Percentages not adding up — Announced results show a total of 98,4% instead of 100% amongst others; and;

Zec allegedly forced polling agents to change V11 Forms.

Mnangagwa Response

In his response in opposing papers filed at the ConCourt, Mnangagwa questioned the validity of Chamisa’s electoral challenge, arguing that it was premised on delaying his imminent inauguration, while it was lodged “seven days after the date of the declaration of the results of the election” in violation of the constitution.
Mnangagwa is represented by a legal defence counsel led by Advocate Lewis Uriri.

Highlights of his preliminary objections.

Late filing of the petition: Argues that according to Section 93 of the Constitution, Chamisa’s petition is invalid, since it was lodged at the ConCourt not “within seven days after the date of the declaration of the results of the constitution” in line with the country’s electoral laws;

Papers not served properly: Wants case dismissed with costs on grounds that it was not lodged in line with the constitutionally spelt out procedures, being served by personal delivery to the respondent or authorised agent or to a responsible person at the residence, workplace or business or the person’s chosen address for service;

Papers served late: No valid court application before the court as he was served by the Sheriff on August 11 at 10:30am, a day out of time;

Wrong address: Was supposed to be sued as a poll candidate “and not as the President of Zimbabwe” and the papers should have been delivered at the address given to Zec;

Was not served by sheriff within the legally required seven days;

Contends that Chamisa was approaching the court with dirty hands, by deliberately and consistently saying it is captured by the executive and a Zanu PF extension;
Argues that Chamisa’s bid to overturn his “victory” was frivolous and premised around the need to “create doubt in the minds of the people as regards the integrity of the (electoral) process.”;

Argues that Chamisa’s electoral challenge be dismissed with costs, since the elections were credible;

Chides at the MDC Alliance campaign strategy, which he said was bereft of substance to woo the electorate;

Challenges Chamisa to prove that the election was rigged, through ballot stuffing;

V11 forms verified by all candidates’ agents at the close of polling and posted outside each polling station.”;

Discounts the mathematical “statistical models”;

Unable to find anywhere in the Electoral Act or the Constitution where an election is challenged based on statistical models; and

An election is challenged based on solid hard evidence, using election materials that exist before the filing of that election.

Zec’s response

Zec chairperson Priscilla Chigumba, a judge, this week dimissed Chamisa’s application on technicalities.

Chigumba, who is cited as the 24th respondent, on behalf of Zec and its chief elections officer (CEO) Utloile Silaigwana, declared Chamisa’s entire application fatally and incurably defective.

Submissions by Zec:

No valid application has been filed by the applicant challenging Mnangagwa’s election to the office of the President in terms of the Constitution as read with the Constitutional Court Rules, 2016;

The time for lodging a petition according to section 93(1) expired on August 10 as the seven days prescribed by the law include Saturdays, Sundays and public holidays;
Any filing and/or service that is done outside that August 10 rendered the applicant’s case fatally and incurably defective;

MDC Alliance court application is null: The papers purportedly served by the applicant on August 10, there was no court application as prescribed under r16 of the Constitutional Court Rules. What was in the bound bundle of papers was a cover, consolidated index, notices of addresses of service and a founding affidavit deposed to by the applicant with various annexures thereto;

Deadline missed — the papers were delivered on August 11 at the Mahachi Quantam Building on the eighth day after the declaration of the result instead of within seven days;
MDC Alliance failed to serve Chigumba and Silaigwana with copies of the application on August 10;

Nullity of evidence, including compact discs provided after the August 10 deadline;

Respondents served incomplete application in the absence of the bundles and compact discs;

MDC Alliance can no longer present any further founding papers to the Registrar of the Constitutional Court in respect of CCZ42/18;

MDC Alliance failed to file a complete and therefore valid application with the Registrar so it ought to be struck off the roll;

Absence of critical evidence — The separate bundle is absent, the photographs are absent and the videos he refers to are absent;

Zec has always been independent, transparent and accurate in their conduct as confirmed by several observer missions;

Regarding the rogue elements from the security sector, the averment is lacking in particularity that there is no cogent way to plead to it;

The applicant does not state the names of the polling stations that he alleges to have disappeared on the polling day. No polling stations were created on the polling day. 1HRDC and 2HRDC that the applicant cites as examples of created polling stations are in fact not polling stations. The former stands for ward 1 Hurungwe Rural District Council and the latter stands for ward 2 Hurungwe Rural District Council;

No evidence of rigging is furnished and no explanation given as to how the alleged rigging is said to have taken place;

On V11 forms — Polling agents at the unidentified polling stations he alleges did not have returns affixed would have been given V11 forms before the return for the polling stations is affixed in terms of the law;

Postal votes — The bundle of evidence that the applicant refers to as containing proof of the malpractice, he alleges occurred during postal voting, was not served on the respondents;

The process of collation and verification of the presidential election results was done transparently and the applicant’s agents, Morgen Komichi and Jameson Timba, had full access to the results collation room at the Commission’s national command centre;

Further, Timba is quoted in the NewsDay confirming that they were in the process of verifying the presidential election results. Attached Timba’s photograph in the results collation room. Also appearing in the photograph are the presidential election agents for the NCA and ZIPP political parties. Timba was given V11 and V23 forms;
Chamisa also alludes to having sourced the V11 forms from social media, suffice to remind him that a V11 form is obtained through the provision of section 64(1) (d1) of the Electoral Act. The authenticity of his source of data is thus in doubt; and

The total voter population for purposes of the 2018 general election was 5 695 936 and not 5 659 583 indicated by the applicant. The previously announced number before polling day had been 5 695 706, which figure was adjusted by the addition of 230 voters, who had been registered on a BVR kit in Chegutu, Mashonaland West Province, prior to the cut-off date for the 2018 general election but had not been uploaded into the database.

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