ConCourt: The major highlights

Chamisa-MDC-leader.jpg

In this Thursday, March 8, 2018 photo, the leader of MDC-T, Zimbabwe's biggest opposition party, Nelson Chamisa gestures during an interview with the Associated Press in Harare. Ahead of Zimbabwe's crucial elections this year, the biggest opposition party has selected a charismatic lawyer and pastor to challenge the military-backed president in the first vote without former leader Robert Mugabe in decades. (AP Photo/Tsvangirayi Mukwazhi)

THE Constitutional Court (ConCourt) will today deliver judgement in MDC Alliance candidate Nelson Chamisa’s election petition after parties presented their submissions before a nine-member bench led by Chief Justice Luke Malaba on Wednesday.

Tinashe Kairiza

Chamisa is challenging the presidential election result announced by the Zimbabwe Electoral Commission (Zec) for the July 30 election. Zanu PF’s Emmerson Mnangagwa was declared winner of the disputed poll after garnering 50,8% of the vote while Chamisa polled 44,3%, according to results initially released by Zec, although the commission later controversially altered the figures.

Below are highlights of the submissions presented by lawyers representing Chamisa, Mnangagwa and Zec.

Chamisa’s legal team led by advocates Thabani Mpofu (far left in the picture above) and Sylvester Hashiti first presented their submissions, pivoted around a slew of allegations that last month’s disputed poll was rigged in favour of Mnangagwa.

Mpofu argued that the declaration made by Zec in announcing Mnangagwa as winner of last month’s watershed poll should be nullified after the electoral body changed the election outcome on “three times over” since the presidential petition was lodged.

He argued results announced by Zec were not verified as required by law. “What we established in seven days is systematic rigging and systematic cover up.

I intend to deal with figures. Zec admits to making five errors. They accept expert criticism that attacks the validity of the results.

The results announced by Zec were disowned by Zec. The third set of results must be backed by primary data, and there is no primary data. Who verified those results? The law says results must be verified before they are announced,” Mpofu argued.

Mpofu argued that Chamisa was prejudiced of an estimated 31 800 votes due to various electoral irregularities. “Once we knock off 31 800 votes (from Mnangagwa) the 50,8% threshold disappears,” he said.

Mpofu submitted that Chamisa could have been prejudiced an additional 40 127 votes, arising from entries captured by Zec reflecting voters who did not cast the presidential ballot but voted in the parliamentary election.“The difference between presidential and parliamentary tallies produces 40 127 votes. Can this difference exist by law? In harmonised elections, if a voter comes and chooses not to vote, Zec must make an entry. Zec has not produced entries for those because they do not exist.

Those are created votes. Once there is a dissonance in the parliamentary and presidential tally the onus is on Zec to give an explanation,” he argued.

Chamisa’s legal team argued that during last month’s landmark poll, Zec set up “ghost polling stations” to rig on behalf of Mnangagwa. Mpofu contended that Mnangagwa was a beneficiary of votes cast at those fictitious polling stations. Chamisa’s legal representatives contended that an estimated 10 000 votes emanating from ghost polling stations were credited to Mnangagwa. “Zec has violated the constitution in a matter that benefits the first respondent (Mnangagwa). Numbers do not lie, we are above the 31 000 threshold. A run-off is unavoidable. There is no need to defer to primary data when figures announced by Zec are wrong. The primary data cannot be relied upon, it is a poisoned chalice,” Mpofu argued.

Mpofu also argued that Zec “manipulated” V11 forms to prejudice Chamisa of votes he had amassed at various polling stations. The legal team argued that it could not present evidence of “doctored V11 forms (primary evidence) since such evidence was not credible. “This is evidence of manipulation by Zec. The court cannot ask applicant to rely on data that is manipulated. There is no valid result, there is no valid application. If you go to the residue you will be drinking from a poisoned well,” Mpofu contended.
Mpofu said public media coverage in the build up towards last month’s election was skewed in favour of Mnangagwa.

Mpofu also highlighted that Zec admits in its opposing papers that it made various “errors” in consolidating the votes. “All the errors and mistakes benefit the first respondent. The court cannot allow Zec to go scot free on this matter. It will be a sad day for our democracy if the petition is thrown out,” Mpofu said.Mnangagwa’s legal team led by Advocate Lewis Uriri (far right in the above picture) challenged the applicant (Chamisa) to present “substantial” evidence to prove allegations that the election was rigged.

Uriri dismissed the allegation that Chamisa was robbed of votes through “systematic rigging and manipulation” by Zec on behalf of Mnangagwa. “I wish to debunk the notion that numbers do not lie. There is no evidence placed before the court to substantiate allegations that have been made. What carries the day is evidence that is admissible,” Uriri said.

He argued that allegations raised by Chamisa were baseless since they were not substantiated by credible evidence. “By principle, the applicant should have substantiated his allegations with evidence. There is no evidence before the court. He relies on evidence that has not been placed before the court. The bundle of evidence they rely upon was not lodged before the court,” Uriri said.“The applicant does not wish to relate to the content of the residue (cast ballots). Numbers do not lie if they are correct.”
Mnangagwa’s legal team argued that Chamisa’s application was not lodged as prescribed under the country’s electoral laws. Uriri implored the court to dismiss Chamisa’s petition. “We are aware that there is a bundle of evidence which makes the backbone of the averments of the applicant which is not before the court. The application is irregular. This application was not seriously done. He (Chamisa) fears what is inside the ballot,” Uriri said.

Uriri questioned how Chamisa’s legal team mathematically arrived at the conclusion that the applicant was prejudiced of massive votes. “The integrity of the source of these figures cannot be vouched for. He alleges that 700 000 votes cannot be accounted for. The rhetoric that numbers do not lie cannot be founded on anything but official figures,” Uriri noted. Zec, represented by Advocate Tawanda Kanengoni (centre in the picture), highlighted that even after revising the initial poll outcome, Mnangagwa would remain the undisputable winner of the July 30 elections.

He contended that it was incumbent upon the applicant to prove allegations of a rigged poll with substantial evidence. “In a matter as this, the onus is upon the applicant to present sufficient evidence to prove his allegations,” Kanengoni said.

Zec argued that Chamisa’s application violated requirements stipulated by law. “The application was not complete because it has several things missing. There is effectively no valid application before you according to section 93 of our constitution,” Kanengoni said.

Kanengoni said it was not the electoral body’s mandate to investigate why there was a high turnout of voters who requested to be assisted on the day of voting. “The commission has no right to inquire why someone requests to be assisted; to the contrary, inquiring would be against the dictates of the law,” he highlighted. He said it was not the responsibility of Zec to investigate the voting trends and preferences of voters, arguing that the electoral body has no speciality in “behavioural science.”

Kanengoni highlighted that Zec only reviewed the initial poll outcome arising from “clerical errors” after Chamisa lodged his application, citing the same irregulalrities.

He however said the outcome alteration was nominal, and would not change the declared winner. “There is only a variance of 0,01. That does not change the validity of the declaration. The declaration was correct,” Kanengoni said.

Zec’s legal team emphasised that the postal voting process, which commenced before polls were opened to the public on July 30, was conducted in a transparent manner. “It is all very vague, it is all very general, there is no evidence to back it up.

The sum of what we have said is that there is no application before you,” argued Kanengoni.

He noted that a few “clerical errors” were made which would however not change the poll outcome. “Upon receipt of application, Zec subjected its data to assessment and there were a few clerical errors which do not change the results in a big way. The effect is non-significant towards the declaration. The clerical errors do not change the results”

Kanengoni dismissed it as “fallacy” allegations raised by Chamisa’s legal team that Zec established various ghost polling stations. “There is not a single name that has been given of a polling station which disappeared. The court has been consistent that applicant should base his allegations by revisiting the residue (cast ballots). But he knows that he will not find any joy in the ballot,” he said.

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