Absolving ZEC plunges voters into crisis

THE curtain finally came down on MDC Alliance leader Nelson Chamisa’s Constitutional Court (ConCourt) application challenging the presidential election result when the nine-member bench unanimously dismissed the case on Friday.

Brighton Mutebuka,Lawyer

The court went on to confirm Emmerson Mnangagwa as the duly elected President of Zimbabwe. The only surprise was that there was condonation of the applicant’s late serving of papers to the respondents. The court’s decision was final and could not be appealed against. Consequently, it was swiftly followed by Mnangagwa’s inauguration on Sunday.

In a withering assessment, Chief Justice Luke Malaba concluded that virtually all of the allegations in the petition simply lacked specificity and particularity and were not supported by primary evidence. He also further highlighted the scarcity of primary evidence such as V11 forms and the failure to ask for the residue to be unsealed and recounted, a theme that he had repeatedly touched on during the hearing last week on Wednesday.

Malaba placed emphasis on the “presumption of validity” of the results and how difficult it is to set aside the declared results. He ruled that it was the court’s view that the Zimbabwe Electoral Commission (Zec) had emphatically addressed all the allegations that had been levelled against it with clear, incontrovertible evidence, which had the effect of shifting the onus back to Chamisa’s team, a burden that the latter failed to discharge to the court’s satisfaction.
The chief justice held that Zec’s declaration would stand. In the end, the application was dismissed with costs, which is a massive challenge given the complexity of the proceedings and the resources that are likely to have been expended by the winning parties, Zec and Mnangagwa.

Critical analysis

It is submitted that the court’s decision broadly stands up to scrutiny. However, as will be shown below, there are also a few areas of concern which trigger legitimate misgivings concerning the correctness of the judgement.

The onus was on “Team Chamisa” to discharge its burden in terms of proving that the election was fundamentally flawed and did not reflect the democratic will of the people of Zimbabwe. It could only ever sufficiently discharge this burden through systematically evidencing clear disparities between the announced results and the returns that were on its own V11 Forms.

The fateful decision not to apply for the unsealing of the residue incurably undermined their case. It is simply the case that the combined force of Zec’s answering affidavit and generally positive official reports from several independent observers from Zimbabwe and abroad meant that the applicant faced a mammoth task to prove that the whole process was infected by gross irregularities. In relation to this critical development, it is noteworthy that during oral submissions, while Advocate Thabani Mpofu (Chamisa’s lead counsel) showed that he was aware of this procedure, he appeared to have been under the impression that the process would be too onerous owing to what was held by the court in the Jameson Timba decision about the need to enjoin all the respective candidates that had participated if one is challenging a Presidential result in harmonised elections. This is a position that has been repeated post hearing by those involved in the court process.

The chief justice’s position seems to suggest that this was easily surmountable. To this extent, it appears to me as if, far from showing a settled, deliberate, preconceived strategic course of action on this potential remedy, Mpofu’s reference to the now infamous “poisoned well”, while under intense interrogation from Malaba appeared to stem from an attempt to seek a convenient exit point concerning a state of affairs that he was otherwise uncertain about.

Put differently, the chief justice’s repeated criticism for failing to take this route meant that with each answer proffered that he rejected, Mpofu was finally cornered into making an unplanned submission. It is highly likely that if this course of action had been deliberate and calculated, it would have been the very first and only submission that would have been made in response to the chief justice’s sustained grilling.

It is my respectful submission that the strategic decision to only rely on establishing Zec’s mathematical errors was misconceived and amounts to a grave miscalculation or error of judgement. There is simply no cogent reason at law why Chamisa’s lawyers would have chosen to limit evidence in this way. It seems to be too theoretical a premise.

It would only ever work if Zec was making clear admissions of mathematical errors that were of such a margin as to bring Mnangagwa’s winning tally below the 50% + 1 vote. What is baffling is that, in its founding affidavit, Chamisa’s team appears to have been acutely aware that the mathematical errors were just but one significant strand of the evidence to base their case on. This leads me to conclude that the decision to pull away from other strands of the evidence is likely to have been a forced and unplanned event, perhaps due to challenges in getting that alternative evidence admitted on the day.

As highlighted above, once Zec started to refute the allegations with direct evidence from V11 forms in a sustained, credible and persuasive manner which directly contradicted Chamisa’s allegations, they needed to rebut that evidence with their own direct evidence, point for point. That clearly did not arise. I am also aware that Chamisa’s lawyers did try to cure the evidentiary deficit through applying for a subpoena via its founding affidavit. I have been told that this was refused by the court. I have exhaustively looked at the footage of the proceedings and have been unable to see where this was renewed orally and a specific decision was made to refuse it.

It is clear that Chamisa’s lawyers did not have all their V11 forms from across the country. It is not clear why, as there has not been a credible reason advanced addressing what is clearly a crucial part of their case. As they have not complained about this, then it suggests that it could be an internal, self-inflicted challenge. This severely handicapped their capacity to prosecute their case with a solid anchoring on primary source evidence. This became critical when Zec counterpunched by highlighting that it was unclear what Chamisa’s team source figures was.

Furthermore, it not only managed to submit V11s in relation to this, but also evidenced that these had been signed by Chamisa’s polling agents and that Chamisa’s lawyers had mischaracterised the evidence by only submitting selected, limited V11s which were misleading. There was no effective comeback on this by Chamisa’s lawyers. In essence, the core of Chamisa’s evidence fell apart when it was subjected to rigorous scrutiny by the court. It must however be noted that there are potential areas of concern in relation to the court’s approach to what appears to be critical evidence of Chamisa’s case, which did not make it into the courtroom.

We are aware that there is a letter that was written by the registrar making reference to a decision that had been made by the chief justice on his own to exclude certain evidence that had been submitted by Chamisa’s lawyers and asking Advocate Silvester Hashiti to collect this evidence, but reasons for the rejection are not clear.

Furthermore, given that the court has now condoned the late service of Chamisa’s application, this brings that critical decision under intense scrutiny pertaining to its potential impact on the outcome.

Given the subsequent condonation, it is submitted that the chief justice has left himself open to charges that his intervention was premature and procedurally irregular. Surely if the condonation is being justified on the basis of the scale of the public interest involved, then it follows that by that extension, that evidence needed to be ventilated before the full bench and with the public at large in tow. As Chamisa’s lawyers had made reference to the evidence in its founding affidavit, and some of the evidence was reported to come directly from Zec, it cannot be said that evidence was immaterial to the proceedings.

There is also another highly relevant related matter that the court ought to engage with in its written judgement. This pertains to the submissions made by Chamisa’s lawyers that the registrar interfered with the service of process which materially impacted on the service of bundles of evidence. This is a very serious charge which goes to the root of the administration of justice and the rule of law. A full-scale investigation has to be made to ascertain what informed the registrar’s alleged conduct.

This is highly relevant material given that Chamisa’s team has attributed the delay to serve and the incomplete service on Zec to this development, which has ultimately led to significant chunks of its evidence being excluded by the court. It is therefore possible to display a clear connection between that conduct and potential prejudice to Chamisa’s case. It is further submitted that the approach that the chief justice made has also left him susceptible to charges of engaging in conduct which is capable of creating a perception of bias. This is not the same as saying that he was biased. The import of the submission is that the conduct complained of is reasonably capable of creating such a risk. This is because, through that mighty stroke of a pen, significant chunks of the applicant’s evidence was rendered inadmissible to the great benefit of Mnangagwa and Zec’s positions, so it clearly materially benefited the primary, immediate opposing parties to the proceedings.

One only has to look at Justice Priscilla Chigumba’s answering affidavit where there is a consistent reference to an inability to plead competently owing to the absence of such evidence. It is also instructive to highlight that the manner in which that intervention was carried out clearly engages public law precepts to the extent that it was done in a capricious manner and left Chamisa’s lawyers without an avenue to challenge it before the hearing.

Leading the matter to its logical conclusion, it is submitted that it cannot be discounted that part of the reason why Mpofu was unable to go beyond submissions based on mathematical errors is this development. There has to be a caveat in respect of this. It is not being emphatically argued that the case turned on the decision to render that evidence inadmissible.
There is not enough evidence to reach such a sweeping and far-reaching conclusion. In fact, there are vast swathes of the application where the averments that were made indeed lacked precision and were not supported by primary evidence such as V11 forms.

A good example relates to submissions made in relation to high voter turnouts in certain voting constituents as well as voting trends.

Surely in relation to both, this needed to be made with reference to the total number of polling stations, the number of registered voters, the actual number of voters who voted on the day, the party’s V11 forms, with the coup de grace being presenting clear discrepancies between those and Zec’s V11 forms and its announced results. Also, the reference to the alleged 40 000 that were disenfranchised clearly needed better precision pertaining to whether or not they were registered (for example through the provision of slips confirming voter registration), the actual number that had been affected (maybe from a membership association), and perhaps some good old statistics from a credible source from the previous elections, including 2013, showing their voting preferences and reports of Zanu PF and the state targeting them on this basis.

I will thus clarify that the submission is simply that by limiting significant strands of evidence of Chamisa’s application ahead of the hearing, the court left itself open to charges of procedural unfairness, which is capable of materially infecting the proceedings and by association, the outcome. This is because, by the time the condonation is made, it is already too late for Chamisa’s prejudice to be cured. As the prejudice was clearly material to the proceedings, it renders the decision open to charges of being unsafe.

As the final arbiter, ConCourt has a broad range of powers that are open to it to facilitate the conduct of a credible, exhaustive hearing. It was open to the court to use this power fully to facilitate the conveyance of all the relevant evidence before it by all the parties so that there could never be a seed of doubt concerning who had won the election. This is particularly important in view of Zec’s mortally damaged reputation from previous elections, its full duty of candour to the court, its constitutional obligation to return credible, verified results, the numerous errors that it admitted to in computing the final tally in this election and the overriding importance for Zimbabwe to put to bed once and for all the long running scourges of disputed results and legitimacy.

In equal measure, it has to be acknowledged that aside from the concerns pertaining to the procedural concerns that I have referred to above, when it came to the actual hearing on the day, the court made clear conclusions that were open to it on the evidence. There is not even a remote possibility of the court’s conclusions being attacked on account of irrationality. It clearly refers to the evidence or its absence thereof and draws conclusions accordingly. The only concern in this regard pertains to the controversial conclusion that Zec’s repeated correction of its results has got no bearing on the declaration because this did not affect the final result of 50% + 1.

It is submitted that this is highly questionable as the premise upon which Zec made the corrections was not investigated to the fullest extent by the court making the factual premise of its position uncertain.

Much more importantly, it must be remembered that such a court application is “Sui Genesis”, meaning in a special class and Zec is not an ordinary and normal respondent, which should just be concerned with addressing only what is accused of and no more. It is simply not enough that Zec attributes this to clerical errors.

The court should have used its oversight role to get to the bottom of this. The fact that Chamisa’s lawyers were unable to address this through its own full complement of V11 Forms does not absolve the court from its constitutional responsibility towards the Zimbabwean voting public to return a decision that is thorough and stands up to scrutiny. This is particularly so given the very narrow marrow margin of Mnangagwa’s victory.

Mutebuka is a Zimbabwean solicitor based in the UK. He is registered to practise law in Zimbabwe and an alumni of the Universities of Zimbabwe and Leeds. He runs Mutebuka & Co Immigration Lawyers in Leeds and is also a sports consultant. He writes in his personal capacity.