ConCourt releases full 2018 elections judgment

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)

ANDREW KUNAMBURA

MDC leader Nelson Chamisa failed to provide satisfactory evidence that the Zimbabwe Electoral Commission (Zec) manipulated the 2018 presidential election result in favour of President Emmerson Mnangagwa when he challenged his narrow victory, the full Constitutional Court (ConCourt) judgment reveals.

Chamisa approached Zimbabwe’s final court of appeal seeking an order reversing Mnangagwa’s election as head of state in the July 30, 2018 presidential poll — held concurrently with legislative and municipal elections — arguing that Zec was complicit in systematic rigging which benefitted Mnangagwa.

Mnangagwa, who rose to power in November 2017 through a military coup that toppled the late strongman 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.

Initially, Chamisa wanted the court to declare him winner, but he later altered his plea and sought to compel the apex court to annul the result and order a presidential election run-off.

In his ConCourt challenge, Chamisa argues that he garnered 2 674 032, while his rival Mnangagwa got 2 008 639 of the vote.The petition challenged Zec’s failure to follow due process relating to collation and announcement of results.

Chamisa, through his legal team led by Advocate Thabani Mpofu, argued that the actual results announced by Zec were replete with irregularities, fraud and mathematical errors, which influenced the outcome while eroding the credibility of the result.

In its initial abridged ruling, read by Chief Justice Luke Malaba on August 24 last year, the full nine-member ConCourt bench dismissed Chamisa’s petition on the basis that his argument lacked the backing of requisite electoral residue in the form of presidential constituency return V23B and V11 forms.

The V23B and V11 forms are used to record the data at a polling station after the votes have been counted.In a full judgment released last night, the bench maintained its initial stance, saying Chamisa “made several generalised allegations of irregularities against the commission” and therefore found no merit in his case.

“He made a startling submission that these generalised allegations would suffice to prove the case without having recourse to the primary source evidence. The commission nonetheless took time to analyse the allegations against it and produced clear evidence to refute the allegations, making it incumbent on the applicant to discharge the onus which was on him. The onus to prove the case is not on the person accused. The accused person does not have to prove his or her innocence. The respondents in this case needed only to respond,” the court said in its verdict.

The court also accused Chamisa of fabricating evidence in a bid to convince the bench he had a strong case.“The commission proved through the V11 Forms produced that the allegation that some forms had been signed and not populated was false. There appeared to have been a deliberate fabrication of evidence with intent to mislead the court. Without access to the sealed ballot boxes residue, this allegation simply remained as refuted.

These are the kind of allegations that would have been easily proved by the evidence in the closed and sealed ballot boxes and the sealed packets,” the judgment reads.

The bench also ruled that several other allegations Chamisa levelled against Zec relating to ghost polling stations, widespread disenfranchisement, double voting and disappearance of ballot papers did not hold water as they were “too bald and general to form the basis for the relief sought”.

The judges further accused Chamisa of seeking to mislead the court into believing that Zec created new polling stations on the actual voting day.“The applicant did not so much rely on the allegation that the Presidential election was not free, fair and credible on the basis of the generalised and unproved allegations he made against the commission. The essence of the case was that the applicant was the winner of the presidential election. That is the allegation he failed to prove,” the court ruled.

“In the final analysis, the court found that the applicant failed to place before it clear, sufficient, direct and credible evidence to prove the irregularities he levelled against the commission. He also failed to prove the allegation of electoral malpractices he levelled against the first respondent. The applicant did not prove the alleged irregularities as a matter of fact. It would be unnecessary in the circumstances to ask and answer the question whether the alleged irregularities affected the result of the presidential election.

“It is an internationally accepted principle of election disputes that an election is not set aside merely on the basis that an irregularity occurred. There is a presumption of validity of an election. This is so because as long as the election was conducted substantially in terms of the constitution and all laws governing the conduct of the elections it would have reflected the will of the people.

An election can only be set aside if it is proved on a balance of probabilities that the irregularities shown by clear and credible evidence to have been committed by officers of the body charged with the duty to conduct the election in accordance with the law of elections affected the result.

It is not for a court to decide elections; it is the people who do so. It is the duty of the courts to strive in the public interest to sustain that which the people have expressed as their will,” the judgment further reads.

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