Mr Nelson Chamisa and his MDC-Alliance cannot prove to the Constitutional Court that presidential election results announced by the Zimbabwe Electoral Commission (ZEC) were wrong as they did not make use of a provision in the Electoral Act which allows for the recounting of votes within 48 hours, the Zanu-PF legal team has said.
Mr Chamisa last Friday filed his election petition at the Constitutional Court challenging President Mnangagwa's victory in the July 30 harmonised elections.
Zanu-PF will this morning file opposing papers against the election petition.
In an interview with The Herald yesterday, Zanu-PF secretary for Legal Affairs Cde Munyaradzi Paul Mangwana queried the wisdom of claiming that the election results were wrong without requesting a recount as provided for by law.
Official results from ZEC indicate that President Mnangagwa won the elections with 50,8 percent of the votes cast, beating Mr Chamisa who got 44,3 percent.
In his appeal, Mr Chamisa claims to have won the majority of votes and that the results announced were manipulated.
He, however, did not demand a recount in any offending polling station within 48 hours of the final announcement on August 3, as he was entitled too, in order to prove that the results were wrong.
Section 67 A (1) of the Electoral Act (Chapter 2:13) that deals with Recounting of Votes states that: "(1) Within forty-eight hours after a constituency elections officer has declared a candidate to be duly elected in terms of Section 66 (1), any political party or candidate that contested the election in the ward or constituency concerned may request the Commission to conduct a recount of votes in one or more of the polling stations in the ward or constituency.
"A request for a recount made in terms of subsection (1) shall:
a) be in writing, signed by an appropriate representative of the political party or candidate making their request; and
b)state specifically the number of votes believed to have been miscounted and, if possible, how the miscount may have occurred, and
c) state how the results of the election have been affected by the alleged miscount."
Cde Mangwana said if the MDC-Alliance was serious about having been robbed of an electoral victory, they would have made use of relevant legal provisions at their disposal.
"They did not make use of that provision. If they felt that the votes were not properly counted, they had the option to request a recount. They cannot prove before the court that the results were wrong as they do not have the correct results," he said.
Cde Mangwana told ZBC News yesterday that a 12-member legal team was ready for the responses to litigation by Mr Chamisa, with the opposing papers bearing testimony of the party's commitment to safeguard the interest of the electorate.
"Indeed we shall be filing our opposing papers tomorrow (today) by 10am and we are ready for whatever they are arguing as we are really committed to the case," he said.
In his much-hyped application, Mr Chamisa is challenging among other things the announcement process. He claims that the results are not credible simply because ZEC chair Justice Pricillah Chigumba delegated the announcement of provincial presidential results to fellow commissioners.
"By our law, results of a presidential election must be announced by the chairperson. In casu, the chairperson delegated, in her presence, the task to all the commissioners. This was in breach of mandatory statutory provisions. No explanation exists for this breach," his lawyers wrote.
Other irregularities cited by Mr Chamisa's lawyers include the announcement of results on a provincial basis instead of per constituency.
"In terms of the law, the results of a presidential election must be announced on a constituency by constituency basis. The results that are being challenged were for reasons that have not been stated and which are alien to law announced on a province by province basis," the application reads.
As a result of the so-called breaches, Mr Chamisa is asking the Constitutional Court to declare him the winner of the presidential elections or alternatively to order a fresh poll.
Cde Mangwana told our sister paper, The Sunday Mail, that the MDC Alliance missed the deadline to serve its poll petition on President-elect Emmerson Mnangagwa and also did not serve the papers at the address the President-elect provided to ZEC for purposes of the election.
Further, the bulk of the other 21 Presidential candidates cited as respondents in the MDC Alliance's petition said they had not been served with any papers, with some slamming Mr Chamisa, for trying to drag them into his battles.
Zanu-PF wants the Constitutional Court to dismiss the petition.