24 August 2018

Zimbabwe: The Concourt Ruling on Zimbabwe's Election Challenge

Zimbabwe's Constitutional Court is delivering its ruling on the opposition's election challenge - Kubatana.net via their Twitter feed, shares this blow-by-blow of the ruling that decides whether incumbent President Emmerson Mnangagwa or MDC Alliance leader Nelson Chamisa will lead Zimbabwe:

Chief Justice Malaba says it is a unanimous decision, but the reasons are not yet available are in full.

Zimbabwe's ConCourt judgement Applicant seeks:

I) Presidential election was not conducted in accordance with the law and was not free and fair

II) Election results & declaration announced by ZEC is declared unlawful and set aside

III) That Chamisa be declared the winner

1) Is the application properly before the court? Respondents argued it wasn't, because only served on 8th day (11th Aug when deadline was 10th) CJ Malaba says Constitution 7 days = 7 calendar days, including weekends.

Applicant had obligation to lodge papers with court AND serve on all respondents, through Sheriff of Zimbabwe, by 10 August. Applicant attempted service on own behalf - not through Sheriff. Respondents eventually served on 11 Aug - Contrary to provisions of Constitution.

Similarly, notices of opposition were due 14 Aug. This was a public holiday, therefore Constitution says they were then due the next day business day after public holiday (15 Aug). These were duly served and properly filed with the registrar.

The applicant filed a defective application because of the date. But the court has the discretion - given the importance of the matter and public interest involved - to hear application for condonation of non compliance granted.

So this means - Court says the application was filed late BUT, they'll still hear the matter anyway because it is so important for the public interest. Now onto the merits . . .

Malaba says High Court already heard a number of the issues on merits that the applicant raised, specifically: - postal voting - design of postal ballot - voters roll - civil servants voting So ConCourt won't look at these.

Standard of proof: There's an assumption of validity in the results (ZEC's announcement) so it's on Chamisa's team to prove the irregularities.

Generally, No election declared invalid by returning officer if the Court things the election was generally conducted in accordance with the law & act didn't affect result.

This would only change if Court convinced by evidence that entire process so fundamentally flawed that it cannot be seen to have been conducted in substantial compliance with the law.

So, court would only invalidate presidential election in very limited and specific instances, e.g. - Fraud - Substantial non-compliance with the law It's on the applicant to prove to the satisfaction of the Court that election conducted in substantially unacceptable way.

The applicant needed to produce source evidence that the results announced were incorrect and did not reflect the true will of the people of Zimbabwe.

Chamisa made general allegations against Mnangagwa, but made no personal allegations of rigging. All allegations were made without particularity and specificity. This would have been required to prove allegations of complicity by Mnangagwa.

If Chamisa had proved ZEC had rigged, this could have invalidated election even in absence of Mnangagwa's involvement. Chamisa made allegations about ZEC's failure, but brought no proof or evidence for these allegations. The Court decides matters based on facts and evidence.

On a matter this serious, it is even more important that evidence be brought so that almost no reasonable doubt could be there about truth of allegations of fraud or misconduct. The best evidence would have been the content of the ballot boxes themselves.

Comparison of ballot boxes and ZEC results would have given Court evidence of rigging, but Chamisa's team did not bring this.

When presidential election result was announced, Chamisa could have applied for a recount within 48 hours and thus obtain evidence from the residue (ballot boxes + contents).

Alternatively, he could have approached Electoral Court for unsealing of ballot boxes. These are the ways candidates should gather evidence as to electoral misconduct and whether ZEC released genuine results.

Armed with the evidence from a recount or analysis of contents of sealed boxes, Chamisa's team could have substantiated allegations, but they chose not to take this route.

If applicant had placed V11 forms which were signed by agents, & compared w V11s in unsealed ballot boxes, this would have easily: - Addressed questions on number of votes at any polling station - Addressed questions of over voting - Debunked allegations of upsurges (e.g. Mash C)

This would have addressed issues of ZEC's data being inaccurate, and would have easily resolved and detected irregularities.

When asked why this evidence was not obtained, Chamisa's advocate said it would be a "poisoned chalice" - that by the time he would have asked them to be unsealed, they would have already been manipulated, so it would have been futile.

But court says if agents had V11 in custody, they could have compared them against residue and results declared. Even if they didn't have agents at every polling station, they could have used a sample, to compare any disputed locations.

If forms ever were believed to be incorrect, specific and particular cases, with evidence, should have been brought before the court. This could have been connected to allegations of malpractice against ZEC.

All allegations against ZEC were debunked by their team (Kanengoni), says CJ Malaba.

ZEC's declaration (ED is President) is final and can only be altered by the ConCourt. ZEC made a critical admission that the results were incorrect and made minor corrections based on data capture inaccuracies. It acknowledged that this affected the # votes, but not the RESULT.

The RESULT is the declaration of a winner by 50% + 1 vote. So ZEC changing its figures and correcting its clerical errors does not change the result if the errors do not alter the 50% + 1 threshold.

The applicant needed more evidence than ZEC's admission of some of its incorrect maths, says Malaba.

On allegations of electoral malpractices by ZEC - Chamisa's case made generalised allegations and a startling submission that generalised allegations proved his case without resorting to primary source evidence.

ZEC took time to asses the allegations against it, and refuted them with tangible evidence. So onus to prove the case was on the applicant. The accused person doesn't have to prove innocence. ZEC only needed to respond.

ZEC proved that allegation that V11s were signed but unpopulated was unsubstantiated. This looks like fabrication of evidence by applicant with attempt to mislead court. Without evidence to residue (sealed ballot boxes) this allegation is unsubstantiated.

Allegation of 40K disenfranchised teachers was generalised and not supported. Plus, ZEC demonstrated that some teachers willingly chose not to vote, and rather chose to serve at polling stations. No evidence even of how many teachers were registered voters, or effect on result.

Ghost polling stations - Allegations lacked specificity and particularity, and were disproved by evidence brought by ZEC. These allegations could have been easily proven by access to evidence in sealed ballot boxes.

The court finds there was no clear, direct, sufficient and credible evidence that the irregularities that Chamisa alleges marred the election process materially existed. In other words, there was no proof of the happenings of these irregularities.

So there's no point even looking further at whether the alleged irregularities would have affected the results.

The application is dismissed with costs, says CJ Malaba. And ED Mnangagwa is duly declared the winner of the 30 July presidential election. There will be a fully dressed judgement in due course.

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