Today the Constitutional Court sits to pass judgement on the application brought before it by the opposition party leader Nelson Chamisa heard this past Wednesday. The following are my thoughts and predictions.
By Lloyd Msipa
The application was based on two things, errors in calculation and procedural irregularities. I predict the court will determine the matter on the merits and discuss the preliminary points as a by the way. The Court has an obligation to teach.
The test in Tsvangirai vs Mugabe is very clear. -Firstly, is there any credible admissible evidence of wrongdoing mathematically or procedurally? The onus is on the applicant to discharge. The standard of proof is for the applicant to establish beyond reasonable doubt.
The Court will tackle each allegation one by one. What the applicant would have said, what the Zimbabwe Electoral Commission would have said and what the first respondent, Emmerson Mnangagwa would have said. The available evidence before the court will be considered. The court will make specific findings on whether or not each allegation has been adequately supported by the evidence or is more probable than not on a balance of probabilities.
The Court will dismiss those allegations that are baseless. Those that have not been substantiated or supported by the evidence. The court will proceed to the second part of the test and analyse whether those allegations which have been substantiated amount to an irregularity that is so material as to have affected the outcome of the election.
If the conclusion is yes, the court will then look at whether the relief sought by the applicant is sustainable. In other words, should the court give the applicant what he prayed for on the basis of the allegations which he proved and which materially affected the outcome?
The applicant sought relief in the alternative. So, first the applicant is entitled to have the declaration in favour of the first respondent, Emmerson Mnangagwa set aside. Is there sufficient evidence or a basis on which to order a rerun. Let us remember that applicant didn’t pray for a recount, he didn’t pray for nullification of the -whole election, but the court is at large to order any of these things.
On the alleged mathematical errors, the court will look at whether the errors were so material as to affect the outcome of the election. ZEC took the court into confidence by -acknowledging “through my fault” of having done wrong, (Mea culpa). The 0.1 -percent minor errors. ZEC is allowed a 10 percent margin of error. ZEC availed all the 10 900 V11 forms on a disc, the primary evidence that the applicant failed to show.
The alleged mathematical errors or alleged manipulation of figures by ZEC to favour first respondent, Emmerson Mnangagwa remain unproven. The final figure leaves first responded with 50 percent plus one vote, even with 56.67 percent. So, there is no basis for the relief sort. The declaration by ZEC stands as the applicant failed to discharge the burden of proof on any allegations.
On the issue of the 16 polling stations with identical results, ZEC averred that it was true and availed the V11s to prove this to the court on the discs attached to the papers. The two examples highlighted to the court with hardcopies was not an indication that ZEC couldn’t prove it. All the primary data, the V11s were placed before the court on a disc.
On the procedural errors, ballot paper, voters roll, postal votes, ZEC has orders of the electoral court which are EXTANT (still in existence) and have not been appealed against. And again, onus not discharged on the papers before the court. The interference by Chiefs, food handouts, alleged giving of information to ZANU PF on the voter’s roll, the burden of proof has not been discharged. Bias by the ZEC chairperson has not been proved. Collusion between ZEC and first respondent, Emmerson Mnangagwa, not proved. The- bias by media not proved.
I think the most important of all the applicant failed to utilise the domestic remedies available to him. The court is likely to take a hard-line position on this. The applicant is a lawyer, he had relief in the electoral court which he chose not to avail himself. In essence, the allegations of procedural irregularities not buttressed by admissible evidence for which the court can rely on to reach a conclusion that ZEC deliberately and intentionally subverted the will of the Zimbabwean people not sustainable. Or that ZEC deliberately and intentionally, administratively and systematically failed to follow procedures laid down in the electoral act for the express intention of giving first respondent an unfair advantage not sustainable either.
I predict that most of the preliminary points will be upheld by the court. The only question that may arise is a jurisprudential one. Should the court condone the deliberate failure to comply with the rules when there is no formal application for condonation before it. Condonation must be applied for in advance. This should have been done on a sworn statement explaining why the rules were flouted. It is an indulgence which must be prayed for. It cannot and must not be made from the bar during the course of the hearing as an afterthought. And especially after prompting by JA Patel.
Of equal importance, Makarau J highlighted the provisions of section 169 of the electoral act. It reads as follows;
Notice of election petition to be served on the respondent
‘Notice in writing of the presentation of a petition and of the names and addresses of the proposed sureties, accompanied by a copy of the petition, shall, within ten days after the presentation of the petition, be served by the petitioner on the respondent either personally or by leaving the same at his or her usual or last known dwelling or place of business’
In my view, this provision is inconsistent with the -provisions of section 93 of the Constitution. If the electoral act had been aligned with the Constitution, it wouldn’t be there as it is currently couched. So, as it stands, it is not only inapplicable, but it is void to the extent of its inconsistency with the Constitution with section 93. Section 2 of the Zimbabwe constitution highlights the supremacy of the constitution. Any law, custom or rule inconsistent with the constitution is void to the extent of the inconsistency.
So, in essence, section 2 is crystal clear. Besides 10 days would lead to absurdity. The Court has 14 days to hear and determine the outcome. Why should the applicant be given 10 days? Besides, by refusing to allow the applicant to serve those discs separately from the application the Chief Justice already made a ruling that everything must be done filed and served within 7 days.
So, in essence, this is- my prediction, the application will be dismissed for the above reasons. Its highly unlikely that there will be any dissenting judgement on a matter of such grave national importance. If there is a dissent I predict it would come from Patel JA. The opposition have already portrayed him as a victim of a failed assassination attempt, however, the court only needs five out of the nine on the bench to agree. These are my thoughts and predictions Zimbabwe.