The Constitutional Court has set Friday, the 24th of August
as the day it will deliver the ruling on the election results challenge by the
MDC Alliance leader, Nelson Chamisa.
Chamisa wants the Zimbabwe Electoral Commission (ZEC)’s
declaration of President elect, Cde Emmerson Mnangagwa as the winner of the 30
July elections set aside, alleging several irregularities.
However, after close to 9 hours of hearing submissions from
legal representatives of Chamisa, Mnangagwa and ZEC today, the bench of 9
judges reserved its ruling and adjourned the court proceedings for Friday, when
they will announce their ruling, which shall be final.
“This is the end of
proceedings today. Judgement is reserved, and let’s meet again at 2pm on
Friday, the 24th of August for the judgement,” said Chief Justice Luke Malaba
while closing today’s historic proceedings.
In the court, the bench earlier thrown out submissions by
respondents 5, 17 and 20, saying they were not properly before the court.
“The papers have been expunged from the record with no
order as to costs. Reasons for the decision shall be contained in the main
judgment,” Chief Justice Malaba said pertaining the submissions of Noah
Manyika, Elton Mangoma and Daniel Shumba who either wanted to fully or
partially support the filed arguments of Chamisa.
The lawyer representing ZEC had concurred with Advocate
Lewis Uriri, representing President Mnangagwa, that respondents in the matter
had two options, which are to file opposing papers or not to file any papers,
but not to support the applicant.
Then on the main case, Chamisa’s legal team led by Advocate
Thabani Mpofu was the first to present its heads of arguments.
The team raised a lot of allegations, among them that the
pre-election environment favoured Zanu PF, that ZEC Chairperson Justice
Priscillah Chigumba was conflicted as she was at one point spotted wearing a
scarf that has since last year been a trademark of President Mnangagwa, that
there was skewed media coverage and that the Voters Roll given to the applicant
was not the one used on the day of the elections.
On the election results, Advocate Mpofu’s arguments were
largely statistical and mathematical as he relied heavily on the so called
expert analysis from a Kenyan national who did the job for Raila Odinga in
challenging last year’s election results in his country.
Advocate Mpofu said out of the 60000 teachers who
participated in the electoral process as polling officers, about 20000 voted
and ZEC could not file affidavits of all those who opted to forgo their right
to vote.
He presented that there was a contrasting pattern of
results at adjacent polling stations, there were at least 16 polling stations
with identical results, some votes came from non-existent polling stations as
per the ZEC schedule of polling stations, and that the presidential and
parliamentary tallies created over 40700 votes for the presidential race.
He also said postal voting was not done in accordance with
the law, and emphasised that since ZEC has already changed the set of results
for about three times, it must then follow that the electoral commission has no
primary data to support those results.
Advocate Sylvester Hashiti, also representing Chamisa, said
the admission to errors by ZEC means that the whole process is compromised and
the election result should be set aside.
In response, President Mnangagwa’s representative, Advocate
Uriri said Chamisa has submitted a lot of unsubstantiated claims, adding that
Chamisa’s lawyers are relying on some ‘4th bundle of evidence,’ which has not
been placed before the court.
Advocate Uriri also argued that secondary evidence should
not be relied upon if primary evidence is available.
He also cited one statistical presentation by Chamisa’s
legal team and branded it fictitious, saying there is no evidence of the source
of the data presented.
On the voting patterns, Advocate Uriri dismissed the
theoretical proposition that people in the same geographical area should vote
in a consistent way, describing it as fallacy and absurd.
On the assisted voters claim, Advocate Uriri said the law allows
people to be assisted in voting by people of their choice, adding that there is
no evidence that the assisted voters were coerced to choose to be assisted.
On the allegations of intimidation of voters by village
heads, Advocate Thembinkosi Magwaliba, also for President Mnangagwa, said all
this is unsubstantiated as the village heads are not even named in Chamisa’s
submissions.
Advocate Magwaliba agreed that ZEC could have made errors,
but said even in US, change of figures in Bush vs Gore did not invalidate the
result.
This was the point also made by Advocate Tawanda Kanengoni,
representing three ZEC officials.
He said there have been ‘little and immaterial clerical
errors’ but said that does not change the declaration of the results as the
errors represent a mere 0.1% of the total votes.
Overly, Kanengoni said “the application before the court is
deficient of evidence and I pray that it is dismissed.”
He based all his arguments in that ZEC is the custodian of
the official figures and evidence as it administered the elections and has
filed v11 forms with the Constitutional Court, adding that the matter rests
with the applicant presenting enough evidence to substantiate all his claims.
On the high number of assisted voters, Advocate Kanengoni
said ZEC is not interested in finding out why that was so, but interested in
affording a voter who has indicated that they want to be assisted the right to
vote.
He dismissed the claim that there are some polling stations
where there was over-voting, saying v11 forms brought before the court show
that the over-voting claim is fake.
The lawyer also clarified that the voter turnout for the
presidential election was 85% contrary to the applicant’s claim that it was
72%.
On the scarf saga, Advocate Kanengoni said there is no
basis in concluding that ZEC Chairperson’s picture wearing a Zimbabwean scarf
means she supported the 1st respondent, as the picture was taken several months
before the nomination court set to approve candidates.
He concluded by saying that Chamisa’s court application
lacks merit and should be thrown out as his legal team does not want to rely on
primary data as evidenced by its failure to apply for a recount that is at law
permitted within 48 hours of declaration of results.
After the respondents’ submissions, Advocate Mpofu was then
given the right to reply.
He reiterated that since there is an admission of errors on
the part of ZEC, the real vote results cannot be accounted for, hence his call
for the ZEC announced results to be declared null and void. zbc
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