ZIMBABWE Electoral Commission (Zec) chairperson Justice
Priscilla Chigumbayesterday indicated that she was ready for a legal showdown
with MDC Alliance leader Nelson Chamisa, where she will shoot down the vote
rigging allegations levelled against her.
Chamisa, in his recent presidential petition to the
Constitutional Court (ConCourt), accused the Chigumba-led Zec of vote-rigging
in favour of Zanu PF candidate President-elect Emmerson Mnangagwa.
But Chigumba, in her response to Chamisa’s challenge, dismissed
as “unsubstantiated” claims that Zec rigged the July 30 polls in Mnangagwa’s
favour.
Chamisa approached the ConCourt last Friday, seeking to
challenge Mnangagwa’s election victory, citing massive vote-rigging. The matter
has been set down for hearing on August 22.
Chigumba accused Chamisa of failing to provide the
electoral body with relevant documents to enable her office to properly respond
to the application.
“Further still, the applicant’s (Chamisa’s) founding
affidavit refers, in several instances, to compact discs (CD) that are said to
be attached to the application. No such compact discs were served at the 23rd
respondent (Zec) offices either on August 10, or 11, 2018 … it is these absent
compact discs and separate bundle of evidence that the applicant avers contain
the source material used …” Chigumba said. In her founding affidavit through
her lawyers, Charles Nyika and Tawanda Kanengoni, Chigumba said the electoral
body followed due processes as provided for in the Electoral Act, especially on
issues relating to collation, verification and announcement of presidential
election results.
“The process as provided for in the electoral law relating
to collation, verification and announcement of presidential election results
was followed by the electoral commission as I have illustrated herein above.
Any mathematical error that may have occurred in the process is neither gross
nor sufficient to overturn the outcome of the presidential election and thus
cannot ground the vacation of the declaration I made in terms of section
110(3)(f)(ii) of the electoral Act,” she said.
“I have, in my (Chigumba) deposition thus far, shown that
not only were the original V11 and V23 forms used in the collation and
verification of presidential election results at the national command centre,
but also that the applicant (Chamisa)’s election agents were involved in that
process and were given, upon request, access to any V11 and V23 forms for
purposes of verification.”
Chigumba further claimed that Chamisa’s calculations
pertaining to the total voter population for purposes of the 2018 general
election were wrong.
“The applicant’s (Chamisa) calculations are wrong; the
total voter population for purposes of the 2018 general election was 5 695 936
and not 5 659 583 as indicated by the applicant. The previously announced
number before polling day had been 5 695 706, which figure was adjusted by the
addition of 230 voters who had been registered on a BVR kit in Chegutu,
Mashonaland West province, prior to the cut-off date for the 2018 general
election, but had not been uploaded into the database,” she said.
Turning to the opposition’s claims that there were over 700
000 unaccounted for votes, Chigumba said Chamisa had also gotten his
mathematical calculations wrong.
“… the 700 000 votes that the applicant alleges are
unaccounted for are directly resultant upon the use of 72% as the final voter
turnout in the presidential election and not the correct 85,1%. Furthermore,
the figure that the applicant comes up with, 4 032 000, as 72% of the total
voter population includes, by necessary implication, every vote that would be
cast in a presidential poll including votes that would, on the count, be deemed
to be invalid for one reason or another. The figures he indicates as the total
votes cast from the announced results, 4 775 640, and from the data on the
electoral commission’s CD, 4 774 878, both reflect the total valid votes cast
in terms of the announcements and the data on the CD,” Chigumba said.
“The 4 032 000 on the one hand and the 4 775 640 and 4 774
878 on the other are thus totals representing two different kinds of things the
former including every valid and invalid vote and the latter only the valid
votes. The applicant then proceeds to subtract, in turn, the two elements of
the latter category of votes from the former category of votes thus yielding in
each instance the 700 000 alleged unaccounted votes without taking account, in
that computation, of the difference between the two things he has subtracted
from each other.”
Chigumba also said the process of collation and
verification of the presidential results was done transparently, while
Chamisa’s agents, Morgen Komichi and Jameson Timba “had full access to the
results collation”.
“The collation of the results of some polling stations
twice was a data capture error whose extent has no material effect on the
results of the presidential election. After correction of the double entries
the first respondent (Mnangagwa) still meets the statutory thresholds of 50%
plus 1,” she said adding: “… the process of collation and verification of the
presidential results was done transparently, and the applicant’s agents Mr
Morgen Komichi and Jameson Timba had full access to the results collation at
the electoral commission’s national command centre.
“As already averred Mr Timba during this process, had
occasion to request V11 and V23 forms for several constituencies, he examined
those forms and made whatever notes he wished to make, he did not raise any
queries with respect to those V11 or V23s … the provisions of section 110 of
the Electoral Act are such that the absence of any candidate or his/her
election agent does not stop the process prescribed in that section from
proceeding to its conclusion.”
Commenting on the V11 and V23 forms impasse, Chigumba said
every political party had access to the forms as and when they requested for
them but castigated Chamisa for sourcing V11 forms information on social media.
“Applicant also alludes to having sourced the V11 forms
from social media, suffice to remind him that a v11 form is obtained through
the provision of section 64(1) (d1) of the Electoral Act. The authenticity of
his source of data is thus in doubt,” she said.
“As I have already averred, over the two day period, the
applicant’s agents had unlimited access to all the original V11 and V23 forms
relating to the presidential election and had the opportunity, at their
discretion, to make notes from those V11 and V23 forms or to raise any queries
with the electoral commission officials where they had problems with the
information that was on the V11 and V23s being used by the electoral commission
versus what they had through their own election agents from various polling
stations.
“Surely, if the applicant had polling agents at the
unidentified polling stations he alleges did not have returns affixed, those
agents would have been given V11 forms before the return for the polling
station is affixed in terms of the law. The applicant does not in this context
present his V11 forms and contends that the V11 forms that the electoral
commission has are different from what he has …”
The Zec boss further said Chamisa did not indicate at which
polling stations he alleges the election returns were not affixed and neither
did he explain as to whether he had polling agents stationed at such polling
stations, and if so, why no affidavits have been deposed to by such agents in
support of his averments that 21% of polling stations were not affixed in terms
of the law.
“Having made the allegations the applicant was enjoined to
prove it in his founding papers; he has failed to do so … the conclusion made
by the applicant, from this bare allegation, is that the electoral commission
rigged the presidential election with no evidence furnished and no explanation
given as to how the alleged rigging is said to have taken place,” she said.
“An application in motion proceedings ought to make out his
full case in his founding affidavit and if, as he has done herein, he makes
bald and unsubstantiated allegations, his application cannot possibly succeed.”
She urged the ConCourt to dismiss Chamisa’s application on
the basis that it had not been filed in terms of section 93 of the Constitution
as read with the ConCourt rules, 2016.
“No valid application has been filed by the applicant
challenging the election of the first respondent to the office of the President
of the Republic of Zimbabwe, in terms of section 93 of the Constitution as read
with the ConCourt rules, 2016,” the Zec chair said.
“In terms of section 93(1) of the Constitution, a challenge
to the validity of an election to the office of the President is instituted by
way of a petition or application lodged with the ConCourt within seven days
after the date of the declaration of the results of the election. Being a
period prescribed by statute, the seven-day provided by section 93(1) of the
Constitution are reckoned with the inclusion of Saturdays, Sundays and public
holidays. The time for lodging a petition in terms of section 93(1) thus
expired on the 10th of August 2018.”
“… Being peremptorily limited to the period of seven days
after the declaration of the result of the election, any filing and/or service
that is done outside that timeframe is, accordingly, invalid with the
correlative effect of rendering the entire application fatally and incurably
defective.”
Commenting on the alleged disappearance of polling stations
on the polling date, Chigumba said: “No polling station disappeared on the
polling day. The applicant does not state the names of the polling stations
that he alleges to have disappeared on the polling day. No polling stations
were created on the polling day. 1HRDC and 2HRDC that the applicant cites as
examples of created polling stations are in fact not polling stations. The
former stands for ward 1 Hurungwe Rural District Council and the latter stands
for ward 2 Hurungwe Rural District Council.” Newsday
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