Wednesday 22 August 2018


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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