OPPOSITION MDC Alliance leader Nelson Chamisa reportedly
faced serious legal obstacles in mounting his Constitutional Court (ConCourt)
challenge against the presidential results last month, with fresh details
emerging that the ConCourt bench demanded a lot of supporting evidence, which
legally could not have been obtained within the given time-frame.
Chamisa’s lead lawyer Thabani Mpofu told NewsDay in an
exclusive interview at the weekend that his team avoided seeking a recount of
the votes because it was not the focus of their case and that it would have
been impossible to access the residue within seven days. He cited a 2013
Supreme Court case where he represented Chamisa’s chief election agent Jameson
Timba, who then had lost in the Mt Pleasant parliamentary election, but was
denied access to the ballot boxes.
“I represented Timba in 2013. What the Supreme Court upheld
was that if you want residue in harmonised elections, you have to cite everyone
involved — councillors to presidential candidates — because this involved
opening all the ballot boxes. So technically, it means you can’t get the
residue in seven days to challenge the results,” Mpofu said.
If Chamisa wanted to access election residue, he would have
had to serve, over 3 000 respondents 48 hours after announcement of the
results, get the residue and challenge the election results within seven days.
Chamisa had indicated to the ConCourt that he had
sufficient evidence, including V11 forms, whose tallies when added together,
gave him a little over 2,6 million votes, beating Mnangagwa by over 400 000
votes.
Mpofu said the V11 forms had been placed before the
ConCourt, but the Chief Justice Luke Malaba-led bench insisted on evidence
adduced from ballot papers and other electoral residue, which they ruled was
the only avenue to get substantial evidence to prove the rigging allegations.
“The exchange that I had with the judges was not about the
V11, it was about the residue and what it means was what was in the ballot
boxes. So when they were saying after the elections, if you decided that you
wanted to challenge, you should’ve opened all ballot boxes, you obviously know
that’s not possible. We had our V11 forms and presented them before the
courts,” he said.
Chamisa reportedly faced a hostile judicial system, where
his lawyers alleged that the deputy sheriff and registrar connived to ensure
that their case would collapse.
Said Mpofu: “We had an unco-operative and hostile system to
contend with, you know what the sheriffs did on instructions. You know the
complaint that we had with the registrar refusing to accept process. If you go
to court with a subpoena, nobody should ask you why you are issuing the
subpoena, it just should be issued. It is for the person who has been
subpoenaed to then object when they come before a court, so the subpoena must
be issued. The person must come to court, if there is an objection, they must
raise it. We cannot have a system which says to a litigant you can’t issue
legal process. One thing that is completely unacceptable, much the same way you
cannot have a system which says you instruct the sheriff to issue service and
he deliberately doesn’t do so, and he tells you he was ordered not to do so. He
had eight hours within which to effect service, and he completely refused. It’s
totally objectionable. So that is the kind of system that we had to come up
against, not only did we do our best.”
Mpofu added that their case also hinged on the Zimbabwe
Electoral Commission (Zec)’s server, but they could not access it because the
registrar refused to issue processes and Chief Justice Malaba had indicated
that he would not accept any court applications, leaving Chamisa’s case hanging
on the strength of Zec’s own admissions of its faulty election figures.
“So before the case, we had a case management meeting and
the Chief Justice had indicated that no application would be heard at courts on
the hearing day. If any application was heard, it would be dismissed. So
technically, when we went to court on that day, we had an option of making an
application to have the registrar compelled to issue the subpoena, but we knew
that it would be dismissed, because clearly that is what we had been told. So
we knew the state of that application and also we knew that it was clear that
the registrar had refused to issue the subpoena, which would’ve told the truth,
a truth which would have declared Chamisa as the winner,” he said.
Mpofu, whose eloquence failed to win the argument of the
day, said the case was strong and did not need residue back-up.
“So this issue that has gotten the country crazy about the
fulcrum and the pith, it comes in that context of saying that once you want to
show that he (Mnangagwa) did not win, that’s the fulcrum of the case and it
does not depend on the residue and I think you can see that. It depends on
Zec’s own numbers,” he said. MDC Alliance has since uploaded the evidence on
the Internet to prove that they had all the V11 forms and that they did not
challenge the poll result from the blues. Newsday
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