As I promised, Zimbabwe here is my critic of the Constitutional petition filed by the MDC Alliance. Everything starts and falls on the founding affidavit. Before going into the substance of his application, let’s get the preliminary issues out of the way.

By LLoyd Msipa

His application literally trips and falls on the first hurdle. The citing of Emmerson Dambudzo Mnangagwa as the first respondent pretty much prepares us for what to expect in the rest of the document. Mnangagwa was a contestant just like all the other twenty-two contestants. He did not run the election. He is the beneficiary of a declaration made by the Zimbabwe Election Commission (ZEC). One would expect them to cite ZEC as the primary respondent.

In terms of the Constitution, the Zimbabwe electoral commission is the legally recognised entity that runs elections in Zimbabwe. It is, therefore, an expectation that an aggrieved party would primarily direct their petition to this institution and thereafter to other parties. Emmerson Mnangagwa can’t be the primary respondent on the grounds that he won the election.

The second preliminary issue that we need to discharge is the issue of citing the chairperson of the Zimbabwe electoral commission in her official capacity separate from ZEC. This is a malicious attempt to embarrass and discredit the chairperson in her personal capacity away from the institution of ZEC which houses other commissioners. It is a sordid attempt to isolate her because of the scarf incident.
Wearing of Scarf with National colours

At some point before her official appointment as ZEC chairperson, Priscilla Chigumba purchased and wore a scarf which is made up of national colours of the Zimbabwe flag. The surfacing of the scarf after she was appointed ZEC chairperson saw social media go into overdrive labelling the act as partisan merely because the State President uses the scarf in all activities, including government engagements. This scarf was used by the late former president Cannan Sondido Banana (MHSRIP) and also by the former president Robert Gabriel Mugabe in the 1980’s.

The label that it is a ZANU PF flag is a social media construct that should be dismissed with the contempt it deserves. The allegation by Chamisa associating the wearing of that scarf as symbolic of bias is ludicrous. The same scarf was worn by the current British Ambassador to Zimbabwe, Catriona Laing and former US Ambassador to Zimbabwe, Harry Thomas. Can we then say they were Zanu PF affiliates?

Now, let’s deal with the substantive issues as set out in his founding affidavit. Remember, we said that the application starts and falls on the founding affidavit. We now interrogate the substantive issues as set out in this document
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The Substantive Chamisa challenge

He says, in paragraph 4.1 of his founding affidavit, his challenge is of both the ‘result of the election and the declaration of the first respondent as the winner based on procedural and statistical/mathematical grounds. He then takes us back to background issues of things that happened prior to the elections which according to him have a material bearing on the election. We will indulge him and follow him.

Lack of Independence of the Zimbabwe Electoral Commission

Chamisa alleges the ZEC is not an independent commission, but he forgets that ZEC is a product of a multi-party parliamentary committee. ZEC as currently composed was appointed by a parliamentary committee of which he Nelson Chamisa was party too. All the commissioners went through a rigorous selection exercise with all political parties that constituted the GNU (Government of National Unity) at the time seconding members to ZEC. He refers to the twenty-third respondent who of course is Priscilla Chigumba as lacking ‘independence, transparency and accountability’. This the same judge whom the opposition praised when she was overturning demo bans in favour of the opposition when it was not popular to do so. This is the same judge who discharged the Evan Mawarire case when it unfashionable to work against the grain.

Failure of State media to comply with Section 61(4)

Section 61 speaks to the impartiality of the state media to all contestants. Nelson Chamisa alleges that the state media breached provisions of the constitution and in terms of the electoral act ZEC was supposed to call them to order and they refused to do so. ZEC as an institution has in place a media monitoring committee which was extremely active during this election. Letters were written to all presidential candidates offering them slots on state media to enable them to reach out to their supporters. Most didn’t take up these slots. The state media also offered slots for paid adverts to all political parties and it is no secret that the MDC alliance at the time didn’t have the money to take up these slots. The media monitoring committee also had extensive meetings with all newspaper publications, workshops on responsible reporting where held. Yes, there were publications pushing various narratives, but it is no secret that whilst ZEC urged responsible reporting, The Daily News and Newsday supported the MDC Alliance.

Provisions of seeds and fertiliser packs

In violation of section 136 of the electoral act, Chamisa alleges weeks prior to the election ‘gifts’ were given to induce people to vote for the incumbent in the form of fertiliser and seed packs. It is no secret that the government of Zimbabwe runs a command agriculture policy in the rural areas. These programs have been running for the last couple of years in which farmers, both small-scale and commercial are given incentives to help them increase production. This can be in the field of cattle ranching, tobacco farming to maize farming. This government program of empowerment is seen by Chamisa as buying votes. The question that it raises is how many of these people have complained that we have been bribed to give our vote. I am told Chamisa and his lawyers have managed to attach one or two sworn affidavits from people to this effect. There are two hundred and ten constituencies. They will need two hundred and ten sworn affidavits to convince the Constitutional Court. It is no good appending the affidavit of one person.

A presidential challenge, Parliament fine

Chamisa in his application is alleging that the distribution of food packs and seeds poisoned the electoral environment and hence the election was not free and fair. At the same time, he says he accepts the outcome of the National assembly elections and local government election. It is the presidential results he has a problem with. The same reasons he wants the presidential elections nullified surely should also apply to the national assembly and local government elections is it not. After all, it was a harmonised election. If the food packs and seeds poisoned the environment then the entire election is contaminated
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Intimidation and glaring mathematical errors

Nelson Chamisa also makes accusations of intimidation, gross inflation and deflation of figures at polling stations. To begin with, at any given polling station there would have been between ten to thirty people including observers and agents. I do not see how the intimidation would take place. The doors would close at 7PM and the counting would begin. The election officer would fill out V11 forms for election agents as well as V23 forms at the provincial collation centre. Everyone present signs confirming agreement with the tally, including election observers. Signing signifies acceptance of the count. All agents were given copies. ZESN was able to tally their figures and come up with the same figures ZEC has and a report because they had agents in all the eleven thousand polling stations. So, if Chamisa won, how did he win. Where is the nexus between what he is saying about the errors in mathematics and him getting the Constitutional Court to order that he became president?

Voters roll, ballot paper and Postal vote

Nelson Chamisa also alleges ZEC violated provisions in the electoral act, in particular, section 20(2) © that relates to voter’s role specifics, with ZEC failing to provide him with a voters roll that didn’t contain any biometric data on it, like photographs and fingerprints on it. He also complains of the violation of section 57(a) which relates to the ballot paper being ‘in the form prescribed’ and in alphabetical order. He also complains of a violation of section 73(2)(b)(ii) which is the provision relating to postal votes in the electoral act. He alleges that members of the police force were summoned by their commanding officers and ordered to vote in a particular way.

High Court Judgements in place

On these three grievances, the postal vote, the voter’s role and the ballot paper we have High Court Judgements that shot down the demands made by Chamisa from three separate courts. ZEC has the exclusive mandate to design the ballot paper as the Harare High Court confirmed in a judgement handed down by Justice Mangota The Postal vote judgement finding nothing untoward about the conduct the Zimbabwe Republic police handed by Justice Mwayera at Mutare High Court. The voter’s role matter was concluded in the Harare High Court presided over by Justice Zhou who upheld the privacy of the electorate. The citations are available on the JSC website. They have not been appealed against. They are binding. What is the applicant expecting the Constitutional Court to do?

By accepting the submissions made by Nelson Chamisa the Constitutional Court would be overturning the findings of the trial court using a procedure which does not involve a scrutiny of the proceedings and findings of the High Courts which have already dismissed the applicant’s arguments in these matters. That would be turning the law on its head vis a vis the legal principles which govern the relationship between a trial court and a superior court.

What is the Constitutional Court being asked to do

The Constitutional Court is being asked to conclude that the three High Court judges misdirected themselves in those three judgements. In order to do so, the Constitutional Court must be furnished with the records of proceedings of those three hearings. The question that arises then, is a petition against the outcome of the election the proper procedure for the highest court in the land to ventilate the findings of the High Court? I don’t think so.

Those judgements should have been properly appealed against in terms of the High Court rules. Further to this, an appeal would lie in the Supreme court. It would make better sense if the applicant was saying to the Constitutional Court, look, we have appealed against these judgements. Here are the grounds of appeal, please overturn the judgements and make findings in our favour on the submissions we make.
It is my submission that the Constitutional Court is bound by those High Court judgements until they are properly appealed against and set aside by the supreme court. Therefore, the submissions being made by the applicant are not properly before the Constitutional Court as prima facie evidence of procedural irregularities by ZEC and the Constitutional Court should disregard them.

Draft order defective

In his draft order, Nelson Chamisa seeks that the Constitutional court substitutes the victory of Emmerson Mnangagwa with his This is not a logical conclusion on the grounds in the petition. If the mathematical count is erroneous they should seek an order for a recount. If there were procedural irregularities i.e. the ballot paper, intimidation then the whole election not just the presidential should be nullified. It defies logic for him to suggest that only the presidential election was affected by the ‘partisan food aid’, interference by chiefs, biased media coverage. It makes no sense
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An announcement of results contrary to act

Chamisa also alleges that contrary to provisions in the electoral act, the chairperson delegated to the announcement of the presidential elections to commissioners. To begin with, the legal concept of an announcement is different from the general ‘zviziviso’ that we are used too. In legal parlance, it is called ‘Notice to the world’. The posting of V11 forms on the wall at polling stations is an announcement. The posting of V23 at constituency level is an announcement. There is no way that the electoral act would have contemplated an environment on television were the chairperson announces all two hundred and ten constituencies with her singular voice. The electoral act provides for the chairperson to make the declaration of who is elected not to read the entire presidential result. She made that declaration in fulfilment of the electoral act.

Conclusion

So why would a whole Lawyer, advocate for that matter ignore the basic procedural requirements of our law and seek to rely on issues that can not be properly be relied on as authorities for certain propositions? Simple. This application is not about the law. It’s not about ZEC, or its chairperson and elections officers. It’s not about the other poor twenty-one presidential contestations. It’s about personality. The cult mentality. The do or die mantra of the loser, Nelson Chamisa. It’s about grandstanding. It’s about being perceived as a biblical David pitted against a Goliath whose two-thirds majority Parliamentary victory has been accepted but surprisingly it was won under the very same conditions being complained against for the presidential plebiscite.
It is my considered view that the application is calculated and designed to stroke Chamisa’s ego and portray him as a victim of the odious Mnangagwa. He promised us that if he loses achaisa jecha musadza hatiridge. It is about revenge. If our election is deemed not free and fair we will continue to suffer for daring to go against him and his ambition. It is about greed. Lack of principle. Lack of vision. Political prostitution. Ultimately, it is about the lack of leadership mentality. A good statesman will put his people first. His country first before anything else. Chamisa chete chete. Jec