The Constitutional Court yesterday took MDC-Alliance leader Nelson Chamisa‘s lawyer Advocate Thabani Mpofu to task for trying to build a case on alleged secondary evidence while ignoring primary evidence and clear-cut court processes.
This would have required the opening of sealed ballot boxes for inspection of elections residue pertaining to the presidential election to assess if the allegations of rigging hold water.
Adv Mpofu, who also admitted his client’s application was filed out of time, had a torrid time trying to make a case on the back of secondary allegations before trying to appeal to the court’s mercies saying the hospitalisation of two of his kids had detracted from his preparation for court.
President Mnangagwa won the election with a 50, 8 percent according to results announced by the Zimbabwe Electoral Commission on August 3, before the figure was revised to 50.67 percent.
Mr Chamisa trailed with 44.3 percent in an election zanu-pf claimed two-thirds parliamentary majority.
In his submission, Adv Mpofu sought to nullify the elections on the basis of mathematical and statistical evidence and failed to bring original evidence to sustain his case, prompting Chief Justice Malaba to grill him over lack of seriousness.
Chief Justice Malaba noted that the evidence was not corroborated with original and credible documents.
He sought an explanation from Adv Mpofu why he was building the case on secondary evidence to challenging the victory of President Mnangagwa in last month’s harmonised elections, when primary evidence was available.
Asked the Chief Justice: “Why founding his case on secondary evidence when there is original and primary evidence?”
In his reply, Adv Mpofu said there was no need to refer to primary evidence when ZEC admitted the errors it had made three times over.
“It is up to ZEC to verify the figures that are based on figures verified from its data,” said Adv Mpofu.
He said his client could not rely on the ZEC data, which he described as a poisoned chalice.
Still not convinced with explanation given, Chief Justice Malaba hard-pressed Adv Mpofu to explain why he did not follow what the law allowed him to do.
“The law allows you to get original documents signed by the polling agents in the presence of observers.
“Why do you want us to discuss the matter on secondary evidence,” he asked, adding the primary evidence would have given him the opportunity to see whether statutory obligations were followed or not.
Adv Mpofu said the elections residue contained in the ballot boxes was of no use because it was manipulated after the election process.
Chief Justice Malaba said the court could not act on generality but acts on evidence and facts. He reminded Adv Mpofu that the law allowed him to ask for recount within 48 hours of the declaration, an avenue he also failed to take advantage of.
“We want to know the facts and make a decision. The court’s decision is not speculative,” said the Chief Justice.
The Chief Justice said it was important to follow the law and the lawyer knew this but chose to ignore the importance of the election residue.
Adv Mpofu also sought to rely on the EU report, which had been expunged from the record.
The court dismissed the document as of no use.
Advocate Lewis Uriri, arguing the case for President Mnangagwa, said there was no valid petition to warrant the setting aside of the election of President Mnangagwa to the highest office in the land.
“The numbers relied on are a lie,” he said. No evidence is before the court to substantiate the allegations that have been made.
“What carries the day in application of this nature is evidence that is admissible and credible.”
Adv Uriri said the allegations made against his client were of a criminal nature hence Mr Chamisa needed to prove his case beyond reasonable doubt.
“The evidence must be clear and in accordance with competent rules of analysis,” he said.
Adv Uriri said Chamisa’s petition lacked direct evidence as required by the law.
He said if Chamisa evidence suffered credibility crisis given the fact that documents sought to rely on were not original and admissible in court.
He said ZEC was the custodian of the election residue in terms of the law and Chamisa should have asked for recounting of votes within the prescribed 48 hours.
“Another remedy available was to approach the Electoral Court to unseal the election residue,”he said.
Adv Uriri cited a case in which it was ruled by the court that there were limited grounds a petitioner can be refused access to election returns.
Adv Thembinkosi Magwaliba also argued the matter.He insisted that the minor error on the figures as revised by ZEC could not warrant the court to nullify the elections in a petition lacking facts and improperly brought to court.
“The court needs full facts to make an informed decision,” he said. “The court has to rely on breaches that have empirical evidence.”
He urged the court to dismiss the petition for lack of merit. Responding to President Mnangagwa and ZEC arguments, Adv Mpofu insisted that the apex court should accept ZEC’ s figures.
In this regard he said President Mnangagwa cannot be declared the winner of the July 30 Presidential election.
Adv Mpofu also admitted to have not done well in one of the papers filed of record due to illness of his children and the limited time within which to prepare the answering affidavit and heads of argument.
In his petition Chamisa claimed electoral fraud and malpractices during the elections.
He wants the court to set aside President Mnangagwa victory, claiming that the official presidential results announced by the Zimbabwe Electoral Commission (ZEC) were not credible and declare his client winner or order a fresh election.
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