The Constitutional Court (ConCourt) yesterday declared Zanu PF leader Emmerson Mnangagwa as the duly elected President of Zimbabwe after making a determination that MDC Alliance leader Nelson Chamisa failed to provide the court with primary evidence to enable it to invalidate the declaration made by the Zimbabwe Electoral Commission (Zec).
The full ConCourt bench, led by Chief Justice Luke Malaba, delivered a unanimous determination following an application by the youthful MDC Alliance leader who sought to invalidate Mnangagwa’s appointment to the country’s top position on allegations of rigging.
In its judgment, whose reasons Justice Malaba said would be delivered in due course, the ConCourt said although Chamisa’s team of lawyers presented their case well, the evidence submitted was not sufficient to convince the court that the July 30, 2018 election was marred with irregularities that warranted the setting aside of the results.
“Applicant (Chamisa) made several generalised allegations against the Zimbabwe Electoral Commission and made startling allegations that there were several irregularities committed by Zec, but without providing primary evidence and Zec refuted with tangible evidence,” Justice Malaba said.
“The best evidence would have been the contents of the ballot boxes and primary evidence … these, coupled with what the applicant had, would have proved the alleged malpractices,” the judge said.
“It follows that when the results were declared, he [Chamisa] knew that he was an aggrieved candidate. It was then that he should have sought to obtain evidence from the election residue … applicant would have sought a recount within 48 hours and would have approached the Electoral Court to seek the unsealing of the ballot boxes … a recount of the votes or analysis of the sealed ballot boxes would have cleared the air but he chose not to exercise his right … ”
Justice Malaba further said if Chamisa had presented the V11 forms from his election agents, a sample analysis with the residue from sealed ballot boxes would have addressed a number of issues such as double-voting, debunked allegations of over-voting and established accuracies of results and data provided by the electoral commission.
The judge further said Chamisa’s team of lawyers was asked by the court why they did not seek to present the primary evidence from the ballot boxes, and their answer was “the election residue was a poisoned chalice”, but Zec maintained it had carried out its mandate above board.
“The onus to prove the case was with the applicant and what Zec did was to simply respond. Zec proved that the V11 forms presented by the applicant were fabricated and without access to the sealed boxes the allegations remained as refuted,” Justice Malaba said.
Turning to the issue of the 40 000 alleged disenfranchised voters — teachers, Justice Malaba said the allegations were too general and there was no evidence from Chamisa to substantiate his claim.
The judge said the electoral body gave evidence to the effect that some of the said teachers opted to be posted to other stations away from where they were registered to vote.
He further said there was no evidence of how many teachers were registered to vote and if they were, there was no evidence that they would have voted for Chamisa.
The court said it found that Chamisa failed to clearly and directly provide sufficient, credible evidence and “there was no proof of the happenings of the irregularities as a matter of fact … there is a presumption of validity of an election … it’s not for the court to decide an election, but it is the will of the people”.
Chamisa had petitioned the ConCourt arguing the electoral body did not conduct a proper election and alleged Mnangagwa’s declaration as the winner was coupled with several irregularities, including rigging and Zec’s shoddy job.
Chamisa’s lawyer Advocate Thabani Mpofu had further said the irregularities in the just-ended election process denied Zimbabweans their right to free, fair and transparent elections, adding on that basis, the election was invalid irrespective of the effect of the irregularities on the result.
In response to Chamisa’s application, Zec’s lawyer Tawanda Kanengoni, who was assisted by Charles Nyika, denied Mnangagwa rigged the elections, claiming Mpofu’s evidence of rigging was based on wrong analysis of the figures of the voter turnout percentage and the number of registered voters.
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