The government employed a cocktail of crippling measures which severely weakened MDC Alliance leader Nelson Chamisa’s Constitutional Court (ConCourt) case in which he is challenging President-elect Emmerson Mnangagwa’s slim electoral victory, including denying his South African legal team practising certificates shortly before the matter kicked off, throwing it completely off balance.
Chamisa alleges that Mnangagwa, who was declared winner of the July 30 presidential election with a wafer-thin 50,8% of the total vote, was the beneficiary of a calculated vote rigging mechanism by the Zimbabwe Electoral Commission (Zec).
Commentators noted that the government’s refusal to grant temporary practising certificates to Chamisa’s South African lawyers, coupled with the highly inquisitorial approach of the nine-member ConCourt bench led by Chief Justice Luke Malaba, appeared to reinforce widely-held perceptions that there was no level playing field in the justice system.
Across the length and breadth of the country, people discussed the court’s adversarial approach against Chamisa’s lawyer Thabani Mpofu, with some saying it was overly aggressive and even bordered on hostility. Lawyers representing Zec and Zanu-PF were not subjected to the same level of grilling, it was noted.
The judges repeatedly pressed Mpofu to produce what they termed “primary evidence” in the form of electoral residue such as V11 and V23 forms without which they said his case would not meet the evidentiary dictates of such an election petition. In any case, the court said, such evidence should have been attached to the founding affidavits on application and any other documents adduced thereafter would be deemed inadmissible.
Malaba struck off affidavits supporting Chamisa’s petition, saying the respondents should have filed separate petitions challenging the election outcome.
The court is set to make a ruling today and, in the event that a winner is confirmed, inauguration is likely to take place on Sunday in accordance with a constitutional stipulation that the investiture take place within 48 hours of a declaration of the winner by the ConCourt.
Justice minister Ziyambi Ziyambi denied Chamisa’s South African advocates Dali Mpofu, Jeremy Gauntlett and Tembeka Ngcukaitobi practising certificates, claiming the neighbouring country did not pass the test of reciprocity as outlined in the Legal Practitioners Act.
The law stipulates that lawyers residing outside the country but willing to represent a client in Zimbabwe for a specific case ought to obtain a certificate of exemption.
The Zimbabwe Independent has established that the South African lawyers had prepared their arguments to corroborate lead attorney Thabani Mpofu’s verbal submissions, but were reduced to helpless bystanders upon being denied the certificates.
Thabani Mpofu was assisted by top Harare lawyer Sylvester Hashiti and three other local attorneys.
This forced Thabani Mpofu to improvise and deviate from the original plan, disregarding the long hours they had invested in preparing for the case with his South African colleagues.
The South African lawyers had, in fact, been denied entry into the courtroom, but were only allowed in later as bit-part counsel.
During the court proceedings, Thabani Mpofu endured long periods of grilling from the nine ConCourt judges pressing him to prove allegations of electoral fraud which Chamisa levelled against Mnangagwa and Zec and did not have the benefit of joint oral submissions with his South African colleagues as had been planned.
An urgent chamber application which sought relief for the team of legal experts was also thrown out.
Dali Mpofu, the most senior of the three expatriates, confirmed the predicament to the Independent.
“The client had already expressed his choice as to which one of us should be making submissions and we had divided up the arguments. My colleague here (Tembeka Ngcukaitobi) was going to deal with a certain section; I was going to deal with another and Advocate Mpofu as well. So it does obviously affect that planning. It becomes clear that the plan is not going to work. Until last night (Tuesday) we didn’t sleep, preparing on the basis that perhaps this morning that sanity would prevail, but unfortunately that did not happen,” Dali Mpofu said.
“Even this morning (Wednesday), it was made clear that as far as the court was concerned everything was ready but the politicians chose not to grant us,” he said, describing Ziyambi’s decision to deny Chamisa legal representation of his choice as a travesty of justice.
“Our colleague Thabani Mpofu did an amazing job under the circumstances. He was able to improvise from our original plan. We are quite satisfied, this is not actually a difficult case. It is an important case because of the significance but, as far as the legal issues are concerned, it is a simple case,” he said. “If we had had time, we could have raised it in a separate court application. But the prejudice is not ours; we are just professionals doing our work. The prejudice is for the client who is being denied representation of his choice.”
The Independent also established that one of the three lawyers, Gauntlett, actually had all his papers in order but was still not permitted to represent Chamisa.
Chamisa’s spokesperson, Nkululeko Sibanda, said Zanu-PF had attempted to sabotage the MDC Alliance’s chances of winning the case.
“Obviously Zanu-PF would like to try by all means to frustrate us. This is an attempt to frustrate President Nelson Chamisa’s chances of getting befitting legal representation and to the best of our ability he is getting enough representation,” he said.
It also emerged from documents seen by the Independent yesterday that the MDC Alliance made a last-ditch attempt to subpoena Zec to bring to court information on its server, as Chamisa’s lawyers sought to solidify their case.
Chamisa’s lawyers also sought an urgent meeting with Malaba on Tuesday, but the chief justice turned down the request, saying since the trial date had already been set, time for such meetings had lapsed.
The lawyers had not raised the issue in their founding affidavits and had also not highlighted them during the pre-trial meetings held last week.
Documents show that MDC Alliance lawyers Atherstone and Cook on Monday sought a court order compelling Zec to bring the material from its servers.
“You are required and directed to attend before the Constitutional Court of Zimbabwe at Harare on Wednesday, the 22nd August 23, 2018 at the hour of 10 o’clock in the forenoon, and so from day today until the above case is tried, to give evidence on behalf of the plaintiff and also to bring with you and produce all details of the Zec server from the 30th of July 2018 to the 3rd of July 2018,” reads the order, which was sought by the alliance lawyers dated August 20, 2018.
On the same day, the registrar of the ConCourt, Anita Tshuma, wrote back to Chamisa’s lawyers advising them that the court could not accept the subpoena.
“Kindly note that we are unable to accept the subpoena duces tectum (court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial) in question since there is no provision for its issuance in the pre-trial conference order issued by the Honourable Chief Justice on 16 August, 2018,” reads the letter.
The lawyers immediately wrote back to the ConCourt, requesting a meeting with Malaba.
“We have seen the letter by the chief registrar concerning the subpoena we issued. Pursuant to our previous correspondence, we contend that it is still an issue to be dealt with by the chief justice and we kindly request audience with him,” the lawyers wrote.
Malaba turned down their request on Tuesday.
“We placed the letter before the Honourable Chief Justice who advised that he is no longer meeting any lawyers and that if there are issues, they should be raised in court,” Tshuma wrote.
This comes as it also emerged that Chamisa, sensing that the state was bent on derailing his challenge, adroitly altered his earlier pleading from seeking to be declared an outright winner to seeking a presidential election run-off.
He then reached out to three other losing presidential candidates, Elton Mangoma, Noah Manyika and Daniel Shumba, whom he had cited among respondents to back his application for the invalidation of the presidential election in favour of a run-off.
There was an agreement that Mangoma, Manyika and Shumba would throw their weight behind Chamisa in the event of a run-off and, in return, Chamisa had promised to reward them with senior appointments in his government, in the event he prevailed.
Sources within the legal fraternity say the relief sought by Chamisa from court to be declared the outright winner was a ruse to convince the court to declare a run-off election.
“It is almost clear that there was no outright winner in the first round of the election. Neither Mnangagwa nor Chamisa garnered the required 50% plus one vote to be declared an outright winner,” a source from the Coalition of Democracy (Code) led by Mangoma said.
“Chamisa’s real plan was to get a ruling calling for a run-off. This was supported by various respondents who were supporting his petition challenge.”
The plan also fell through after the court refused to entertain the trio, arguing they could not support another presidential candidate after they had been cited as respondents.
The court ruled that they could have filed their own separate papers challenging the results or a joinder with Chamisa.
However, Manyika and Mangoma reiterated yesterday that they had supported Chamisa out of principle.
“I did my submissions out of principle. Everything else is not accurate,” Mangoma said.
Manyika said: “I have no arrangement with anyone. I am not looking for a job.”
During the court hearing, which lasted nearly seven hours, the bench insisted on Chamisa’s legal team to furnish the court with substantial evidence to corroborate allegations of massive electoral fraud.
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