Judgment will be handed down tomorrow afternoon.
Chamisa petitioned the ConCourt, arguing the Zimbabwe Electoral Commission (Zec) did not conduct a proper election, alleging Mnangagwa’s declaration as the winner of the election was marred by several irregularities, chief among them rigging and shoddy handling of the process by Zec.
The youthful MDC Alliance leader, who was represented by advocates Thabani Mpofu and Sylvester Hashiti, submitted before a nine-member bench led by Chief Justice Luke Malaba that the electoral body failed to professionally carry out its mandate as evidenced by the changing of electoral results on three occasions.
The lawyers said as a result of Zec’s conduct, it was not possible for the election to be deemed credible and reliable since several issues had not been properly handled by the electoral body.
“The Zimbabwe Electoral Commission (Zec) announced that Mnangagwa had won the presidential election with 50,8% of the vote. Mnangagwa’s margin of victory was barely over the 50% + 1 [vote] threshold required to avoid a run-off election. According to the announced results, which soon changed, he avoided a run-off by a mere 37 306 votes,” Mpofu submitted.
“Zec now admits that there were patent errors in the results. It subsequently published revised results, without explanation. The published results reduced Mnangagwa’s margin of victory to 50,65%, or just 31 830 votes over the threshold.
“The published results contain further irregularities and miscalculations, most of which are now admitted by Zec. These include the double-counting of polling stations, the duplication of results, and the inflation of votes. All of these irregularities favoured Mnangagwa, helping to push him clear of the 50%+1 [vote] threshold.”
Mpofu 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 is invalid irrespective of the effect of the irregularities on the result.
“The evidence shows that the irregularities did, in fact, materially affect the election result. But for these irregularities, Mnangagwa would, at the very least, have fallen far short of the 50%+1 [vote] threshold. This provides a separate basis to set aside the election,” he said.
Mpofu, however, was later subjected to intense interrogation by the full bench, asking him to explain why and how his client had sought to rely on secondary evidence to present before the court as opposed to the primary evidence, which could be obtained through the opening of the ballot boxes.
“We are interested in knowing why the applicant did not seek to do what the law required him to do, the residue of the original documents containing the names of the polling stations and the polling agents and the figures obtained are contained on the V11 forms which were sealed in the presence of the observers and the poling agents? Why did the applicant not seek to open the ballot boxes and resolve the matter by presenting primary evidence?” the Chief Justice asked, to which Mpofu replied: “There was a massive cover-up by distorting of the evidence by Zec. We did not want to drink from the poison contained in the ballot boxes.”
“There is evidence of manipulation of results by the Zec process and the applicant could not seek to open the residue already manipulated,” Mpofu said, to which the Chief Justice insisted the court was “ready to drink the said poison” and make a determination based on primary evidence”.
Justice Malaba further said: “If the residue in the ballot boxes would not be accepted that they were sealed in the presence of observers, polling agents and relevant people, why were they not? That is what we would want to hear explained.”
Turning to the V11 forms that were allegedly not posted at some polling stations, Mpofu said even the European Union observer mission noted the irregularity and commented on the issue in their report, but the Chief Justice was not impressed by his submission.
“Which polling station did the EU observers visit and make that finding? We are a court of law, we act on proof of facts. Where and which stations do they say they visited and noticed that the V11 forms were completed and not posted? We only hear of bald assertions, but we are not told of the facts, what are they talking about?” Justice Malaba asked.
In response to Chamisa’s application, Zec’s lawyer Tawanda Kanengoni denied his client 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.
Kanengoni, who was assisted by Charles Nyika, said the changes on the Zec results were immaterial because they did not change the declaration made of who won the presidential election.
He justified the three changes on the Zec results after the July 30 polls, saying as a respondent in the matter, the commission had to test its own data to see if it “stands up”.
He said Zec discovered during the testing of the data that it, indeed, stood up and had some few insignificant clerical errors of 0,1% that had no effect to the declaration made on August 2, 2018.
“We discovered some few and minor clerical errors of about 0, 1%. Zec was not changing results, but was responding to the petition filed by the applicant (Chamisa),” Kanengoni said.
“In the process, this is where these minor clerical mistakes were discovered, which were minor to change the declaration made.”
Kanengoni said the evidence on the V11 forms presented by the commission, debunked claims by Chamisa that the elections were rigged, but Mpofu argued that the constant change of results where enough grounds to justify the setting aside of the results.
On the issue of the large number of assisted voters, Kanengoni said “peremptory dictates of the law do not allow Zec to ask people why they elected to be assisted to vote”.
Furthermore, Kanengoni said Chamisa had failed to explain how “assisted voters” prejudiced him, saying “the point is not linked to votes and there was no evidence from any voters claiming of having been coerced to be assisted to vote”.
On the issue of unpopulated V11 forms, Kanengoni described Chamisa’s presentation of facts on the matter as mischievous, accusing some people of pulling out supplementary attachments, leaving out the populated V11 forms which had no details, but signatures of the polling agents.
He also defended the uniform voting pattern at about 16 constituencies, saying it was no longer a probability because the Zec V11 forms confirmed that such a thing, indeed, happened.
Kanengoni justified the suspicious high voter turnout in Mashonaland Central and Masvingo, claiming it was not for Zec to describe how humans behave in relation to the voting patterns.
Mnangagwa’s lawyer, Advocate Lewis Uriri, also argued that Chamisa’s case was improperly before the court and urged the court to dismiss it.
He challenged why Chamisa decided not to use primary evidence in the form of election residues, which he described as the best available evidence, opting to use secondary evidence instead.
“The applicant did not want to use the election residue because he knows it will disapprove him,” Uriri said.
“Election residue is the only admissible evidence that is presented by Zec,” he said, challenging the statistics presented by Mpofu as “merely plucked from the air” with questionable integrity and sources.
“Some of figures are of mysterious origins. He (Chamisa) relates to sample-based extrapolations predicated on behavioural patterns that have no scientific precision. He makes inconclusive findings as regards the possible causes of the alleged variances and anomalies. His evidence is not proof beyond reasonable doubt,” Uriri said.
Uriri pleaded with the court to dismiss Chamisa’s application, arguing that the necessary jurisdictional facts to trigger section 93(3) of a constitutional inquiry had not been established.
Uriri did not deny that Zec figures were changed, arguing it did not matter because it did not change the declaration of Mnangagwa as the winner of the July 30 polls.
Mnangagwa’s other lawyer, Thembinkosi Magwaliba, said Chamisa’s case should be dismissed “because there was nothing valid before the court”.
On the 40 000 disenfranchised civil servants, Magwaliba said there was no evidence that they would have voted for any one of the two candidates and whether they were registered voters.