By Hopewell Chin’ono
A friend send me this Sunday Mail link and I laughed so hard because initially I thought that it was a spoof link, until I read the Sunday Mail hardcopy.
See: http://www.sundaymail.co.zw/chamisa-election-petition-was-late/
I will share my layman’s views on the issues raised in the Sunday Mail article.
The MDCA legitimately argue that this would be a political disaster if ZANUPF and ED were to follow this route where the Nelson Chamisa election petition is dismissed on time based technicalities.
ZANUPF is arguing that President Elect Emmerson Mnangagwa was not served the petition papers as a respondent and election candidate at the correct address and on time as is required by the law.
Some on the MDCA side are arguing that the seven-day prescription relates to filing the petition in court but not serving it to the respondents named in the petition.
However ZANUPF argues in the Sunday Mail story that the petition papers were served at the wrong address.
“As such, President-Elect Mnangagwa’s party wants the case dismissed before the merits of the opposition’s challenge are even considered,” the Sunday Mail reports.
ZANUPF senior members are arguing that Nelson Chamisa’s lawyers served the papers on the Attorney General. They argue that the Attorney General represents the President and state of Zimbabwe and not a ZANUPF candidate in an election.
They are also arguing that if Robert Mugabe had been President and Emmerson Mnangagwa was the ZANUPF presidential candidate in an election he goes on to win but is challenged, that would mean Mugabe remains President until Mnangagwa’s inauguration.
They argue that serving the Attorney General as initially happened would be tantamount to serving Robert Mugabe and yet Chamisa is challenging Mnangagwa’s victory.
So they conclude that effectively, the papers were served to the President and not to Emmerson Mnangagwa the candidate.
In my view these are legal arguments that would be resolved in a court of law as shall be done, but however, there couldn’t be a worse thing to happen to such a high profile case.
To many in the opposition, it will look like ZANUPF were hiding from confronting genuine rigging issues if they pursue this line of argument and won.
So even if they were to win this argument on the basis proffered in the Sunday Mail, it wouldn’t solve the political issue of legitimacy as the opposition would use that as a campaigning tool for throughout Mnangagwa’s five year term.
Chief Justice Luke Malaba is known to love these technical arguments, which he always upholds when he is presiding in court, as he shall be doing in this case.
A good example is the Promise Mkwananzi petition asking for Robert Mugabe to be declared as unfit for office in 2017.
Chief Justice Malaba said, “…the application is dismissed on the basis that the respondent (Robert Mugabe) was wrongly served with court papers.”
He continued, “…instead of the papers being served at his Munhumutapa offices, the papers were served at the New Government Complex and they were served out of time as required by law.”
Read: www.newsday.co.zw/2017/02/concourt-rejects-mugabe-unfit-case
MDCA supporters are arguing that in constitutional court cases, the standard is to serve papers to respondents within a reasonable period of time. It is refereed to as “timeously” but however judges have the discretion to interpret the law as they see it.
The Chief Justice has used these technicalities to throw out cases before. Ironically his biggest cheerleader on this issue and aspect of law has been non-other than Nelson Chamisa’s lawyer, Thabani Mpofu.
Therefore the Alliance lawyers representing Nelson Chamisa should have known that all that was needed on Mnangagwa’s end if he chose to do it was to evade service until after midnight of the last day and this is not difficult where papers are issued last minute as happened in this case.
However it looks like the President Elect did not evade service, the papers were simply served to the wrong address and eventually Mnangagwa got them at 10.30AM which ZANUPF is arguing was out of time.
The appropriate service postcode issue will depend on which address the President Elect used on his election nomination papers and it is unlikely that he would have used the Munhumutapa offices.
What is not in dispute is that he only got served the petition papers as a respondent yesterday at 10.30AM at his Munhumutapa offices.
ZANUPF is arguing that he used his Sherwood Farm in Kwekwe as the address for Emmerson Mnangagwa the candidate and as such, serving the papers at his government offices was a misplaced move on the part of Nelson Chamisa’s lawyers.
This argument was always going to be a low hanging fruit that any serious lawyer would have avoided by issuing the papers a day before in order to have enough time to re-serve them within the required time frame if need be.
As I said before, it is Nelson Chamisa’s lead lawyer Thabani Mpofu who has himself successfully used the ZANUPF argument before and even presented a paper justifying its use by judges on the basis that lawyers should familiarize themselves with the rules of the court.
At the last judicial colloquium in November, Thabani Mpofu argued in a paper he presented that judges would be within their rights and legal parameters if they threw out cases on technicalities because as he argued, lawyers should familiarize themselves with the court rules and regulations.
Procedural shortcomings can be sufficient to nullify a court claim on technical grounds.
It is a standard technique used by lawyers around the world.
From a court’s point of view, the procedural rules are there to set the playing field for all participants and judges don’t tend to appreciate lawyers who ‘overlook’ such requirements. They see it as wasting the court’s time when it has other cases, correctly lodged, to consider according to a former UK judge I spoke to about his issue.
Another interesting question is whether the court would proceed to hear the Nelson Chamisa/MDCA case if the papers were served on some of the respondents but not all of them.
However it would be very dramatic some will say, even for Chief Justice Luke Malaba to use such an argument in a high profile case like this one without going into its merits, they will argue that he is avoiding dealing with the merits of the case if it is only thrown out on the basis of that technicality.
But as they say in court, if both sides agree on the issue to be so, then that is the law.
The court of public opinion will argue that the Chief Justice and his colleagues did it because the arguments on the merits of the case were strong.
The court of public opinion might also argue that ZANUPF played dirty and it’s unfair to get away on such a technicality if indeed it comes to pass.
However the same court of public opinion must be conscious of what is at stake for both sides, ZANUPF wouldn’t care less as long as they retain power and they do so legally.
The Alliance lawyers in my view would have been shown to be sloppy if that indeed happened.
Instead of holding endless press conferences as they did, the lawyers should have been working on the petition papers to make sure that they are delivered at least two days before the seven day cut off period.
This would have allowed them enough time to resolve and avoid the unfolding legal arguments being pushed by ZANUPF.
So my view in short is that the optics of dismissing the MDCA petition on such a technicality would not cast the court or the President Elect in a favorable light given the centrality of the political issues involved.
On the other hand, MDCA, Nelson Chamisa and their lawyers wouldn’t come out of that scenario looking terribly clever. This might serve them just as well in the court of public opinion, as they would not have had to prove their claims. So a technical loss but a vox pox (people’s) win.
Invariably both legal teams would have prepared for the substantive arguments, the legal technicalities and the legal rebuttals.
But in cases where litigants are uncertain of their prospects, they will pull out all the stops.
Let us wait and see what happens!
Hopewell Chin’ono is an award winning Zimbabwean international Journalist and Documentary Filmmaker. He is a Harvard University Nieman Fellow and a CNN African Journalist of the year.
He is also a Fellow at the University of Oxford’s Africa leadership Institute. Hopewell has a new documentary film coming out which is looking at mental illness in Zimbabwe called State of Mind. Hopewell can be contacted at [email protected] or on twitter @daddyhope
