Con-Court throws out ‘late’ submissions

By Gift Phiri and Tendai Kamungira

Chief Justice Luke Malaba has declared that Build Zimbabwe Alliance leader Noah Manyika and Daniel Shumba of the United Democratic Alliance will not be allowed to make their presentations or submit their petitions.

Malaba reportedly cited the expiration of the deadline during a Case Management Conference held at his Chambers yesterday.

This means that any evidence that MDC Alliance leader Nelson Chamisa wanted to rely on and was not served on all respondents, including Zec, will now be inadmissible.

This potentially deals a body blow to Chamisa’s petition as significant chunks of the evidence were not served within this time-frame.

Shumba, who had compiled his evidence of vote rigging, fumed against the Con-Court decision, saying it was an attempt to muzzle respondents, which he said was unconstitutional.

“We don’t intend to be muzzled from our democratic and constitutional position. If anybody has issue with those who may wish to support the applicant, the only issue is to recuse themselves,” Shumba fumed.

Shumba and Manyika had filed their papers at the Constitutional Court, claiming the just-ended election was rigged in favour of Zanu PF leader, Emmerson Mnangagwa.

The Zimbabwe Electoral Commission (Zec) declared Mnangagwa as the winner with 50,8 percent of the vote, ahead of Chamisa, who got 44,3 percent.

In their failed applications, Manyika and Shumba, who had been cited by Chamisa as respondents, accused Zec of tilting the results in favour of Mnangagwa, who came into power last November with the assistance of the army.

In his response to the application, Shumba had said even though he was a respondent, he supported Chamisa’s application.

“As the applicant’s evidence has made clear, (Mr) Mnangagwa’s narrow margin of victory was the product of systematic manipulation of the voting numbers by the Zec.

“An analysis of the available voting data shows irregularities in the Zec’s own calculations. This manipulation of the voting results was the continuation of a pattern of irregularities that occurred before, during, and after election day.

“These irregularities denied Zimbabweans their right to free and fair elections. The election stands to be invalidated on that ground alone. These irregularities also materially affected the outcome.

“But for these irregularities, (Mr) Mnangagwa would have fallen far short of the 50 percent + one threshold required to avoid a runoff election. That, too, provides a basis to invalidate the elections,” Manyika said.

He said in the run-up to the elections, there were several irregularities that were raised with Zec but were never addressed until election day.

Manyika said these irregularities rendered the whole process invalid.

“An analysis of the Zec’s published results demonstrates that several polling stations were double-counted in computing the results. The expert affidavit prepared by Dr Otumba Ouko provides several examples of double-counting of polling stations in the Rushinga and Mbire constituencies. As a result of the double-counting, (Mr) Mnangagwa secured an additional 7 703 votes,” he said.

He said the presidential election results must be nullified by the court and an order for fresh elections must be put in place.

On Wednesday, Mnangagwa filed his opposing affidavits.

He, along with Zec chairperson Priscilla Chigumba have challenged Chamisa’s application, demanding its dismissal for lack of evidence.

In their affidavits filed separately, Mnangagwa and Chigumba argued that Chamisa’s application was out of time and must be dismissed on that basis.

“As both filing and service are constitutive of an application made in terms of Section 93 (1) of the Constitution as read with Rule 23 of the Constitutional Court Rules, the defective service effected on the 10th of August 2018 rendered the applicant’s application fatally and incurably defective,” Chigumba said.

Chigumba denied sharing voters’ information with Zanu PF following mobile phone messages that were sent to the electorate by Zanu PF candidates canvassing support.

She said the polling station returns were affixed at all polling stations established by the electoral body for the conduct of the 2018 elections. This comes after claims by the MDC Alliance that some results at 21 percent of the constituencies were not posted on the polling stations as is prescribed at law.

“Whilst it is correct that the presidential ballots are counted first, the transmission of results from a polling station by a presiding officer to the ward centre is done at the same time for all three electoral races under consideration i.e. the presidential ballots are counted first then we move on to the House of Assembly ballots and lastly, we count the local authority ballots. Only after all have been counted and their returns duly completed, does the presiding officer leave the polling station to take the results and the election residue to the ward centre,” she said.

She further said that in terms of the Electoral Act there was no requirement to announce the presidential election results for each constituency, adding that Chamisa’s election agents had unlimited access to the election results and were involved in the verification process.

Chigumba also said that the identical result pattern is not any evidence of election malpractice, further stating that there were no polling stations that disappeared on election day, as alleged.

“The computation by the applicant, based on a turnout of 72 percent, does not, therefore, yield a correct result reflective of what happened on election day. The 700 000 votes that the applicant alleges are unaccounted for are directly resultant upon the use of 72 percent as the final voter turnout in the presidential election and not the correct 85, 1 percent.

“Further, the figure that the applicant comes up wit, 4 032 000, as 72 percent of the total voter population includes, by necessary implication, every vote that would be cast in a presidential poll including votes that would, on the count, be deemed to be invalid for one reason or another. The figures he indicates as the total votes cast from the announced results 4 775 640 and from the data on the electoral commission’s CD, 4 774 878, both reflect the total valid votes cast in terms of the announcements and the data on the CD,” Chigumba said.

She urged the court to dismiss the application with costs.  DailyNews