By Itayi Garande
The MDC-Alliance presidential candidate Nelson Chamisa on Friday August 10, 2018 filed Constitutional Challenge Case No CCZ 42/ 2018, disputing the presidential election results announced by the Zimbabwe Electoral Commission (ZEC) which declared Emmerson Dambudzo Mnangagwa duly elected President of Zimbabwe.
I have read the petition in its entirety and I present my legal opinions below.
Election disputes are inherent to elections. Challenging an election, its conduct or its results, should not be perceived as a reflection of weakness, but proof of the strength, vitality and openness of the political system. The right to vote would be merely abstract if the right to sue to enforce it was not guaranteed in law.
However, the law is framed at both a procedural and substantive level precisely so as to discourage the bringing of election challenges, also called petitions.
This is because challenges to election results are more than just private disputes. They are of significant public importance. So they are very serious as they have the potential to undermine the democratic process that allows them in the first place, if they are used for political purposes.
Petitions are, at the same time, also normally heard at the same time as an associated police investigation to establish whether an offence was committed. That means that they may lead to prosecution.
In Zimbabwe, election results may be challenged by a candidate or a voter by issuing legal proceedings. Zimbabwe’s constitutional challenge system compares well with internationally recognised standards for challenging elections. It is accessible and transparent.
However, the system does not provide a right of appeal, so it is important to ensure that it is done properly.
In Zimbabwe, the Constitutional Court has wide powers under Section 93 of the Constitution. In terms of Section 93(4), the Constitutional Court may declare a winner; invalidate the election, in which case a fresh election must be held within 60 days after the determination; or make any other order it considers just and appropriate (for example call for a recount or rerun of the election or parts of it).
Given this background, it is important to take seriously the challenge submitted by Chamisa as the MDC-Alliance presidential candidate. I will start with clerical issues, then consider the legal arguments advanced, then finally I will attempt to interrogate the evidence submitted.
Mistakes in the petition
There are some clerical mistakes that were made by the applicant. While clerical mistakes can render the petition incurably defective, the court may allow amendments to be made, but if time has lapsed, the court has no jurisdiction to extend time limited by statute to allow such amendments.
Mistakes in people’s names, for example, can have severe consequences as the service of papers would be irregular. Service should be done in the full legal name of the respondent at the address registered with ZEC, in accordance with the law. Certain rules apply in relation to the President, the Vice President and members of Cabinet.
Out of the 25 respondents named by Chamisa, only seven have their names correctly cited. Errors include missing middle names, incorrect spellings of names and sometimes completely wrong names cited.
Examples include Joseph Makamba Busha, who is cited in parts as “Joseph Buusha” and Willard Tawonezvi Mugadza, who is cited as “William Mugadza”, Everisto Chikanga, whose name is incorrectly spelt as “Evaristo” and Emmerson Dambudzo Mnangagwa, whose last name is misspelt as “Mnangwagwa” on various sections of the petition, including affidavits.
Over eight respondents had their middle names missing, despite the fact that they were correctly cited on ZEC’s ballot paper. Another clerical mistake was that Chamisa left the filing of the petition late, so any service of documents to each respondent was subsequently late.
By close of business on Friday August 10, Chamisa’s agents were still at the Constitutional Court processing the paperwork. The Sheriff of the High Court of Zimbabwe, therefore, did not have sufficient time to serve the papers to each respondent in time. This is a requirement of the law.
Emmerson Mnangagwa, for example, was served papers on August 11 2018, a day after the deadline. This was irregular and he can mount a challenge as to the validity of the constitutional challenge. However, judges may or may not see this as a serious breach that warrants throwing the petition out.
There is no explanation as to why there were 25 respondents in the petition as only four are mentioned in the petition itself. There is no reference to any of the other 21. Other clerical errors include citing ZEC officials by their professional titles on the face of the petition, but referring to them in the petition by their names.
For example the 24th respondent is cited as “The Chairperson of the Electoral Commission” and the 25th respondent as “The Chief Executive Officer of the Electoral Commission”, but referred by their legal names in the rest of the petition. The word “Zimbabwe” is also missing from the official name of the commission.
While sometimes this is not enough to get the petition dismissed, when you get the name of a respondent completely wrong legally, for example “William Mugadza”, you cannot expect the court to infer that this is Dr Willard Mugadza of the Bethel Christian Party.
You also risk making an irregular service of legal papers. ZEC has the full names on its website. The applicant should have verified these from there.
There are many other clerical issues relating to failure to insert page numbers, not correctly numbering sections, spelling and grammatical mistakes and others.
These may seem minor, but to judges such drafting problems may delay judgments, especially where the court has only 14 days to make a ruling on such an important issue. Grammatical mistakes at law may affect the legal arguments advanced.
The other “mistake” that Chamisa made was to fail to demand a recount in the offending polling stations within 48 hours of the final announcement on August 3 to prove that the results were wrong, under Section 67A(1) of the Electoral Act (Chapter 2:13).
This section which deals with recounting of votes states that: “Within forty-eight hours after a constituency elections officer has declared a candidate to be duly elected in terms of Section 66(1), any political party or candidate that contested the election in the ward or constituency concerned may request the commission to conduct a recount of votes in one or more of the polling stations in the ward or constituency.
The MDC-Alliance did not make use of that provision, yet their main claim in the petition is that 21 percent of polling stations had problems. They, however, held a Press conference instead, claiming to have won the presidential poll. This had no legal effect.
Election petitions should be precise and not based on political statements, conjecture and unfounded allegations and speculation. The court works on a presumption of validity or starts from the premise that results published by ZEC were valid (Tsvangirai v Mugabe, 2008).
In the petition, Chamisa will have to provide evidence that the result announced by ZEC was invalid. This is what he has to prove and the standard of proof expected will be high.
Chamisa will have to bring evidence which will “materially affect the validity of the election”.
The grounds for the petition must be “clearly and precisely pleaded to bring out the alleged invalidity of the election and its basis”.
In the 2008 case cited above, the judge concluded that, “The court is not to concern itself with isolated grievances which have no effect on the validity of the election”.
There are many inconsistencies in Chamisa’s petition. For example in Clause 4.5.32 he states: “ . . . my agents were not notified of the date and place of verification.”
However, in 5.1, he states that on the “1st of August 2018, 23rd respondent (ZEC) started what it called a verification process and which it asked Komichi and Timba to witness”.
It has to be noted that this is not a legal requirement that candidates’ agents should be present at this verification process. Electoral Act (Chapter 2:13) Sections 110(3)(c) to (e) state that they merely have to be notified of the time and place and given an opportunity to be present. ZEC claims that it did this.
That being said, the order that Chamisa seeks, that is to be declared the winner by ZEC is possible constitutionally, but requires a very high standard of proof.
So the court may declare the order difficult to execute, given the quality of evidence that Chamisa has provided.
He has provided sworn affidavits from well-known MDC-T officials only and not any impartial parties.
He also discredits the whole election process in his petition, but seeks to be declared winner in that flawed process. If the court accepts that there were irregularities in the electoral process, then the whole harmonised election will have to be re-run, not just the presidential vote; or a recount will be ordered.
Chamisa has dismissed a recount. He, alternatively, wants a re-run of the election within 60 days, if the court does not declare him a winner. It is not clear why he does not want a recount or a re-run of the parliamentary and local elections. In addition, he wants ZEC to pay for legal costs of his petition.
That is impossible. ZEC is not the only respondent in his petition.
Chamisa can challenge the election by showing that V.11 and V.23 forms were altered. A V.11 form is an original document carrying results from a polling station and is signed by agents of all contesting parties. After signing, the data is recorded on a V.23 form and then forwarded to the ZEC National Command Centre.
Chamisa’s claims that V.11 and V.23 data was altered when entered on Excel spreadsheets at ZEC and the results announced were different from what ZEC had on the forms. Chamisa will have to prove that the V.11 forms he has, which were signed at polling stations, are different from the ones that ZEC has. However, he has relied on ZEC data, not MDC-Alliance data to challenge ZEC results.
So it can be concluded that his claim that he won 2,6 million votes against Mnangagwa’s 2,08 million is not based on any evidence collected by his party, but on conjecture. The sworn affidavits by two statisticians, one from Kenya and another from Zimbabwe, use the data supplied by ZEC despite claims by the MDC-Alliance that they had their own V.11 forms.
The petition also alleges that there were no V.11 forms in 21 percent of the polling stations (Sections 4.5.24 – 4.5.26). Chamisa does not explain how he obtained this figure and does not provide that evidence in the petition.
ZEC has provided reports for all polling stations. In fact, the figure seems to have been obtained from a Zimbabwe Election Support Network (ZESN) report. ZESN had not seen the V.11s outside polling stations, but it was not evidence that they did not exist.
Ironically, ZESN subsequently released a report endorsing the presidential election results released by ZEC, with Mnangagwa emerging victorious.
The report was titled “Presidential Results Projection from Sample-Based Observation”.
It noted as one of its key findings on election day: “At 98 percent of polling stations, all polling agents present were given an official copy of the V11 results form and/or the official results were immediately posted. At only 2 percent of polling stations were official copies of the V11 results form not provided to all polling agents and the official results not immediately posted.”
In one of the media addresses, Chamisa incorrectly said even if the 21 percent of polling stations was not factored in, he would have won the presidential election anyway. This is not correct.
This percentage represents 2,300 polling stations and almost 1,2 million voters. To say that figure will not swing an election is incorrect.
Clause 7.2 of Chamisa’s petition is in contradiction to Clause 6.4.5. In the former, Chamisa claims that 4 032 000 people voted. Yet in the later clause he claims that “my tally of votes is 2 674 032 as against 2 008 639 for the first respondent”. This gives us a total of 4 682 671, excluding the votes for the other 21 presidential candidates and all the spoiled ballots.
There is an admission in Clause 6.6.3 entitled “No voters roll” that the voters’ roll which was used by Chamisa for his calculations in the petition is not the same one that ZEC used. This means that Chamisa’s source documents are wrong and, therefore, his calculations cannot be relied on.
ZEC is the custodian of the voters’ roll which has to be used as the source document. It seems all the other presidential candidates had the correct voters’ roll, but not Chamisa. This, in any case, is not valid evidence that the election was rigged in favour of Mnangagwa.
In Clause 6.5.5 Chamisa makes the claim that Mashonaland Central had 105 000 votes by 5.30pm, which rose to 440 000 by 7pm. However, he does not reveal that in Harare, where he won resoundingly, the figures were 451 000 at 5.30pm and by 7.30pm had risen to 720 000. The same scenario is repeated in Manicaland Province, which means there may have been problems with administration. Chamisa’s claims are, therefore, simply estimates and not final figures.
Postal voting and ballot paper concerns
The postal voting issue that Chamisa is challenging (Clause 6.6.1) was settled by Mutare High Court judge Justice Hlekani Mwayera.
This makes their affidavit invalid as the court has already ruled on the matter. Judge Mwayera said MDC-Alliance failed to prove that the postal ballot process used by the Zimbabwe Republic Police at Ross Camp in Bulawayo had violated the secrecy of the vote. There was inadequate evidence to show that police officers had voted while being watched by their commanders.
The presidential ballot paper challenge in Chamisa’s petition (Clauses 4.5: 20-23) is also a settled matter. The challenge by Tendai Biti’s People’s Democratic Party was dismissed in a High Court judgment by Justice Mangota a week before the election for lack of merit.
It is, therefore, clear that Chamisa is challenging these judgments through the Constitutional Court without stating so. Courts do not take lightly to such “smuggling in” of cases.
Another claim that Chamisa makes in Clauses 6.5.8 and 6.5.9 is that civil servants who did not vote were going to vote for him. This is not fact, neither is it evidence of rigging. There is also an implied suggestion that those civil servants were compelled to become polling officers by Zanu-PF.
Chamisa will have to prove this as the role was voluntary and those who wanted to remain in their wards could do so. ZEC assisted all civil servants who were acting as presiding officers to vote. There was a High Court order to that effect after an application by the Amalgamated Rural Teachers Union of Zimbabwe (Artuz).
The evidence that Chamisa presented in his petition is mainly affidavits of MDC-Alliance members. The veracity of this evidence is questionable. For instance, one of the affidavits is by Ralph Tawanda Magunje. In Section 1.2 of his affidavit, he claims that Chamisa was winning when they started counting votes, then suddenly some ballots were brought in.
In Section 1.3, he says “I was in the area, I was a contestant”. He does not mention the polling station in question in Hurungwe or where he was a contestant. In the affidavit, he also does not state that he is the party’s Mashonaland West provincial chairperson. Omitting such an important piece of information is viewed as deceptive by the courts, especially in a sworn affidavit. It also makes this evidence defective and cannot be relied on as proof of rigging. It is too conjectural.
The issue of ZEC servers
Chamisa says he had no access to ZEC servers and also wanted access to inspect the work of data entry clerks at ZEC who were punching V.11/V.23 data onto Excel spreadsheets for further statistical analyses.
Chamisa already had the V.11 forms and V.23 forms, so he could have instructed his party to do their own statistical analyses. If he did not have them, how then could he claim that he had won the election a day after polling? There is also no legal requirement for ZEC to involve political parties in its administrative work.
Entering data onto servers would not change the result. Access to the ZEC servers demanded by Chamisa compromises the security and integrity of data. In any case, ZEC server outputs would serve no purpose as they are not a legal source of voting evidence; V.11 and V.23 forms are.
V.11 forms are the equivalent of an invoice in accounting. They cannot be replaced by anything else as evidence. You can produce a profit and loss statement from invoices, but the evidence remains the same.
ZEC “delays” in announcing the election
The Constitutional Court will not annul a result of such an important election because ZEC announced the result after four days, when it had five days under the law to do so.
ZEC has no obligation to announce the presidential election results first. This requirement is only at the polling station where the ballot papers in the presidential election must be counted first. This is done in the presence of candidates or their election agents and accredited observers.
During the counting process and until the count has been finalised and recorded on the V.11 forms, no-one is allowed to enter or exit the counting room. After the presidential votes have been counted, the constituency votes are counted, following the same procedure, and then the ward votes. The totals are entered on three separate V.11 forms, one for each election.
The polling station V.11 forms must be signed by the polling station presiding officer as a correct record of the votes cast at the polling station.
His/her signature must be followed by the name and signature of the person who witnesses the presiding officer signing the form. The complete returns must be shown to those present and each candidate or his/her election agent must be given an opportunity to sign the forms as a correct statement of all votes cast, but no candidate or agent is obliged to sign. This is a very elaborate process which makes the V.11 document a very credible one.
Justice Chigumba invited presidential candidates’ agents to be there for the verification process. They would sift through the V.11 forms and agree with the tally. It has to be noted that this is not a legal requirement, but can be done for transparency.
Candidates’ agents do not have to be present at this verification process. They merely have to be notified of the time and place and given an opportunity to be present (Electoral Act, section 110(3)(c)to (e)). So Chamisa’s agents erred when they stormed the election announcement room saying they had not been given the opportunity to verify the tally.
Candidates’ agents had the opportunity to check the V.11 forms at the polling stations, the totals on the V.23A forms at the ward centres and the totals on the V.23B forms at the constituency centres. The idea that a candidate’s agent can hold up the final announcement of results by his or her absence is not credible
Chances for the petition
Going forward, Chamisa’s petition is heavy on politics, but weak on law. He has an uphill legal struggle of seeking to declare himself the winner in a process that he considers illegal and illegitimate.
In any case, why would he want to be a winner in an election which he said was flawed?
Itayi Garande is a lawyer based in the United Kingdom and Dubai. He can be reached at firstname.lastname@example.org