Con-Court ruling tomorrow

HARARE - The Constitutional Court (Con-Court) will deliver its judgment tomorrow in an application in which MDC Alliance leader Nelson Chamisa is challenging President-elect Emmerson Mnangagwa’s win in the July 30 elections.

Chamisa filed a court application on August 10, claiming he won the election with 60 percent of the vote.

He approached the Con-Court seeking to be declared the winner or, in the alternative, that the court sanctions a re-run.

According to the results announced by the Zimbabwe Electoral Commission (Zec), Mnangagwa won with 50,8 percent, while Chamisa got 44,3 percent.

Zec and Mnangagwa went into the hearing yesterday separately praying for Chamisa’s application to be dismissed with costs for lack of merit.

The full Con-Court bench comprising Chief Justice Luke Malaba, Deputy Chief Justice Elizabeth Gwaunza, Paddington Garwe, Ben Hlatshwayo, Chinembiri Bhunu, Lavendar Makoni, Rita Makarau, Bharat Patel and Tendai Uchena, dealt with the application.

After hearing arguments from both sides, Malaba reserved judgment in the application which will now be delivered on Friday at 14:00hrs.

Arguing on behalf of Chamisa, Thabani Mpofu, who appeared together with Sylvester Hashiti, told the court that the election was marred with serious irregularities that effectively delegitimised the whole election process.

Mpofu said the fact that Zec had revised its figures thrice was enough proof for the court to nullify the results that were announced.

“Zec admits to making at least five errors that attacks the presumption of validity. The results announced by Zec have been disowned by Zec and it has announced a third set of results. The declaration made by Zec is premised on wrong results.

“If Zec accepts that the first set of results are wrong, they did not have the primary data to back these results,” Mpofu said, further querying on who verified the results that were announced by Zec as the final outcome.

He further accused Zec of double correlation of results, adding that there were non-existent polling stations introduced by Zec as well as more votes collected in some constituencies which were more than the number of registered voters in that area.

Mpofu also said there was a huge unaccounted for discrepancy of 40 000 people that had reportedly cast their vote in the presidential election but had not voted in the parliamentary election.

He said at least 40 000 teachers that were seconded to the electoral body had been disenfranchised of their right to vote.

“The first respondent (Mnangagwa) says nothing about the numbers and numbers don’t lie. When we aggregate the figures, they are above 31 000, which makes a run-off inevitable. The election must be set aside,” he argued.

Mpofu further claimed that some of the V11 forms were not signed and that they could not have sought the opening of ballot boxes within the prescribed 48 hours because they had been “a massive cover-up” of evidence and manipulation by the electoral commission which is supposed to run all electoral processes in Zimbabwe.

“The V11 is signed and stamped but not populated, there has been a massive cover-up, this is evidence of manipulation after the process, if you go at what they call primary data, you will see manipulated data,” said Mpofu.

However, Malaba said the MDC Alliance lawyer was using secondary evidence instead of using primary evidence which would have helped their case.

But Mpofu held his ground and said they could not have “gone for the reopening of the ballot boxes” because of the amount of manipulation that they had unearthed.

Asked by Gwaunza the number of V11 forms that he claimed were manipulated, Mpofu said they could not in seven days have come up with a percentage but pointed out that there was a systematic cover-up by the electoral commission.

“When did you notice that there was systematic manipulation?” Malaba asked.

“What stopped you from doing what we are asking, why didn’t you ask for the ballot box to be opened?” Malaba questioned.

However, Mpofu said that they only had 48 hours to ask for the opening of the ballot boxes, a time-frame he said was too short for the MDC Alliance.

He further said even if they could not have the ballot boxes opened, it was fine because they were not basing their case on residue evidence.

“The fulcrum of our case has nothing to do with the elections residue, the concession by Zec which shows 8 900 votes has nothing to do with that, the difference of 40 000 has nothing to do with the residue, we did not establish them from looking at the residue, the ghost polling stations have nothing to do with the residue, around 69 000 votes that are not explained have nothing to do with the residual vote. 69 000 votes do not require the opening of the ballot boxes,” said Mpofu.

Mpofu had also claimed that Zec bumped up Mnangagwa’s figures through double counts and the creation of “ghost” polling stations, alleging some polling stations recorded more voters than those registered to vote.

“It’s like a kid was playing with the figures,” Mpofu, told the court.

He alleged that 16 polling stations had identical results and that “massive doctoring” took place.

He argued that irregularities wiped out the narrow margin by which Mnangagwa had avoided a second-round vote.

“A run-off is unavoidable. For now, the election must be set aside,” Mpofu said, adding that “we have a false Zec. We have a lying Zec.”

“If we were to say the first respondent is the elected president, how many votes did he garner?,” Mpofu asks.

He argued the applicant had no reason to cause the opening of ballot boxes for a recount and is not obliged to do so, especially when there is evidence placed before the court that figures released by Zec were not genuine and consequently, Mnangagwa did not win the election.

The key case of the applicant is based on Zec’s own figures, said Mpofu.

Malaba asked why the applicant filed his case on secondary evidence when there is first and original evidence.

Hashiti said once the mathematics is gone then there is no valid election process. He added that because Zec has admitted flaws in figures that it announced, that should settle the matter.

However, Zec — through its lawyer Tawanda Kanengoni — challenged Mpofu’s arguments, claiming they were not premised on any tangible evidence.

He said the changes that had been made by Zec did not have any effect on the declaration made by the electoral body.

He said teachers had made their choice to opt to be seconded to Zec instead of voting on the day.

“The changes were minor and immaterial and do not mean anything to the outcome of the results,” he said.

He further said they have enough information proving that the election was not fixed.

Mnangagwa’s lawyer Lewis Uriri, who appeared with Thembinkosi Magwaliba, also attacked Mpofu’s submissions, saying the MDC Alliance had not put before the courts evidence showing where it got the numbers.

“The so-called numbers are a lie. There is no evidence presented before the court to support the claim. The sources of the figures have not been disclosed, the conclusions of the figures are wrong,” he said, adding that Chamisa must have used the provision to recount the results within 48 hours from the time of announcement.

The court could declare a winner, call another election, or order a run-off or recount. The inauguration should take place within 48 hours of the court’s ruling, according to the Constitution.

The court can declare a winner or invalidate the election and call for a fresh election or make any other order it considers “just and appropriate”.

If the court upholds Mnangagwa’s win, the inauguration would take place within 48 hours.

This is not the first time the opposition has challenged election results in court.

Following the 2013 presidential election, then main opposition leader Morgan Tsvangirai filed a challenge but later withdrew it, claiming he would not get a fair hearing.

The court declined his withdrawal and proceeded to rule on the case in favour of former president Robert Mugabe.

 

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Comments (3)

Daily News OR Daily Lies!! Vain attempts to turn Chamisa's fiction into facts! Thanks to live coverage of the court proceedings, FACTS versus FICTION... TRUTH versus LIES!!! Grandstanding, posturing nema press-ups is for polytechnic college students!! Now the bubble has burst.. hameno "Daily News" rambai makashinga!!!

Will Blackman - 23 August 2018

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papa vuka - 24 August 2018

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Clephas Makesha - 24 August 2018

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