Chamisa’s petition weak on law, heavy on politics
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?
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 1,1 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.
Legal arguments
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”. ◆ Dr Itayi Garande is a lawyer based in the United Kingdom and Dubai. He can be reached at itayig@hotmail.com
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