Concourt upholds ED poll victory

THE Constitutional Court (Concourt) has upheld President Mnangagwa’s victory in the July 30 harmonised elections, saying the petition by MDC-Alliance leader Mr Nelson Chamisa was deficient of evidence to buttress his litany of poll rigging claims.

Mr Chamisa, who lost the presidential election to President Mnangagwa, challenged the validity of the election which he claimed was rigged in favour of President Mnangagwa.

Mr Chamisa raised a host of allegations, including alleged vote-buying, ghost polling stations, denial of 40 000 teachers the right to vote, skewed media coverage by the public media and inflation of figures among others.

Chief Justice Luke Malaba — sitting with eight other Concourt judges — found no fault with the conduct of the 2018 harmonised elections.

The court, unanimously threw out the application with costs.

“In the final analyses the court finds that the applicant has failed to place before it clear, direct, sufficient and credible evidence that the irregularities he alleges marred the electoral process. “In other words, there was no proof of these irregularities as a matter of fact. There would be therefore be no purpose for this court to go further and enquire.

“It is a question whether such irregularities materially affected the election results as already indicated it is an internationally accepted principle of election disputes that an election is not set aside easily mainly on the basis that irregularities occurred.

“There is a presumption of validity of an election. It is so because the election was conducted substantially in terms of a Constitution and governing laws it should have affected the will of the people. It is not for the court to decide elections, it is the people. It is a duty of the court to strive in public interest to sustain that which the people have expressed their will in. Therefore their application ought to be dismissed,’’ Chief Justice Malaba said.

“The following order is made — The application is dismissed. In terms of Section 93 subsection 4 sub-paragraph A of the Constitution, Emmerson Dambudzo Mnangagwa is duly declared the winner of Presidential elections held on the 30th of July 2018. As indicated there will be a fully dressed judgment in due course on these issues. We have come to the end of these court proceedings. . . . “Application is hereby dismissed with

costs. In terms of Section 93 (4) (e) of the Constitution, Emmerson Dambudzo Mnangagwa is duly declared the winner of the Presidential elections held on the 30th of July 2018.” He said the failure by Mr Chamisa and his lawyers to produce primary evidence substantiating the rigging claims was fatal to the case.

“The best evidence in this instance, would have been the contents of the ballot boxes themselves. That is the primary source evidence. Evidence of the contents of the ballot boxes compared to the announcement by the electoral commission and the evidence within the applicant’s knowledge, would have given the court a clear picture of electoral malpractices, if any had occurred.

“The applicant needed more evidence than the mere admission by ZEC on the inaccuracy of the mathematical figures,” said the judiciary boss.

The court also found that Mr Chamisa’s failure to send polling agents to all polling stations also deprived him of the much needed evidence to prove his claims.

Desperation on the part of Mr Chamisa, the court said, resulted in him fabricating evidence in a failed bid to mislead the judges.

The court ruled that Mr Chamisa deliberately lied to the court that some V11 forms were only signed but not populated.

“ZEC proved through the V11 forms that the allegations that some V11 were signed but not populated was false and there appears to have been a deliberate fabrication of evidence with an intention to mislead the court,” he said.

Chief Justice Malaba said Mr Chamisa failed to establish the alleged infractions by both ZEC and President Mnangagwa in the conduct of the election.

“The court finds that the applicant failed to place before the court, clear, direct, sufficient and credible evidence that the irregularities alleged to have marred the process, materially existed.

“There was no proof of the happenings of these irregularities as a matter of fact,” he said.

The court held that the allegations against President Mnangagwa were general in nature and unsubstantiated.

“Applicant made general allegations against first respondent. No allegations of personal, and direct manipulation of the process were put forward against first respondent. “All allegations were made without particularity and specificity. This would have been required to prove allegations of complicity against the winner of the election.

“Nevertheless, if the applicant had proved that the electoral commission committed irregularities and met the legal requirements of such a petition to the requisite standard of proof, this alone, would have been sufficient to invalidate the election even in the absence of direct involvement by the first respondent,” he said.It was also the court’s finding that Mr Chamisa lodged his application out of time but the court just condoned the violation due to the importance of the case.

“It is common cause that the application was served on the 11th of August outside the timeframes stipulated in the constitution and contrary to the rules of the Constitutional Court.

“The applicant however, clearly breached the rules of the court and filed a defective application. But due to the importance of the matter, the court has the power to condone such breaches.

“This court is prepared to and hereby grants the application due to the importance of the matter and public interest involved,” said the Chief Justice.