Constitutional Court judgment on Nelson Chamisa petition

HERE is the full text of the unanimous judgment of the Constitutional Court given by Chief Justice Luke Malaba yesterday afternoon.

The applicant was MDC - Alliance candidate Mr Nelson Chamisa; the first respondent was the winner of the July 30 presidential poll, Zanu-PF candidate President-elect Emmerson Mnangagwa; respondents 2 to 22 were the other presidential candidates; respondents 23 and 24 were the Zimbabwe Electoral Commission and its chairperson, Justice Priscilla Chigumba; respondent 25 is the Chief Elections Officer.

This is a unanimous judgement of the court. It must be noted however that it does not at the moment contain the full reasons thereof. These will be issued in due course when a full-dressed judgement taking all the legal issues of the law reports will be considered.

On the 30 of July 2018 the Republic of Zimbabwe held harmonised parliamentary, local government and presidential elections. The applicant and the first respondent participated as presidential candidates along with 21 others.

On 3 August 2018, the 24th respondent acting in terms of section 110 Subsection 3 paragraph F(ii) of the Electoral Act declared the first respondent as the candidate who had received more than half the number of votes cast to be duly elected as the President of Republic of Zimbabwe with effect from that date.

The applicant was aggrieved by the declaration of the first respondent as having been duly elected as the President of the Republic of Zimbabwe. He lodged an application in terms of section 93 of the Constitution of Zimbabwe 2013, which I shall call from now on the Constitution challenging the validity of the election of the first respondent as the President of the Republic of Zimbabwe.

Section 93 provides as follows: Challenge to Presidential election Subsection (1)subject to this section any aggrieved candidate may challenge the validity of any election of a President, or a vice president by lodging a petition or application with the constitutional court within seven days after the date of the declaration of the results of the election. Subsection 2; the election of the vice president may be challenged only on the ground that he or she was not qualified for election. Sub section (3) The Constitutional Court must hear and determine a petition or an application under sub section (1) within 14 days after the petition or application was lodged and the court’s decision is final.

The applicant seeks the following relief,

Paragraph 1 The declaratory to the fact that (i) The Presidential election 2018 was not conducted in

accordance with the law and was not free and fair. (ii) The election results announced by the commissioners of the Zimbabwe Electoral Commission on the 2nd of August 2018 and the concomitant declaration of that same day by each chairperson to the effect that Emmerson Dambudzo Mnangagwa was to be regarded as the duly elected President of the Republic of Zimbabwe with effect from the 2nd of August 2018, is in terms of section (93) Subsection (4 )paragraph (b)of the Constitution of Zimbabwe as read together with section (III) subsection (2) paragraph (b) of the Electoral Act, declared unlawful, of no force or effect, accordingly set aside. (iii) That the applicant Nelson Chamisa is in terms of section (93) subsection (4) of the Constitution of Zimbabwe declared the winner of the presidential election held on the 30th of July 2018. Paragraph 2. An order to the following effect (i), the 25th respondent shall publish in the Government gazette this order and the declaration of the applicant to the office of the President of the Republic of Zimbabwe. Alternatively (ii) in terms of section (93) sub section (4) paragraph( b) an election to the President of the Republic of Zimbabwe shall be held within 60 days of this order and (iii) cost of this application shall be born by the Zimbabwe Electoral Commission and any such respondent as opposes it.” The application was opposed by the 1st, 5th, 6th, 17th, 18th, 20th, 23rd, 24th and 25th respondents for reasons that will be set out in the full judgement. The court ruled that the opposing papers filed by the 5th, 6th, 17th, and 20th respondents were (i) not properly before the court and (ii) should be expunged from the record with no order as to costs. The 6th and 18th respondent indicated that they would abide by the decision of the court.

We go to the first question whether the application is properly before the court.

The respondents took several points in limine including that the application filed by the applicant is not properly before the court. This was so because although filed within seven days as stipulated by Section 93 of the Constitution, the application was served on the respondent on the 8th day in violation of rule 23 sub rule (2) of the rules of the Constitutional Court 2016. The Constitution does not refer to weekdays but days. This is to be taken to mean seven calendar days and includes Saturdays and Sundays. In terms of section (23) subsection (2) of the rules, the application shall be lodged with the registrar and shall be served on the respondent within seven days of the declaration of the results of that election. The 1st respondent was declared the duly elected President on the 3rd of August 2018. In terms of section (93) subsection (1) of the constitution as read with rule 23 sub rule 2 of the Constitutional Court rules, the applicant had until the 10th of August 2018 to file and serve the application on the respondent.

It appears to have been cognisant of the reckoning of days and time limitations prescribed by the Constitution and waited until the last day to file his application shortly before closing the Constitutional Court registry on the 10th of August 2018. He was entitled by law to do so. Having done so, the applicant was then faced with a further obligations to serve the process on all respondents on the day. The applicant could only do so through the Sheriff of Zimbabwe in terms of Rule 9 sub rule 7 of the Constitutional Court rules.

The applicant indicates that he did so. The sheriff had until 10pm that same evening to effect service in compliance with the rules. The affidavit submitted by the respondents show the applicant had in fact attempted service in their own capacity and without the assistance of the sheriff on the 10th of August 2018. It is common cause that the application was eventually served on the respondents on the 11th of August 2018, outside the time frames stipulated in the Constitution and contrary to the provisions and contrary to the Constitutional Court rules. The same limitation applied to the respondents who were served with the application on Saturday the 11th of August 2018. The notices of opposition would have been due within three days from that date being the 14th of August 2018.

In terms of section 336 subsection 2 of the Constitution of Zimbabwe: “Subject to this constitution whenever the time of doing anything in terms of this constitution ends or falls on a Saturday, Sunday or a public holiday the time extends to, and the thing may be done on the next day that is not a Saturday, Sunday or public holiday.”

The notices of opposition both had to be filed the on the next business day thereafter being the 15th of August 2018. They were dually served and properly logged with the central registrar in terms of the law. The applicant however clearly breached the rules of the court and filed a defective application.

However, due to the importance of the matter and the public interest, the court has the power and to condone non-compliance rules in the interest of justice. An application for condonation of this non-compliance albeit opposed by the respondents, was made for the applicant. This court is prepared to, and hereby does, grant the application due to importance of the matter and the public interest involved.

The other points in limine raised by the respondents will be fully addressed in the judgment to come.

(Merits)

On the merits, the applicant alleges that the first respondent did not win the election due to the fact that the run-up to the election the 23rd and the 24th respondents were involved in a litany of the constitutional and electoral law violation all of which had the effect of undermining the just conduct of the election. Some of the alleged violations relate to: i. Lack of Independence of the Zimbabwe Electoral Commission ii Failure of the state owned media to comply with section 61 subsection 4 of the Constitution iii Conduct of the traditional leaders and rogue security elements. iv Failure to abide by general principles affecting conduct of the elections v ZEC’s responsibility to compile voters rolls vi Wearing partisan clothing vii Failure to provide a complete voters roll viii Voter education ix Design of presidential ballot papers x Fixing of polling station returns (V11forms) on the outside

of polling stations xi Postal ballots xii. Counting of presidential ballot xiii Undue influence, threats, injury, damage harm or loss to

voters xiv Bribery, provisional seed and fertilizer packs

The court knows that the High Court of Zimbabwe was in recent months seized with and determined issues pertaining to: i) Conduct of postal voting ii) Design of presidential ballot iii) Release of voters roll with voters photographs to the parties iv) The 23rd respondent’s obligation to facilitate the voting by

civil servants engaged in election duties on election day. The court will therefore not at this juncture address the applicant’s contentions in respect of these issues. The court will also not in this abridged version of this judgement address the totality of the allegations made by the applicant as listed above. This will be done in the main judgment.

Standard of proof in election petition

In terms of authority of this and other courts the declaration of results in terms of the section 110 subsection 3 paragraph f(ii) of the act reacts a presumption of validity of that declaration. The honours and burden of proof in this application therefore rests with the applicant and it is for him to prove to the satisfaction of the court that there were irregularities in the conduct of the election.

The general position of the law is that no election is declared to being valid by the reason of any act or omission by a returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate election rules, if it appears to the court the election was conducted substantially in accordance with the law governing elections, and that the electoral omission did not affect the election result.

As an exception to this general position, the court will declare the election void when it is satisfied from the evidence provided by the applicant that the legal trespasses are of such a magnitude that they have resulted in substantial non-compliance with the existing electoral laws.

Additionally the court must be satisfied that this breach has affected the results of the election. In other words, an applicant must prove that the entire election process is so fundamentally flawed and so poorly conducted that it cannot be seen to have been conducted in substantial compliance with the law.

Additionally an election result which has been obtained as a result of fraud will necessarily invalidate the election.

The court will invalidate presidential elections in very limited and specific circumstances if: (1) The results are a product of fraud (2) The elections were so poorly conducted that they could

not be said to be in substantial compliance with the law. It is for the applicant to prove to the satisfaction of the court that the election was conducted in a manner which fails substantially below the statutory requirements of a valid election and that the result was materially affected warranting a nullification of the result or invalidation of an election.

The need for the applicant to have produced source evidence

A significant part of the applicant’s challenge related to the results and figures announced by the electoral commission. Allegations were made that the results announced were incorrect and did not reflect the true will of the people of Zimbabwe. In so doing the applicant alleged irregularities relating to voter patterns, polling station retains, inflation of votes, over voting, ghost voting, among other infractions, which will be dealt with. In short, it is alleged that there was rigging. The applicant made general allegations against the first respondent. No allegation of direct manipulation of the process was put forward against 1st respondent or allegations were made without particularity and specificity. This would have been required to prove allegations of complicity by the winner of the election alleged to be the deliberate beneficiary of the alleged improper election.

Nevertheless, if the applicant had proved that the electoral commission had committed irregularities and made legal requirement of such a petition to the requisite standard of proof, this alone would have been sufficient to invalidate an election even in the absence of direct involvement by the 1st respondent.

The applicant made several allegations of irregularities against the Zimbabwe Electoral Commission, which were said to be related to its failure to discharge its obligations in terms of the law. No proof or evidence was adduced by the applicant himself of these allegations.

The court decides matters based on facts and evidence placed before it. In an application of this nature, it is even more incumbent on an applicant to ensure that he or she exercises his or her rights in terms of the law to the fullest measure to ensure that almost no reasonable doubt can be left in the mind of any court that allegations of malpractices or fraud as the case may be are true to justify the court setting aside the election together with every vote cast by the millions of Zimbabweans who exercised their constitutional right to vote.

The best evidence in this instance would have been the contents of the ballot box themselves; that is the primary source evidence. Evidence of the contents of the ballot boxes compared to the announcements by the electoral commission, and the evidence within the applicant’s own knowledge, would have given the court a clear picture of any electoral malpractices, if any had occurred. No such proof was adduced by the applicant to support his allegations.

The electoral law is designed to protect the vote. The protection of the ballot cast by every single citizen who participated in the election is fundamental. It is the one that the court should guard jealously. The avenues availed to an aggrieved candidate are meant to ensure that he or she has all the evidence available to him or her to assist the court.

It follows that when the results were declared in early hours of Friday 3 of August 2018, the applicant may not have known the exact or precise reason why he was aggrieved but the makers in their wisdom created an avenue for the applicant to ensure that he had all the evidence necessary to prove his case if he so wished to exercise his right to challenge the result. The time was on his side to obtain such evidence from the residue.

The applicant’s remedies to access the ballot and election residue are in the Electoral Act under Section 67 subsection (a) and Section 70. Under Section 67(a) the applicant would have sought a recount of the votes within 48 hours whilst under Section 70, he would have approached the Electoral Court for an order of unsealing the ballot boxes. These remedies are designed to protect each aggrieved candidate and to dispose of any doubt whether or not the election itself was properly conducted on the electing day and whether the true expression of Zimbabwean voters will was announced by the Zimbabwean Electoral Commission.

These remedies are for the benefit of the aggrieved candidate. They are meant to ensure that no unnecessary disputes or litigation relating to the validity of an election are undertaken. They are also meant to ensure that the aggrieved candidate, who then becomes the applicant, has the necessary evidence to prosecute successfully his or her application.

So these are the remedies not for the respondents’ benefit. They are meant to protect the rights of those who are aggrieved by the results of the presidential election. Armed with the evidence either from a recount where the figures are alleged to be incorrect or the analysis of the sealed boxes, the applicant would have a clear indisputable picture of the outcome of the election. He would have been clear whether any irregularities relating to the actual votes and the results could be substantiated. He chose not to exercise this right.

The electoral law protects the voter and the candidate in the process involved. This is from the delivery of the ballot papers to the polling station, to the collection of the results, right down to the sealing of the ballot boxes at the end of the election. The applicant was at large therefore to extend his polling agents or to send his polling agents to each and every polling station around the country. Observers were also free to participate in the process. The applicant’s agents observed the voters arriving, being given the ballot papers as applicants for these papers before the presiding officers, going on to vote in secrecy in the booths and having the votes counted in their presence if they were there. At the end of the counting, all agents in terms of the law who are present are required to sign if they so wish the V11 forms, copies of which are then given to them.

Thus, if the applicant had placed before the court the V11 forms from all the stations that he had a right to have his agents present, a simple analysis of these V11 forms against the V11 forms in the ballot boxes which would have been unsealed would easily have done the following: a) It would have disposed of any questions regarding the numbers of votes for any given polling station or constituency. b) It would have addressed any question of over voting. c) It would have debunked allegations of over voting or upsurges of voters after a particular time, for instance what is alleged to have happened in Mashonaland Central. d) It would have addressed the issues of differences in voting patterns and numbers of votes for parliamentary and presidential elections. e) It would also have addressed issues of improbability of similar and identical results at polling stations. f) It would have addressed questions regarding the accuracy of the result and data provided by the commission. In essence, the entire challenge to the figures would have been easily resolved and if there was any irregularity, it would have been easily detectable. When pressed why that evidence was not adduced, the applicant’s practitioner gave a bold and unsubstantiated allegation that the ballot was tampered with.

It was argued by the applicant’s counsel that the ballots were a poisoned chalice. In other words, by the time you would have sought to have them unsealed, they would already have been manipulated. That was the argument. This exercise therefore according to this argument, it was argued would have been futile.

However, this position faces the following counters:

The Zimbabwe Electoral Commission contends that the prescribed procedures were complied with.

Logic therefore dictates that if the applicant and his agents or any other political candidate whose agent had the forms, had the V11 forms in their custody, they could easily have compared them against the residue and further compared them against the result declared. Even assuming that the applicant did not have agents at every polling station, a sample of constituencies could have been used so that the same constituencies where the applicant now disputes the figures would have been compared.

If there were instances where for one reason or another the forms were not recorded as they should have been, specific evidence detailing the gaps and the discrepancies should have been filed before this court. This could have been connected to the allegations of malpractice against the commission.

In the second incident, the applicant urges or argues that the crux of his case stays even without the primary evidence. It was argued that an attack on the figures produced by the electoral commission itself would suffice to invalidate the election. Even then, all the allegations made against the commission were debunked to some degree by the electoral commission, specifically and systematically.

The election result and the admission by ZEC

On the 3rd of August 2018, the Zimbabwe Electoral Commission announced that Emmerson Dambudzo Mnangagwa having achieved the required fifty percent plus one vote from the election, was declared to be the duly elected President of Zimbabwe. The declaration was made in terms of Section 110 (3) paragraph f(ii) of the Electoral Act.

It states (f), subject to paragraph (h), after the number of votes received by each candidate as shown in each constituency return has been added together in terms of paragraph (e), the chairperson of the commission or in his or her absence, the deputy chairperson, or in his or her absence, a commissioner designated by the chairperson shall: 1. Where there are two candidates, forthwith declare the candidate who has received the greater number of votes to be duly elected as President of the Republic of Zimbabwe with

effect from the day of such declaration. OR 2. Where there are more than two candidates forthwith declare the candidate who has received more than half the number of votes to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration. OR 3. Where there are more than two candidates and no candidate has received more than half the number of votes forthwith declare that a run-off Presidential election shall be held on the date fixed by the President in terms of Section 38(1) paragraph A (iii) that is to say “a fixed date not less than 28 and not more than 42 days after the polling day or last polling day as the case may be of the original election provided that the electoral court on the application of the commission may for good cause extend the period at court. Now the declaration as set out for this provisions is the legal event. This is upon any candidate reaching the 50 percent plus one vote threshold.

Whether or not a candidate has reached this threshold is a question of fact. It not a question of figures. The declaration can only be changed and altered by this court in terms of section 110 subsection 3 paragraph (i) which says, “A declaration by the chairperson of the commission or in his or her absence the deputy chairperson, or in his or her absence a commissioner designated by the chairperson under paragraph (h) shall be final, subject to reversal on petition to the electoral court that such declaration will be set aside or to the proceedings relating to that election being declared void.

Therefore the declaration itself is final subject to requirements prescribed reversal requirements. The Zimbabwe Electoral Commission made a critical admission that the exact figures were incorrect and minor adjustments were made after data capturing errors were corrected. It was submitted that this affected the figures relating to the 1st respondent’s win by 0,1 percent but it did not affect the result of the election.

It is important to understand what the result of an election is. The result of an election is the declaration of a winner having reached the 50 percent plus one vote; no other thing. Any votes after that point have no bearing on the result of the election.

The amendment by ZEC has no effect at all on the result of the election and the declaration as interpreted in this case. In fact, an error in counting and amendment of figures is envisaged in the Act itself which makes the provisions of section 110 subject to those of section 67 (a). The law therefore allows for that adjustment and again if the applicant was aggrieved by the counting and the figures availed he should have utilised remedies availed to him by the Act.

In this case the applicant in our view needed more evidence than the mere admission by ZEC on the inaccuracy of the mathematical figures.

On the case presented by the applicant on the irregularities allegedly committed by the ZEC, the applicant made several generalised allegations of electoral malpractices against the electoral commission.

He made a startling submission that these generalised allegations would suffice to prove this case of irregularities without resort to the primary source evidence. The electoral commission nonetheless took time to analyse allegations against it and produced clear and tangible evidence to refute the allegations making it incumbent on the applicant to discharge the onus which was on him. The onus to prove the case is not on the person accused. The accused person doesn’t have to prove anything, doesn’t have to prove innocence and therefore the respondent in this case needed only to respond.

ZEC proved through the V11 forms produced that allegations on some forms had been signed and not populated was false and there appears to have been a deliberate fabrication of evidence with an intent to mislead the court. Without access to the sealed ballot boxes residue, this allegation simply remains as refuted.

Disenfranchisement of 40 000 teachers

The applicant alleged that some 40 000 teachers were denied their right to vote on the Election Day and that this had direct effect on the results. The allegation, needless to say, was very general and unsubstantiated. It is not clear how the figure 40 000 was calculated. There was no evidence from the teachers themselves that they were registered voters who wanted to exercise their right to vote and were posted against their will.

On the contrary, it was shown by ZEC that some teachers had deliberately opted not to vote in favour of being posted to stations where such right could not be exercised. The Constitution gives every Zimbabwean who is eligible to vote a right to vote, it is not an obligation under our Constitution to vote. There was no evidence therefore how many of these teachers were registered voters. There was no evidence of the fact of this allegation. Even if it was proven that it has affected the result, there was no guarantee that every teacher would have voted for the applicant.

The allegation relating to on ghost polling stations or polling stations created at the time of voting lacked specificity and particularity and were in any case disproved by the evidence adduced for the 23rd and 25th respondents. And these are the kind of allegations that would have been easily proven by the access to the evidence in the sealed ballot boxes.

In the final analysis, 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 election process materially existed. 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 into question whether such irregularities materially affected the election results. As already indicated it is an internationally accepted principle of election dispute that an election is not set aside easily merely on the basis that irregularities occurred. There is a presumption of validity of an election. This is so also because as long as an election was conducted substantially in terms of a Constitution and governing laws it would have reflected the will of the people. It is not for the court to decide elections, it is the people. It is a duty of the courts to strive in public interest to sustain that which the people have expressed their will in. Therefore their application ought to be dismissed.

In the result, the following order is made:

The application is dismissed with costs. 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 judgement in due course on these issues. We have come to the end of these long proceedings.

We thank all those have who participated. As I said at the beginning, we thank the lawyers. At the end of the day, it is their submissions regardless of which side there were that has helped this court to arrive at this decision. Lawyers are not there to win. Lawyers are officers of the court and the integrity lies in your status as a lawyer and therefore be proud to uphold those principles in which the public looks up to. I thank the public for having shown confidence in the judiciary whatever views they take at the end of the day we are all Zimbabweans and we have a right to the law.