ConCourt trashes Chamisa case

THE Constitutional Court (ConCourt) yesterday declared Zanu PF leader Emmerson Mnangagwa as the duly elected President of Zimbabwe after making a determination that MDC Alliance leader Nelson Chamisa failed to provide the court with primary evidence to enable it to invalidate the declaration made by the Zimbabwe Electoral Commission (Zec).

BY CHARLES LAITON

MDC Alliance leader Nelson Chamisa

The full ConCourt bench, led by Chief Justice Luke Malaba, delivered a unanimous determination following an application by the youthful MDC Alliance leader who sought to invalidate Mnangagwa’s appointment to the country’s top position on allegations of rigging.

In its judgment, whose reasons Justice Malaba said would be delivered in due course, the ConCourt said although Chamisa’s team of lawyers presented their case well, the evidence submitted was not sufficient to convince the court that the July 30, 2018 election was marred with irregularities that warranted the setting aside of the results.

“Applicant (Chamisa) made several generalised allegations against the Zimbabwe Electoral Commission and made startling allegations that there were several irregularities committed by Zec, but without providing primary evidence and Zec refuted with tangible evidence,” Justice Malaba said.

“The best evidence would have been the contents of the ballot boxes and primary evidence … these, coupled with what the applicant had, would have proved the alleged malpractices,” the judge said.

“It follows that when the results were declared, he [Chamisa] knew that he was an aggrieved candidate. It was then that he should have sought to obtain evidence from the election residue … applicant would have sought a recount within 48 hours and would have approached the Electoral Court to seek the unsealing of the ballot boxes … a recount of the votes or analysis of the sealed ballot boxes would have cleared the air but he chose not to exercise his right … ”

Justice Malaba further said if Chamisa had presented the V11 forms from his election agents, a sample analysis with the residue from sealed ballot boxes would have addressed a number of issues such as double-voting, debunked allegations of over-voting and established accuracies of results and data provided by the electoral commission.

The judge further said Chamisa’s team of lawyers was asked by the court why they did not seek to present the primary evidence from the ballot boxes, and their answer was “the election residue was a poisoned chalice”, but Zec maintained it had carried out its mandate above board.

“The onus to prove the case was with the applicant and what Zec did was to simply respond. Zec proved that the V11 forms presented by the applicant were fabricated and without access to the sealed boxes the allegations remained as refuted,” Justice Malaba said.

Turning to the issue of the 40 000 alleged disenfranchised voters — teachers, Justice Malaba said the allegations were too general and there was no evidence from Chamisa to substantiate his claim.

The judge said the electoral body gave evidence to the effect that some of the said teachers opted to be posted to other stations away from where they were registered to vote.

He further said there was no evidence of how many teachers were registered to vote and if they were, there was no evidence that they would have voted for Chamisa.

The court said it found that Chamisa failed to clearly and directly provide sufficient, credible evidence and “there was no proof of the happenings of the irregularities as a matter of fact … there is a presumption of validity of an election … it’s not for the court to decide an election, but it is the will of the people”.

Chamisa had petitioned the ConCourt arguing the electoral body did not conduct a proper election and alleged Mnangagwa’s declaration as the winner was coupled with several irregularities, including rigging and Zec’s shoddy job.

Chamisa’s lawyer Advocate Thabani Mpofu had further said the irregularities in the just-ended election process denied Zimbabweans their right to free, fair and transparent elections, adding on that basis, the election was invalid irrespective of the effect of the irregularities on the result.

In response to Chamisa’s application, Zec’s lawyer Tawanda Kanengoni, who was assisted by Charles Nyika, denied Mnangagwa rigged the elections, claiming Mpofu’s evidence of rigging was based on wrong analysis of the figures of the voter turnout percentage and the number of registered voters.

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24 Comments

  1. Now its time to ammend the constitution because we want mutual Presidential candidates with 50 and above years.

    1. very retrogressive

    2. lets not take chinos utterances seriously we know the man and if not careful will be labelled a nation of lunatics

  2. it’s just a matter of time ED will be removed from power by the power hungry junta. We all know Chiwenga is behind all the dirty work, we are going nowhere

    1. Timothy Thorton

      It’s your opinion. Find something better to pray for

    2. proper day dreaming hence you now need to change your tone as all the lies you were following from some political leaders has failed to bear fruit join and worship the winning team and participate in economic rebuilding of the country thats all there is to it now

    3. Your prayers will not be answered any time soon. Kkkkkkk!

    4. wishful thinking

  3. Constitutional democracy legislature, judiciary are all great sounding concepts but with origins in the West. The very same West found us in the 19th century existing as separate entity tribes with a chief or king at the head of each tribe. We had our own systems which worked very well for us back them. For example if the Ndebeles felt they were experiencing a food or female sex deficit they would send armed emissaries to negotiate with the Shonas to bail them out. Alliances amongst the Shonas tribes would develop to try convince them that food and the fairer sex were also in high demand in Shona regions. This is more or less the set up in medieval Europe. Germanic tribes would often unite to fight the Roman military juggernaut bent on hegemony. Unlike in our case the Germans then realised themselves that they were stronger united than divided and that’s how that great nation of Germany was born. Still for a while they depended on a monarchical system before evolving into a constitutional democracy. Still, on the way, they had hiccups like Hitler occurring. Now for us in Zimbabwe, it was all forced down our throats. Heh, we are here to colonise you, make you into one nation blah, blah. Because we did not and have not evolved our own system of governance elections since 1980 have always been a farce. No political party other than Zanu PF was allowed to campaign in Shona speaking rural areas in 1980. Back then it suited Margaret Thatcher the British Prime Minister who had a bromance with Mugabe and was intent on making the most of having brokered the Lancaster House talks. Zanla comrades labelled any opposition to the Zanu PF line selling-out punishable by maiming or death. They threatened a return to war if Zanu PF lost. In addition to constitutional democracy being foreign to us it got off to a charade of a start. Rather than trying to revolutionarise as the MDC are hell bent on doing hence the call for sanctions let the evolutional process take place instead until we develop something which works for us.

    1. You got me laughing with your “if the Ndebeles felt they were experiencing a food or female sex deficit they would send armed emissaries to negotiate with the Shonas to bail them out.” well democracy is good especially if a couple of abuses are put in place here and there.

  4. All unbiased observers would agree that the MDC legal team failed to produce evidence to discharge their onus in court. Allegations not backed by admissible evidence are just allegations. Two things emerged from the court proceedings. Either the elections were rigged but Chamitiswa & his legal team are a bunch of woefully incompetent lawyers that they dismally failed to prove any of their claims. Or the MDC candidate was walloped in the elections & had no evidence to bring. The second is the most likely. Chamitiswa knew he had been beaten cleanly but maliciously tried to spoil ED’s victory. In the process, he managed to show himself as a very primitive competitor ( except to a few of his foolishly fanatical supporters) who is not suitable for Zimbabwe’s highest office. If he won, why didn’t he argue that is his oral evidence. He took advantage of his supporters’ emotions & led some to their deaths. He is both the most evil & most idiotic child ever to be born our beautiful Zimbabwean mothers.

  5. Comment…zanu chiwororo. Let us forget about politics and concentrate on economics for the next five years

  6. kid marongorongo

    moving forward is going to be difficult for us now since MDC Alliance has already shuts zimbabwe’s doors on re-engagement, ED had done a sterling job to try and reconcile with the west but only because of a one day event the MDC made us suffer for more unknown time and i promise as long as they still have this mentality i wont vote for them in 2023. politics and economy should be separate.

  7. Elliot Manyika said that too.

  8. The nation must not suffer because of Chamisa’s lying habit.

  9. Chamisa is as power hungry and arrogant. He is unstable and of risky temperament. This guy made people fast and pray for ConCourt petition knowing there was no evidence to place before the court. Very selfish !!! I hope his supporters are they were taken a ride!!

  10. Mmmmm vanhu let’s learn from ED he is talking about moving forward.let’s talk about peace peace. After all Chamisa fought a good fight. Respect him for his effort

  11. Its only a,matter of time before all the mnangagwa praisers rue this so called victory. Wait and see.

  12. Comment…musoni usatituke nhaika just celebrate yo victory murunyararo t

  13. Comment…Kufarira n’anga neinobata mai.Muchaona kuti Bobo aitova nani

  14. I am yet to see the Secret Weapon that were told about ad libitum and ad neauseam

    And how do we explain this series of statements and positions by Chamisa and MDC-A:

    (1) 12 demands have to be meet otherwise no election

    (2) 12 demands later reduced to 2 otherwise no election

    (3) 2 demands again reduced to nil otherwise no election, but at the end there was an election and Chamisa and his MDC-A participated.

    (4) We will not go to court because we are not fools. Then later they went to court and lost. Mugabe will vote for MDC-A so we have won.

    (5) God is in it and let’s fast Zimbabwean. ED must resign or face humiliation on Wednesday. Who then got humiliated?

    (6) We have a secret weapon but we will not reveal it. The secret weapon later became a secret weapon of self-destruction. BOOM! he lost the case with cots – no concrete evidence except just unsubstantiated allegations

    (7) We have a team of anti-rigging experts consisting of the best brains in the country. Then later we hear the elections were rigged

    (8) We have an A-team of top local and regional lawyers will will overturn ED’s victory. The the court falls flat with the silent operator Kanengoni hogging the limelight

    (9) Now were here we accept the court decision, then later we reject it

    (10) Now again we here we have a non-legal route to the problem ..
    and the list goes on.

    Come 2023 the same script will run again:
    -Voter’s roll is shambolic,
    -ZEC is partisan
    -We wont participate in elections, then participation
    -Denial of election results,
    -Constitutional court (withdrawn or otherwise
    -Inauguration
    -A few the protests later to save face, and it’s done.

    Come 2028, except the same sequence of events.

    Without taking anything from Chamisa, what this shows is sheer inconsistency and he needs to mature and calm down and only talk when he has something convincing to tell the world. the residual effects of SRC and students unionism is still very strong in him, and student unionism thrives on emotions rather than facts. it works at student politics level but won’t fly at national level.

    1. You nailed it very well here.

  15. Common law condoned only JUSTUS ERROR, otherwise the allegation of election irregularity or rigging sticks. Justus error was patently impossible of rational proof by Zec in numerous instances of Zec admitted error,

  16. Common law condoned only JUSTUS MATERIAL ERROR, otherwise the allegation of election irregularity or rigging sticks. Justus error was patently impossible of rational proof by Zec in numerous instances of Zec admitted MATERIAL error,

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