ED, Chamisa in Titanic battle

THE Constitutional Court (ConCourt) yesterday reserved judgment in a petition in which MDC Alliance leader Nelson Chamisa is seeking to overturn President-elect Emmerson Mnangagwa’s victory in the July 30 elections.

BY CHARLES LAITON/EVERSON MUSHAVA

MDC Alliance leader Nelson Chamisa’s lawyers, advocates Sylvester Hashiti (left) and Thabani Mpofu arrive for the start of the Constitutional Court petition hearing yesterday

Judgment will be handed down tomorrow afternoon.

Chamisa petitioned the ConCourt, arguing the Zimbabwe Electoral Commission (Zec) did not conduct a proper election, alleging Mnangagwa’s declaration as the winner of the election was marred by several irregularities, chief among them rigging and shoddy handling of the process by Zec.

The youthful MDC Alliance leader, who was represented by advocates Thabani Mpofu and Sylvester Hashiti, submitted before a nine-member bench led by Chief Justice Luke Malaba that the electoral body failed to professionally carry out its mandate as evidenced by the changing of electoral results on three occasions.

The lawyers said as a result of Zec’s conduct, it was not possible for the election to be deemed credible and reliable since several issues had not been properly handled by the electoral body.

“The Zimbabwe Electoral Commission (Zec) announced that Mnangagwa had won the presidential election with 50,8% of the vote. Mnangagwa’s margin of victory was barely over the 50% + 1 [vote] threshold required to avoid a run-off election. According to the announced results, which soon changed, he avoided a run-off by a mere 37 306 votes,” Mpofu submitted.

“Zec now admits that there were patent errors in the results. It subsequently published revised results, without explanation. The published results reduced Mnangagwa’s margin of victory to 50,65%, or just 31 830 votes over the threshold.

“The published results contain further irregularities and miscalculations, most of which are now admitted by Zec. These include the double-counting of polling stations, the duplication of results, and the inflation of votes. All of these irregularities favoured Mnangagwa, helping to push him clear of the 50%+1 [vote] threshold.”

Mpofu 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 is invalid irrespective of the effect of the irregularities on the result.

“The evidence shows that the irregularities did, in fact, materially affect the election result. But for these irregularities, Mnangagwa would, at the very least, have fallen far short of the 50%+1 [vote] threshold. This provides a separate basis to set aside the election,” he said.


Mpofu, however, was later subjected to intense interrogation by the full bench, asking him to explain why and how his client had sought to rely on secondary evidence to present before the court as opposed to the primary evidence, which could be obtained through the opening of the ballot boxes.

“We are interested in knowing why the applicant did not seek to do what the law required him to do, the residue of the original documents containing the names of the polling stations and the polling agents and the figures obtained are contained on the V11 forms which were sealed in the presence of the observers and the poling agents? Why did the applicant not seek to open the ballot boxes and resolve the matter by presenting primary evidence?” the Chief Justice asked, to which Mpofu replied: “There was a massive cover-up by distorting of the evidence by Zec. We did not want to drink from the poison contained in the ballot boxes.”

“There is evidence of manipulation of results by the Zec process and the applicant could not seek to open the residue already manipulated,” Mpofu said, to which the Chief Justice insisted the court was “ready to drink the said poison” and make a determination based on primary evidence”.

Justice Malaba further said: “If the residue in the ballot boxes would not be accepted that they were sealed in the presence of observers, polling agents and relevant people, why were they not? That is what we would want to hear explained.”

Turning to the V11 forms that were allegedly not posted at some polling stations, Mpofu said even the European Union observer mission noted the irregularity and commented on the issue in their report, but the Chief Justice was not impressed by his submission.

“Which polling station did the EU observers visit and make that finding? We are a court of law, we act on proof of facts. Where and which stations do they say they visited and noticed that the V11 forms were completed and not posted? We only hear of bald assertions, but we are not told of the facts, what are they talking about?” Justice Malaba asked.

In response to Chamisa’s application, Zec’s lawyer Tawanda Kanengoni denied his client 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.

Kanengoni, who was assisted by Charles Nyika, said the changes on the Zec results were immaterial because they did not change the declaration made of who won the presidential election.

He justified the three changes on the Zec results after the July 30 polls, saying as a respondent in the matter, the commission had to test its own data to see if it “stands up”.

He said Zec discovered during the testing of the data that it, indeed, stood up and had some few insignificant clerical errors of 0,1% that had no effect to the declaration made on August 2, 2018.

“We discovered some few and minor clerical errors of about 0, 1%. Zec was not changing results, but was responding to the petition filed by the applicant (Chamisa),” Kanengoni said.

“In the process, this is where these minor clerical mistakes were discovered, which were minor to change the declaration made.”

Kanengoni said the evidence on the V11 forms presented by the commission, debunked claims by Chamisa that the elections were rigged, but Mpofu argued that the constant change of results where enough grounds to justify the setting aside of the results.

On the issue of the large number of assisted voters, Kanengoni said “peremptory dictates of the law do not allow Zec to ask people why they elected to be assisted to vote”.

Furthermore, Kanengoni said Chamisa had failed to explain how “assisted voters” prejudiced him, saying “the point is not linked to votes and there was no evidence from any voters claiming of having been coerced to be assisted to vote”.

On the issue of unpopulated V11 forms, Kanengoni described Chamisa’s presentation of facts on the matter as mischievous, accusing some people of pulling out supplementary attachments, leaving out the populated V11 forms which had no details, but signatures of the polling agents.

He also defended the uniform voting pattern at about 16 constituencies, saying it was no longer a probability because the Zec V11 forms confirmed that such a thing, indeed, happened.

Kanengoni justified the suspicious high voter turnout in Mashonaland Central and Masvingo, claiming it was not for Zec to describe how humans behave in relation to the voting patterns.

Mnangagwa’s lawyer, Advocate Lewis Uriri, also argued that Chamisa’s case was improperly before the court and urged the court to dismiss it.

He challenged why Chamisa decided not to use primary evidence in the form of election residues, which he described as the best available evidence, opting to use secondary evidence instead.

“The applicant did not want to use the election residue because he knows it will disapprove him,” Uriri said.

“Election residue is the only admissible evidence that is presented by Zec,” he said, challenging the statistics presented by Mpofu as “merely plucked from the air” with questionable integrity and sources.

“Some of figures are of mysterious origins. He (Chamisa) relates to sample-based extrapolations predicated on behavioural patterns that have no scientific precision. He makes inconclusive findings as regards the possible causes of the alleged variances and anomalies. His evidence is not proof beyond reasonable doubt,” Uriri said.

Uriri pleaded with the court to dismiss Chamisa’s application, arguing that the necessary jurisdictional facts to trigger section 93(3) of a constitutional inquiry had not been established.

Uriri did not deny that Zec figures were changed, arguing it did not matter because it did not change the declaration of Mnangagwa as the winner of the July 30 polls.

Mnangagwa’s other lawyer, Thembinkosi Magwaliba, said Chamisa’s case should be dismissed “because there was nothing valid before the court”.

On the 40 000 disenfranchised civil servants, Magwaliba said there was no evidence that they would have voted for any one of the two candidates and whether they were registered voters.

45 Comments

  1. for the first time the report is factual as it was beamed and watched by almost concerned zimbabwean hence at least very refreshing compared to some previous biased reports

    1. shunguhadziurayi mangarayi

      Taura hako eliasha. Ndakambotaurawo pa this forum kuti varume awa vanowanza masasi pama press conference vachibva vaposta pa you tube. And this paper was reporting as if it was given the evidence by chamisa praising him “the youthful leader” or president chamisa. Now that we all saw it on ztv live its difficult to hide the facts or twist them.

    2. I noticed that too, tilting it and lying for MDC would make them complete fools

  2. The fact is that Chamisa has no proof of what he claims. Thanks Kanengoni you explained a number of grey areas for MuDhoSVo Aliens not Alliance. Tavani Mupofu now big tail between legs.

  3. If Chamisa wins, the court wld hev set a bad precedence, of overlooking primary data, in favor of secondary data wc can be biased, without the V11 ey is no basis of blame, ddnt ey knw about ey did, they ddnt jus knw the courts would allow the proceedings to b beamed live, nw hapana achanyeperwa , you hev jus legitimised ED.
    the Judge ruled dt Zec has no record of malpractice known or reported so nw its known they ddnt go for the residue to blame Zec’s impartiality, Primary data in an court is everything.

    1. The court has power to look at primary evidence on its own

  4. Tichingotonga Vachingovukura

    They were saying they had the V11 forms from 79% of the polling stations to use in court as evidence and 21% are missing. Now they are saying Its actually EU which said 21% of the V11 forms were not pasted outside polling stations and they dont have the other 79 %. EU did not site any specific polling station where the V11 forms were not pasted. IT just gave a general statement which proved useless in Court. The cool Kanengoni guy proved too much for MDC A.

    Above all nothing was presented in court proving that Chamisa won as he was claiming to the world.

  5. If Chamisa wins, the court wld hev set a bad precedence, of overlooking primary data, in favor of secondary data wc can be biased, without the V11 ey is no basis of blame, ddnt ey knw about ey did, they ddnt jus knw the courts would allow the proceedings to b beamed live, nw hapana achanyeperwa , you hev jus legitimised ED.
    the Judge ruled dt Zec has no record of malpractice known or reported so nw its known they ddnt go for the residue to blame Zec’s impartiality, Primary data in an court is everything.

    1. Hakimula Mushudhu

      Comrade, let’s not be incompetent. Someone has already used this line as Mwonzoraa above. Be original

  6. You fail to report that Thabani Mpofu agreed that he did a shoddy job because his 2 kids were hospitalised. It’s very important.

    1. shunguhadziurayi mangarayi

      Achati iZANU PF yakarwarisa vana vake. Heyiii that guy is too pompous for nothing really kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk

      1. you are too shallow

    2. Bambo the whole nation of Zimbabwe will not wait for the rubbish. Ndiye ega atanga kurwarirwa here. Ngaangbvuma chete kuti aida beg re cash from MDC. I am very much disappointed ne MDC.

  7. IF zec managed to pick clerical errors and adjusted ED margin there have to also look at MDC Alliance findings and if need be also adjust EDS or Chamisa Margins accordingly .If ZEC managed to pick clerical errors and adjust , I DONT SEE ANY REASON WHY THERE CANNOT ADJUST ERRORS PICKED UP BY MDC ALLIANCE .FAIR GAME .TINOZVIZIVA KUTI IN THE END MUCHASHANDISA CHI JUNTA .MWARI VARIKUONA HAVO

    1. results for both candidates Chinamasa and Munangagwa where adjusted, still Chamisa akarohwa bambo. Hapana chi Junta apa mafacts ndiwo anodiwa

  8. It appears there was an attempt to shift discussion from “free, fair, transparent and credible” elections to “who got the highest number of votes”. The credibility and transparency of the election process as administered by ZEC and as perceived by the voter and the public should be at the centre of this court hearing. Was participatory democracy in motion or was it denied? Human rights and the right for Zimbabweans to be treated with dignity is at the centre of or constitution, not Legal technicalities. I hope that the court judgement will reflect on this aspect. We also need to be aware that our law is based on the Roman-Dutch Law which is a colonial and capitalist framework for exploiting the people while our Constitution, a recent development, is people and equity oriented. The current legal system might be better aligned to deal with criminal (colonial) matters rather than constitutional (people dignity and respect) matters.

  9. I think most people are being fooled by Lawyers eloquence and I hope the judges are not going to fall for that. for me, Kanengoni was just eloquent and failed to challenge some of the evidence presented. He had a tendency to hide behind words. The guy is just composed and convincing, can be recommended to represent a murderer!!!

  10. Farai Johnson Nhire

    This is one danger that comes with one sided private media repports and analyses depending too much on hearsay and speculation. It is a sad case of someone creating falsehoods and starting to believe those falsehoods and planning based on the same falsehoods.

  11. Our judiciary system is captured. full stop. these are the same justices who ruled that the 17 November 2017 military coup was unconstitutional.

    1. Capture haiite kuti usatsvage pri evidence, hapana capture if you lie to court and supporters kt u hev the evidence go protest, only to go systematic with some EU report, am very much disappointed as a youth

  12. There appears to be an unfortunate shift from ” free, fair, transparent and credible” elections to “who got the highest votes” under the prevailing ZEC administration. If the final judgement focuses on the latter the court will have missed the point. This whole matter is rooted in participatory democracy where human rights and the dignity of the Zimbabwean is central. It should also be observed that the current legal system and framework has its foundations in the Roman-Dutch and English Laws which are colonial and meant to support the exploitation of the ordinary people. The current legal system and framework could therefore be very unsuitable to preside and decide on constitutional (a recent and people oriented phenomenon) matters but more suitable for criminal matters (traditional exploitation oriented phenomenon). In view of the emphasis placed on legal technicalities there is urgent need to align our laws and the administrative framework to the Constitution of Zimbabwe.

  13. To be honest,I am one of those disappointed. Surely, for three weeks Wamba insisted that he won the 30 July elections and should be declared the winner. Last week he told us that ED must do the honorable by stepping down so that the country can move forward and that he had overwhelming evidence to prove that he won but his lawyer never talked about Chamisa winning. You kept us curious with some form of hope.

  14. If this was an examination and results of some candidates were changed, wouldn’t all participants want a re-look at ALL the papers to ensure the adjustment is valid, uniformly applied, fair and reasonable? By admitting to “some clerical errors” ZEC actually admitted there was a problem with either counting, collating or reporting of the same results. It’s up to the jury now to determine the effect or impact of such errors and if other errors still lurk.
    As a voter, all I wanted was a full explanation of the entire system especially counting, collating and reporting of the final tally.

    1. Shariah, this is the count process to which the MDCA had legal cover in the electoral act to reopen the election residue and the count process is redone. They knowingly chose to ignore the provisions of law and thought maybe public sympathy by their Harare and regional sympathizers would sanitize their dirty and poor evidence in court. it was a waste of court’s time, Totally taking your supporters for fools who could be fed with non existent infor and be so gullible to believe every spit from wamba. God is not in it. He was never in it from the beginning. His will will ultimately prevail. Hard luck try next time.

  15. @ ADF that application you are referring to was not before the courts. The Application was requesting that
    1) Chamisa be declared a Winner and
    2) Court order a rerun

    So are you saying Chamisa wanted to be declared a winner of the flawed election process

    1. There was a disjunctive or btwn 1) and 2)

  16. ndangofarira kuti after a very long long time my newsday was fair

    1. Can you also go and read herald

  17. Ngazipere titi pfeeee zvedu mupoverty yedu. Zvakuti bhowa vanotkonga votonga. Zvakutotisungira play pama mbindauko edu izvi

  18. chematenganzungu

    This Kanengoni guy proved too much for mdca.kaivarova left right and centre.dai kurikuboxing taiiti knock out chaiyo,mfana akanyanya uyu.chamisa tsvaga basa nguva ichipo

  19. kutaura kwamusina kuswera answer dzenyu dzinotaura kuti hamuzive mutemo mirirai mangwana

  20. Kanengoni is the man of the moment…soft voice but deep facts..Tavani just agrresiive but lacking on substance

    1. Spot on. Thabani too much confidence but no substance

  21. kid marongorongo

    all the lies were being praised by the bigger number from the diaspora. They could magnify these unfounded lies fomented by this paper but as for the con court they could not lie to anyone because it was broadcast live unless they lie that it was fiction

  22. Kanaengoni and Uriri carried the day!!! Arrogance costs Mpofu and company

    1. tozvireva kunaani

      Eloquency in presentation is not evidence.

  23. mazanu hapana zvamungatiudza. Huriri hwenyu hwava KUKUVAVAI MEGA.

  24. The whole idea is to prove that ZEC did not announce accurate and credible results.ZEC admitted that there were errors so it means the result should be nullified. It’s up to the con court to open the ballot boxes.
    By opening the ballot boxes MDCA would have consented to a recount which they don’t want.The fact that ZEC admitted there were errors no matter how small the margin they have a case to answer period.

  25. What was the secret weapon? Chamisa is playing a dangerous game with people’s minds. He has proven that he is prepared to usurp power by hook or crook. His figures also defy logic. For example, he claims that in Mashonaland Central, less than 160 000 had voted by 5pm, but at the end of voting, more than 450 000 votes were recorded, meaning about 300 000 voted in 2hrs. From the records provided, Mash Central has 562 000 registered voters, so does it mean that by 5pm, voter turnout was only 28%?n Then he claims that he actually won the vote by 2.67m opposed to mnangagwa’s 2.0m, (total 4.7m voters), which equates to a voter turnout of 84%, yet one of his central claims is that voter turnout according to ZEC was 72% (total 4.03m voters)… so how then would he explain the extra voters according to his numbers?

  26. Secret weapon turned out to be the secret weapon of self-destruction. Mupfana kanengoni akabata vanhu ma’major parts’. Eloquence is not primary evidence Advocate Mpofu.

  27. The secreat is with in ZEC it self the MDC should get the full voters roll and actual results from ZEC there you shall find the dead bodies…

  28. Why did ZEC fail to present the 16 V11 forms mentioned by MDCA and yet they are the custodians of the Materials.

    1. Its MDCA who should give evidence not ZEC. MDCA has got the V11 forms why didn’t they use them to show the court that these V11 had the same signatures? They chose not to why coz they had different signatures. That was their wepon if they had the same signatures they could have shown them to the court, but they didn’t why coz they had different signatures.If there were serious they could have ordred the opening of ballots for those 16 polling stations.

      1. chazvakanakira nyika ndeyedu tose nhamo ikauya inongotibata tose inflation ikauya inobata tose mabasa akashaikwa toshoya tose mari kubank tongoishaya tose nemapferorist aya saka hapana hapana these pferorist wl suffer most becoz most of yu hamugoni kutsvaka mari thats y gret winning margin yenyu iri kumamisha coz yu don even know kuti nyika inobudirira sei ……kungowawata zvisina maturooo guys vanoda budiriro munyika don waste yo time kutaura nevanhu vasinga fungee

  29. It was a show for the Mdc sponsors and supporters to say to them we have tried. I thought there was a really explosion to say polling stations A,B C and such vote were stolen. How can you give a 400000 teacher scenario .Who said all teacher were going to vote for MDC.What a wait of time

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