ONE of the biggest takeaways from the Constitutional Court (ConCourt) ruling last week against MDC Alliance presidential candidate Nelson Chamisa’s application to have Zanu PF candidate Emmerson Mnangagwa’s victory overturned on the grounds of alleged rigging and other electoral malpractices is that courts have their own standards, high standards.
Linked to that, another takeaway is that the ConCourt has its own clear and stringent rules − and necessarily so as the last court of appeal in the land. So to be in the ConCourt is not like being at a political party rally where party supporters cheer everything that is said without scrutiny.
The ConCourt operates at a different and higher level than kangaroo courts that are found at rallies.
What is passable at rallies as evidence of vote-rigging is not admissible in the ConCourt − and any other court for that matter − as proof of such.
This is where Chamisa’s case fell and failed, notwithstanding that the ConCourt had to bend over backwards to exercise its discretion of hearing the petition after Chamisa’s legal counsel, Advocate Thabani Mpofu, admitted in open court that they had served papers on the respondent a day later than the legally stipulated period of within seven days.
Had the court not used its own discretion, the application would have failed on that one technicality, and Chamisa would have had no one to blame for that, but himself and his lawyers.
That is why Chief Justice Luke Malaba repeatedly cited court rules when he was quizzing Chamisa’s lawyer, but some people, out of ignorant bias for Chamisa, misconstrued that as being unfair and unjust questioning.
So, if anything, the ConCourt was most accommodative.
The court actually did Chamisa a big favour, but seeing that is beyond the horizon of ignorant party zealots.
But this was no substitute for concrete evidence. Observed MDC supporter Aquilline Nazare: “I wasn’t impressed from when he (Chamisa’s lawyer) produced the blank, unsigned V11s, then went on to say that ‘evidence ‘ was not needed at all.”
Indeed, it looks like they don’t know whether they are coming or going.
Having initially accepted the ConCourt decision that Mnangagwa had duly won, then abruptly turning around to reject it, they are now all over the place, saying they will appeal to the African Commission on Human and People’s Rights, another exercise in futility which will bring more tears and no joy to their supporters.
And Chamisa’s lawyer Mpofu openly admitted to the judges that he went to court under-prepared because his two children had been taken ill the previous night.
Link that admission to the final verdict and it goes a long way to explain why Chamisa eventually and inevitably lost.
Another factor outside the legal realm which could also have contributed to Chamisa’s loss in court is that they tend to talk too much and too early.
This is how they sold out their court strategy to Zanu PF lawyers, who thus knew what was coming well in advance and thus went to the ConCourt well armed with strong and convincing responses.
In this game of politics, you hold back; you don’t reveal what’s up your sleeve until the opportune or very last moment; you don’t play all your cards on the table; you don’t play to the gallery to impress party fanatics.
Indeed, there is deficit of strategy.
Remember Chamisa boasting at rallies that he was being supplied information on rigging by State intelligence sources?
I am inclined to believe it was another Baba Jukwa episode of false intelligence to make him lose focus.
Observed Gugulethu Mbele: “Ko (If so), why not act on the intelligence silently like Crocodile (Mnangagwa)? Why does the enemy have to know that you are about to breathe?”
This political naivety − not the unproved rigging − is what made the MDC Alliance lose both the harmonised elections and the ConCourt case.
Not that I hold any brief for the MDC Alliance, but I continually pointed out that this political showmanship, bravado and empty machismo since February − when Chamisa took over following the death of Morgan Tsvangirai − would result in tears, but was insulted for that.
Not that I mind at all being insulted because it goes with the job of being a columnist who writes opinion pieces, but the MDC Alliance leadership seemed to thrive from such insults spat at those expressing contrary views.
Wrote George Chingarande this week: “The big question is: Who will rescue the CCC (Chamisa Chete Chete) brigades from their moral and intellectual depravity?
How will they cleanse their tongues of all those unprintable words?”
So Chamisa’s case bombed out both procedurally − through late service of papers to Mnangagwa; and evidentially − through failure to produce adequate proof to back his allegations.
The court is essentially about procedure and evidence, but Chamisa, despite being an officer of the court as a registered and practicing lawyer, came short on both.
No wonder the ConCourt slapped Chamisa with all the court costs.
This reminded me of retired Zimbabwean goalkeeper Bruce Grobbelaar’s lawsuit which monumentally backfired on him, leaving him completely bankrupt, totally broke.
In November 1994, Grobbelaar was accused by the British tabloid newspaper The Sun of match-fixing during his time at Liverpool.
After two successive trials, in both of which the jury could not agree on a verdict, he and his co-defendants were cleared in November 1997.
Grobbelaar later sued The Sun for libel and was awarded £85 000 in damages.
The Sun appealed, and the case was eventually taken to the House of Lords (the then British equivalent of our own ConCourt), where it was found that, though the specific allegations had not been proved, there was adequate evidence of dishonesty.
The Lords slashed Grobbelaar’s award to a nominal £1, the lowest libel damages possible under English law, and ordered him to pay The Sun’s legal costs, estimated at £500 000.
Grobbelaar was unable to pay the costs and was declared bankrupt.
However, in all fairness, it should be pointed out that after some time, Grobbelaar was cleared of involvement in the alleged match-fixing, but this only served as a technicality because his financial ruin was not reversed.
No wonder Lizwe Ntuli had to express his shock thus: “So the movement created expenses it cannot pay?
And now it is begging for donations?”
Yes, the MDC Alliance is running around looking for money from well-wishers on social media.
The point I am making is that suing on shaky and dubious grounds like saving face when you know you lost, instead of doing the decent and honest thing by graciously admitting defeat, and going all the way to the Concourt can boomerang like it did on Grobbelaar − and it has backfired on the MDC.
The court affords little or no protection to those who bring, as Chief Justice Malaba said, “bald and unsubstantiated allegations” before it − and one of those penalties is that your bear 100% of the court costs.
Now Chamisa − like Grobbelaar before him − is facing a legal bill from Mnangagwa for his court costs, with the Zimbabwe Electoral Commission, as the other respondent in the failed case, yet to bill him.
Is Chamisa − after leading the party to loss − now plunging it into liquidation?
No wonder professed MDC supporter Tanyanyiwa Mugwiji observed this week: “The more I listen to Chamisa, the more I miss Tsvangirai.”
A rescue operation is in order.