THE Constitutional Court (ConCourt) of Zimbabwe last week upheld the election of Emmerson Mnangagwa as the duly elected president of Zimbabwe. The decision came after a legal challenge by Nelson Chamisa of the MDC Alliance. I focus here on the crucial issue of the standard of proof in election challenges.
guest column: Alex T Magaisa
The main parties were Chamisa (applicant), Mnangagwa, and the Zimbabwe Electoral Commission (main respondents). The ConCourt dismissed points in limine raised by the main respondents who argued that the petition had been filed out of time.
On the merits, the ConCourt dismissed the application on the ground that the applicant had not presented sufficient evidence to void the election. The ConCourt broadly dismissed allegations of election irregularities, but did not give reasons in the abridged judgment.
On analysis, the ConCourt’s reasoning regarding the standard of proof required to void an election is unclear. It concludes that the ConCourt will void an election in very limited circumstances. First, when the results are a product of fraud and second, when elections were so poorly conducted that they could not be said to have been in substantial compliance with the law.
However, before arriving at this conclusion, the ConCourt’s reasoning is unclear and contradictory. Is it enough to prove substantial non-compliance with the law? Or does an applicant have to prove both substantial non-compliance and that it had an effect on the result? The abridged judgment leaves these questions hanging.
First, the ConCourt states that: “The general position of the law is that an election cannot be voided by 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 electoral rules if it appears to the court that the election was conducted substantially in accordance with the law governing elections and that the act or omission did not affect the result.”
This suggests that as a general rule, an election cannot be voided if there is substantial compliance and the breach did not affect the election result. Thus, an applicant must prove both substantial non-compliance and that it had an effect on the result. This is a tough test.
Having outlined this general rule, the ConCourt went on to describe what it referred to as an “exception”. It stated: “As an exception to this general position, the ConCourt will declare an election void when it is satisfied from the evidence provided by an applicant that the legal trespasses are of such a magnitude that they have resulted in substantial non-compliance with the existing electoral laws.”
This can only make sense as an “exception” if there is no need to prove that the substantial non-compliance also had an effect on the result.
However, in its articulation of this “exception”, the ConCourt stated: “Additionally, the ConCourt must be satisfied that this breach has affected the results of the election.” This suggests that the substantial non-compliance must be shown to have had an effect on the result.
If so, what then is the “exception”, if in both the general rule and the alleged exception, substantial non-compliance must be shown to have affected the result? The difficulty is compounded by the fact that the ConCourt’s conclusion regarding the standard of proof does not say that substantial non-compliance must also be shown to have affected the result.
Hopefully, the ConCourt will provide clarity on this issue in its main judgment. As it is, there is uncertainty on the standard of proof required to void an election.
What standard of proof did the ConCourt apply? Did the applicant have to prove substantial non-compliance only or substantial non-compliance which affected the result?
This is not clear from the abridged judgment. In determining the standard of proof, the court ought to be concerned with giving effect to the constitutional right to vote and therefore establishing the truth of plausible complaints, rather than raising technical barriers.
The opposition and civil society movement in Zimbabwe have long been concerned with the lack of independence of the judiciary.
Setting such a high and unclear standard of proof does little to alleviate such concerns.
Alex T Magaisa is a law lecturer in the United Kingdom, Zimbabwean political strategist, and blogger. He currently lives in the UK.