Fidelis Munyoro Chief Court Reporter
The Constitutional Court yesterday took on Advocate Thabani Mpofu, lawyer of the MDC Alliance leader Nelson Chamisa, the task of developing a case on alleged secondary evidence and ignoring primary evidence and clear court proceedings.
This would require the opening of sealed ballot boxes for the inspection of the elections in the presidential election to assess whether the allegations of rigging contained water.
Adv Mpofu, who also admitted that his client's application had been submitted too late, had a scorching time trying to make a case for secondary accusations before he tried to appeal to the court's mercy, saying that the hospitalization of two of his children had impaired his preparation for the court.
President Mnangagwa won the election with a 50, 8 percent according to the results announced by the Zimbabwe Electoral Commission on August 3, before the figure was revised to 50.67 percent.
Mr Chamisa was left behind with 44.3 per cent in an election of which Zanu-pf demanded two-thirds of the parliament.
According to him, Adv Mpofu tried to destroy the elections on the basis of mathematical and statistical evidence and failed to provide original evidence to support his case, which led Major Judge Malaba to grind him for lack of seriousness.
Chief Judge Malaba noted that the evidence was not confirmed with original and credible documents.
He asked Adv Mpofu to explain why he was building up the case of secondary evidence to challenge President Mnangagwa's victory over last month's harmonized elections when primary evidence was available.
Asked the Chief Justice: "Why base his case on secondary evidence when there is original and primary evidence?"
In his reply, Adv Mpofu said that it was not necessary to refer to the primary proof when ZEC acknowledged the mistakes it made three times.
"It is up to ZEC to verify the numbers that are based on figures verified on the basis of the data," said Adv Mpofu.
He said his client could not rely on the ZEC data, which he described as a poisoned calyx.
Still unconvinced with explanation, Chief Justice Malaba gave urgent advice to Adv Mpofu to explain why he did not follow what the law allowed him to do.
"The law allows you to have original documents signed by the polling stations in the presence of observers.
"Why do you want us to discuss the issue of secondary evidence," he asked, adding that the primary evidence would have given him the opportunity to see if legal obligations were being complied with or not.
Adv Mpofu said that the election residue in the polls was useless because it was manipulated after the election process.
Chief Justice Malaba said the court could not act on generality, but acts on evidence and facts.
He reminded Adv Mpofu that the law allowed him to request a recount within 48 hours of the declaration, a way that he did not use either.
"We want to know the facts and make a decision The decision of the court is not speculative," said the chief judge.
The chief judge said it was important to follow the law and the lawyer knew this, but chose to ignore the importance of the election residues.
Adv Mpofu also wanted to rely on the EU report, which had been removed from history.
The court rejected the document as useless.
Lawyer Lewis Uriri, who defended the case for President Mnangagwa, said that there was no valid request to justify the elimination of President Mnangagwa's election to the highest office in the country.
"The numbers that are trusted are a lie," he said. There is no evidence for the court to substantiate the accusations.
"What the day carries in this nature is evidence that is receptive and credible."
Adv Uriri said that the allegations against his client were of a criminal nature, which is why Mr Chamisa had to prove his case beyond reasonable doubt.
"The evidence must be clear and in accordance with the skillful rules of analysis," he said.
Adv Uriri said that the Chamisa petition contained no direct evidence as required by law.
He said that if the evidence of Chamisa suffered a credibility crisis, the fact that the documents that they wanted to appeal to were not original and permissible in court.
He said that ZEC was the custodian of the election residue in terms of the law and Chamisa had to request the re-vote of the votes within the prescribed 48 hours.
"Another remedy that was available was to approach the Electoral Court to deny the election residue," he said.
Adv Uriri quoted a case in which the court ruled that there were limited grounds for refusing an applicant access to elections.
Adv Thembinkosi Magwaliba also argued.
He insisted that the small error on the figures as revised by ZEC could not justify the judge to destroy the elections in a petition that lacked facts and was improperly brought to court.
"The court needs all the facts to make an informed decision," he said. "The court must rely on violations with empirical evidence."
He urged the court to reject the petition for lack of merit.
Responding to the arguments of President Mnangagwa and ZEC, Adv Mpofu stressed that the Apex Court should accept ZEC's figures.
In this connection, he said that President Mnangagwa can not be declared the winner of the presidential election of 30 July.
Adv Mpofu also admitted that he had not done well in one of the papers he had registered because of his children's illness and the limited time in which he had to prepare the answered statement and argumentation heads.
In his petition, Chamisa demanded election fraud and malpractice during the elections.
He wants the court to set aside the victory of President Mnangagwa and claims that the official presidential results announced by the Zimbabwe Electoral Commission (ZEC) are not credible and that he will declare his client winner or order a new election.