Full text of ConCourt judgment on the Zimbabwe election request …. what the judges said – Nehanda Radio



Ultimately, the General Court reached the conclusion that the applicant did not provide clear, sufficient, straightforward and credible evidence that the irregularities alleged to have disrupted the electoral process were material. The applicant did not prove the alleged irregularities as factual.

Justice Luke Malaba
Justice Luke Malaba

CCZ 42/18

NELSON CHAMISA Applicant

and

EMMERSON DAMBUDZO MNANGAGWA First defendant

JOSEPH BUSHA second defendant

MELBAH DZAPASI third respondent

NKOSANA MOYO fourth defendant

NOAH MANYIKA Fifth defendant

HARRY PETER WILSON Sixth defendant

TAURAI MTEKI seventh defendant

THOKOZANI KHUPE Eighth respondent

DIVINE MHAMBI Ninth respondent

LOVEMORE MADHUKU Tenth defendant

PETER MUNYANDURI Eleventh respondent

AMBROSE MUTINHIRI Twelfth defendant

TIMOTHY JOHANNES CHIGUVARE Thirteenth Respondent

JOICE MUJURU Fourteenth respondent

KWANELE HLABANGANA Fifteenth respondent

EVARISTO CHIKANGA sixteenth defendant

DANIEL SHUMBA Seventeenth respondent

VIOLET MARIYACHA Eighteenth respondent

BLESSED KASIYAMHURU Nineteenth respondent

ELTON MANGOMA twentieth respondent

PETER GAVA Twenty-first respondent

WILLARD MUGADZA Twenty second defendant

ZIMBABWE ELECTORAL COMMISSION Twenty-third third respondent

THE PRESIDENT OF ZIMBABWE

ELECTORAL COMMISSION Twenty-fourth respondent

THE HEAD EXECUTIVE OFFICIAL OF THE

ZIMBABWE ELECTORAL COMMISSION Twenty-fifth respondent

DECISION

MALABA CJ: This is the unanimous judgment of the Court. However, it should be noted that it does not contain the full reasons for this. These will be issued in due course.

On 30 July 2018, the Republic of Zimbabwe held harmonized parliamentary, local and presidential elections. The applicant and the first defendant, together with twenty-one others, participated as presidential candidates.

On August 3, 2018, the 24th respondent, acting in terms of Article 110 (3) (f) (ii) of the Elections Act[[[[chapter 02:13]("The Law"), the first defendant, as the candidate who received more than half the number of votes cast, has been appropriately elected as the President of the Republic of Zimbabwe, with effect from that date.

The applicant was disadvantaged by the first defendant's statement that he had been duly elected as President of the Republic of Zimbabwe. He filed an application within the meaning of Article 93 (1) of the Constitution of Zimbabwe Amendment (No 20) 2013 ("the Constitution"), by which he validates the election of the first defendant as President of the Republic Zimbabwe disputed. Article 93 is worded as follows:

"93 Challenge in presidential elections

(1) Subject to this article, an aggrieved candidate may challenge the validity of an election of a president or vice-president by submitting a petition or application to the Constitutional Court within seven days of the date of the declaration of the election result. .

(2) The election of a Vice-President can only be contested on the grounds that he or she did not qualify for election.

(3) The Constitutional Court must hear and determine a petition or petition within the meaning of paragraph (1) within fourteen days of the petition or petition, and the decision of the court is final. "

The applicant claims the following exemption –

  1. A declaratur such that –

(i) The presidential election of 2018 was not carried out in accordance with the law and was not free and fair.

(ii) The election results announced by the Commissioners of the Zimbabwe Electoral Commission on 2nd of August 2018 and the accompanying declaration of the same date by the President that Emmerson Dambudzo Mnangagwa must be regarded as the duly elected President of the Republic of Zimbabwe with effect from 2 November 2005nd of August 2018 is in terms of Article 93 (4) (b) of the Constitution of Zimbabwe as read together with Section 111 (2) (b) of the Electoral Law[[[[chapter 02:13]declared unlawful, of no force or consequence and destroyed accordingly.

(iii) The applicant, Nelson Chamisa, has declared the winner of the presidential election on 30 December under Section 93 (4) of the Constitution of Zimbabwe.th from July 2018;

  1. An order to the next effect –

(i) The 25th respondent publishes in the Government Gazette this decision and the declaration by the applicant to the office of the President of the Republic of Zimbabwe; alternative –

(ii) In accordance with Article 93 (4) (b), an election shall take place within 60 days of this decision at the offices of the President of the Republic of Zimbabwe; and

(iii) The costs of this application are borne by the Zimbabwean electoral commission and such a respondent who opposes this.

The application was rejected by the first, fifth, sixth, seventeenth, eighteenth, twentieth, twenty-third, twenty-fourth and twenty-fifth respondents. For reasons set out in the full judgment, the court ruled that the opposition documents submitted by the fifth, sixth, seventeenth and twentieth respondents –

  1. not properly for the Court, and
  2. should be deleted from the record at no cost.

The sixth and eighteenth respondents indicated that they would abide by the Court's ruling.

Whether the application for the Court is correct

The respondents took different points in limine including the fact that the application submitted by the applicant was not properly pending before the Court. This was because, although submitted within seven days, as provided for in Article 93 of the Constitution, the application was served on respondents on the eighth day in violation of Rule 23 (2) of the Constitutional Court 2016 rules ("the Rules of Procedure"). ").

The constitution does not refer to weekdays but days. This must be understood as seven calendar days and includes Saturdays and Sundays.

In terms of r 23 (2) of the Constitutional Court rules, 2016, the application shall be deposited with the registrar and served on the defendant within seven (7) days after the declaration of the result of that election.

The first defendant was appointed a properly elected president on 3 August 2018. In terms of s 93 (1) of the Constitution as read with r 23 (2) of the rules of the Constitutional Court, the applicant had until 10 August 2018 to submit the application to the respondents and to handle it.

The Applicant appears to have taken note of the calculation of the days and time limits prescribed by the Constitution and waited until the last day to submit his application shortly before the conclusion of the Clerk of the Constitutional Court on 10 August 2018. He had the right to do so.

After doing this, the applicant was then confronted with a new obligation to serve the process on the same day to all respondents. The applicant can only do this via the sheriff of Zimbabwe in terms of r 9 (7) of the rules of the Constitutional Court.

The applicant indicates that he has done this. The sheriff had to serve the same evening until 22:00 in accordance with the rules. The sworn statements submitted by the respondents show that the applicant had in fact tried to serve on 10 August 2018 under his own power and without the sheriff's assistance.

It is often the case that the application was ultimately submitted to the respondents on 11 August 2018, outside the timeframes defined in the Constitution and in violation of the provisions of the Constitutional Court Rules.

The same restriction applied to the respondents who were served with the application on Saturday 11 August 2018. The notices of opposition would have been filed within three days of that date, being August 14, 2018.

In terms of s 336 (2) of the Constitution of Zimbabwe:

"Subject to this Constitution, when the time for doing something in terms of this Constitution ends or falls on a Saturday, Sunday or official holiday, it takes time and the case can be done on the following day which is not Saturday, Sunday is or holiday. "

The dies induciae After the expiring on August 14, 2018, a public holiday in Zimbabwe, the opposition notices were to be filed on the next working day thereafter, being August 15, 2018. They were duly and duly filed with the registrar in terms of the law.

The applicant has clearly violated the rules of the Court and submitted a request for defective application. However, due to the importance of the case and the public interest, the Court has jurisdiction to approve non-compliance with the rules in the interest of the case-law.

An application for the condonation of this non-compliance, although the respondents, who were contradicted by the respondents, were made for the applicant. This court is prepared to honor the application and grants this because of the importance of the case and the public interest involved.

The other points in limine raised by the respondents, will be fully dealt with in the main judgment.

In substance, the applicant claims that the first defendant did not win the elections because in the run-up to the elections the twenty-third and twenty-fourth respondents were involved in a litany of constitutional and electoral violations, which had the effect of undermining the proper conduct of the elections. Some of the alleged violations relate to –

  • Lack of independence from the Zimbabwe Electoral Commission;

2 Failure of state media to comply with S 61 (4) of the Constitution;

3 Behavior of traditional leaders and false security elements;

  • Non-compliance with general principles that influence the course of elections;
  • ZEC & # 39; s responsibility to compose voter roles;

6 Wearing partisan clothing;

  • Failure to provide a full Voter role;
  • Design of presidential ballot paper;

10 Confirmation of polling station returns (V11 forms) on the outside of polling stations;

11 postmarks;

12 Count of presidential votes;

13 Unjustified influence, threats, injury, damage, loss or damage to voters; and

14 Bribery, delivery of seed and fertilizer packages.

The Court notes that the Supreme Court of Zimbabwe has in recent months seized and resolved issues relating to –

  1. The behavior of voting by letter;
  2. The design of the presidential vote;
  • The release of voters 'roles with photo' s from voters to the parties; and
  1. the obligation of the 23rd respondent to facilitate voting by election officials on election day with election tasks.

These judgments are not yet known and the Court will therefore not at present address the applicant's arguments concerning these issues.

The Court will also, in this abridged version of its judgment, not deal with the applicant's total allegations, as mentioned above. This will happen in the main opinion.

The standard of evidence in election papers

In terms of authorities of these and other courts, the declaration of results in terms of s 110 ((3) (f) (ii) of the Act creates a presumption of validity of that statement.

The burden of proof and the burden of proof in this application lies with the applicant and it is up to him to prove to the satisfaction of the Court that there are irregularities in the course of the election justifying the requested facility.

The general position of the law is that no election is declared invalid because of an act or omission by a returning official or another person in violation of his official duty in connection with the election or otherwise of the applicable electoral rules, if it appears to the Court the election largely proceeded according to the law on elections and that the act or omission did not affect the result.

As an exception to this general position, the Court will annul an election if it is convinced of the evidence provided by an applicant that the legal violations are so great that they led to significant non-compliance with existing electoral laws.

Moreover, the Court must be convinced that this violation has affected the results of the elections. In other words, an applicant must prove that the entire electoral process is so fundamentally flawed and so badly conducted that it can not be said to have been carried out in substantial conformity with the law. Moreover, an election result obtained through fraud would necessarily be declared invalid.

It follows from the foregoing that the Court invalidates a presidential election only in very limited and specific circumstances if:

  1. The results are a product of fraud.
  1. The elections were so bad that it could not be said that they met the law to a considerable extent.

It is up to the applicant to prove to the satisfaction of the Court that the election was carried out in a manner significantly below the legal requirements of a valid election and that the result was materially affected by a cancellation of the result or invalidation of the election. . .

THE APPLICANT 'S NEED TO HAVE PRODUCED SOURCE EVIDENCE

A significant part of the applicant's challenge related to the result and the figures announced by the electoral commission. Accusations were made that the announced results were incorrect and did not correspond to the real will of the people of Zimbabwe.

In addition, the applicant alleged irregularities regarding voter patterns, return of the electoral committee, inflation of votes, votes and votes on the mind, and other violations which will be dealt with. In short, there would be manipulation.

The applicant has made general allegations against the first defendant. No direct allegations of personal manipulation of the trial against the first defendant were made. All accusations were made without specificity and specificity. This would have been necessary to prove allegations of complicity to the Election Commission of Zimbabwe by the winner of the election, who would be the deliberate beneficiary of the allegedly inappropriate election.

However, if the applicant had proved that the Zimbabwean Electoral Commission had committed irregularities and complied with the legal requirements of such a petition with regard to the required standard of proof, this would be sufficient to invalidate the election even if the first respondent.

The applicant also made various claims concerning irregularities against the Zimbabwe Electoral Commission in connection with the fact that it did not fulfill its legal obligations. The applicant did not provide any evidence or evidence.

The best proof in this case would have been the content of the ballot boxes themselves. That is the primary source certificate. Proof of the content of the ballot boxes in relation to the notices by the Zimbabwe Electoral Commission and the evidence that the applicant was aware of, the Court would have given a clear picture of any irregularities or malpractice of the election. Such proof has not been put forward by the applicant in support of his allegations.

The electoral law is designed to protect the vote. The protection of the ballot by every citizen who participated in the elections is of fundamental importance. It is one that the Court must guard carefully.

The possibilities for a disadvantaged candidate are intended to ensure that he or she has all the evidence available to him or her to assist the court.

It follows that when the result was declared in the early hours of Friday, August 3, 2018, he knew he was a disadvantaged candidate. He may not know the exact or precise reason why he was offended, but the legislators in their wisdom created a way for the applicant to ensure that he had all the evidence to prove his case if he wanted to challenge his rights to the result. Time was on his side to obtain such evidence of the election residue.

The legal remedies of the applicant to gain access to the ballot box and election residue are included in the Elections Act ss 67A and 70. Under the 67A he could have demanded a recount of the votes within forty-eight hours; while he was under 70, he could have approached the Electoral Court for an order to deny the ballots.

These remedies are designed to protect every disadvantaged candidate. They ensure that no decision is made to make unnecessary disputes against the validity of an election. They also ensure that a litigant who is filing a lawsuit has the necessary evidence to prove his or her case. In this way, any doubt as to whether the election itself had proceeded correctly on the election day and whether the true expression of the will of the electorate had been announced would have been addressed by the parties before the request was made.

The remedies provided for in the electoral law not only protect the right of an aggrieved candidate for information, but also lead him to the source of the type of evidence needed to prove the accusations of irregularities committed by the Zimbabwe electoral commission in the course of the elections. These are therefore no remedies for the benefit of the respondents. They are meant to protect the rights of those who are hurt by the results of the presidential election.

Armed with the evidence, either of a recount in which the figures would be inaccurate, or an analysis of the contents of the unsealed boxes, the applicant had a clear and indisputable picture of the outcome of the election. He would have been clear whether any misconduct and irregularities with regard to the votes actually cast and the announced results would have been substantiated. He chose not to exercise this right.

The electoral law protects the voters and the candidate in the process. This is from delivering the ballot papers to the polling station, to collecting the ballot, to voting in the secret in the box, to counting the ballots and sealing the ballot boxes at the end of the election.

The applicant was on a large scale to have its polling stations at every polling station in the country. Observers were also free to participate in the process. The applicant's agents would have noted that the voters arrived, got the ballots as applicants for these documents for the presidents, then secretly went to the booths and counted the votes in their presence when they were there. At the end of the count all agents present would have signed the V11 forms if they wanted to and would receive copies.

If the applicant had placed before the Court, the V11 from all polling stations where he could have had polling stations, a simple analysis of those V11 forms against the V11 forms in the ballot boxes would simply have done the following:

(a) He would have asked questions about the number of votes for a particular electoral committee or constituency,

(b) It would have addressed every issue of over-allocation;

(c) It would have invalidated allegations of voter failure after a certain time, for example what would have happened in the central province of Mashonaland;

(d) It concerned issues of differences in voting patterns and numbers of votes for parliamentary and presidential elections,

  • It would also have addressed problems of improbability of comparable and identical results at polling stations.
  • Questions were raised about the accuracy of the result and the information provided by the Commission.

In essence, the full challenge for the correctness of the figures with regard to the outcome of the elections would have been easily resolved. If there was an irregularity, it would have been easy to detect.

In pressing the reason why the primary source certificate was not submitted, the candidate's therapist gave a bald and unfounded claim that the election residue had been tampered with. Counsel for the applicant argued that the residue was a poisoned calyx. In other words, by the time you tried to have unsealed the ballot boxes, they would already have been manipulated. It was argued that such an exercise would have been useless. The Zimbabwean Election Commission argues that the prescribed procedures have been complied with.

Logica therefore dictates that if the applicant and his agents (or any other political candidate whose agent had the forms) had the V11 forms in custody, they could easily compare them with the residue and further compared them to the declared result.

Even assuming that the applicant had no agents in each polling station, an example of a constituency could have been used. If there were cases where for some reason the forms were not registered as they should have been, the Court should have provided specific evidence explaining the gaps or inconsistencies. Such evidence could then be used to support the accusations of malpractice against the Zimbabwean Election Commission. Whether the evidence provided was sufficient to prove the allegations of irregular conduct against the Zimbabwean electoral commission would have become a separate point of determination.

In the second case, the applicant argues that the substance of his case even exists without primary evidence. It was argued that an attack on the correctness and correctness of the figures produced by the Zimbabwean electoral commission itself would suffice to invalidate the election. The Zimbabwean election committee systematically explained and answered the allegations against it.

IN THE CASE PUT FORWARD BY THE APPLICANT OF IRREGULARITIES

The applicant made several general accusations of abuses in the elections against the election committee of Zimbabwe. He made a surprising claim that these generalized accusations would be sufficient to prove the case without resorting to the primary source certificate.

The Zimbabwean electoral commission nevertheless took the time to analyze the accusations against it and provided clear and tangible evidence to refute the accusations, which meant that it had to be presented to the applicant. burden of proof who was on him. The burden of proof to prove that the case is not on the accused. The accused person does not have to prove his or her innocence. The respondents only have to respond in this case.

Signed and non-annotated V11 forms

The Zimbabwean election committee proved by the produced V11 forms that the accusations that some forms were signed and not populated were incorrect, because there was apparently a deliberate fabrication of evidence with the intention of misleading the court. Without access to the sealed ballot box residue, this claim is simply refuted.

Disenfranchisement of 40,000 teachers

The petitioner claimed that approximately 40,000 teachers were denied their right to vote on the election day and that this directly affected the result. The claim was very general and not substantiated. It is not clear how the figure of 40,000 was calculated.

There was no evidence from the teachers themselves that they were registered voters who wished to exercise their voting rights and were placed against their will. On the contrary, the Zimbabwean election committee showed that some teachers have deliberately opted not to vote to be posted at stations where such a right could not be exercised.

The constitution gives every Zimbabwean citizen eligible to exercise a right to vote. It is not an obligation under our constitution to vote. There was no evidence how many of these registered voters were. There was no evidence of the effect of this claim, even if it turned out that this would have led to the result. There was no guarantee that every teacher would have voted for the applicant.

The accusations regarding ghost call stations or polling stations made at the time of the vote had no specificity and specificity. In any case, they were refuted by the evidence submitted to the twenty-third and twenty-fourth respondents. And these are the kinds of accusations that would have been easily proved by the evidence in the sealed ballot boxes.

THE ELECTION RESULT AND THE ADMISSION BY ZEC

On 3 August 2018, the Zimbabwean electoral commission announced that Emmerson Dambudzo Mnangagwa had been proclaimed Zimbabwe's suitably elected president after he had obtained the required 50% plus one vote from the elections. The statement has been drawn up in terms of section 110 (3) (f) (ii) of the Electoral lawthat is:

"(f) subject to paragraph (h), after the number of votes each candidate has received, as represented in each constituency, is summed together in terms of paragraph (e), the President of the Commission (or, in his or her absence), the vice-chairman or, in his absence, a commissioner appointed by the chairman):

(i) where there are two candidates, declare the candidate who has received the largest number of votes to President of the Republic of Zimbabwe as soon as the date of that declaration has expired; or

(ii) when there are more than two candidates, declare the candidate who received more than half the number of votes duly elected President of the Republic of Zimbabwe with effect from the date of that declaration; or

(iii) if there are more than two candidates and no candidate has obtained more than half the number of votes, he shall declare without delay that a presidential election shall take place on the date set by the President in Article 38 (1) (a) ( (iii) (that is, a fixed date of not less than twenty-eight and not more than forty-two days from the day of the vote or the last voting day, as the case may be, of the original election):

Provided that the Electoral Court, at the request of the Commission, can extend the deadline;

… "

The statement as set out in these legal provisions is the legal event. This is for every candidate who reaches the threshold of 50% plus one vote. Whether a candidate has received 50% plus one vote of the total number of votes cast is a matter of fact. The statement can only be changed or changed by this court in terms of s 110 (3) (i), which is:

"(i) a statement by the President of the Commission (or, in his absence, the Vice-President or, in his absence, a Commissioner appointed by the Chair) on the basis of paragraph (h) [shall] irrevocable, subject to reversal of the request to the Voter that such a statement is destroyed or that the procedure relating to that election is declared null and void; ".

The statement itself is final, depending on the requirements for reversal. The Zimbabwean election committee has critically admitted that the exact figures were incorrect and that minor adjustments were made after errors were corrected in the recording of data. It was argued that this had influenced the figures for the first respondent's profit by 0.1%, but had no influence on the result of the election.

It is important to understand what the outcome of an election is. The result of the election is the statement of a winner who has reached the 50% plus one vote, nothing else. All votes after that point do not affect the outcome of the election.

The amendment by the Zimbabwe Electoral Commission has no influence whatsoever on the result of the elections and the statement as interpreted in this case. In fact, an error in counting and changing numbers is provided for in the law itself, which means that the provisions of s 110 fall under those of 67A. The law allows the adjustment. If the applicant had been disadvantaged by counting and using the figures, he should have made use of the remedies that were used by the articles of association to obtain the relevant evidence.

In this case, according to us, the applicant needed more proof than just the recognition by the electoral commission in Zimbabwe of the inaccuracy of the figures to show that the result was affected. If that were the case and there was in fact no winner with 50% + 1 vote, there would be a reason for a re-run or other suitable means. The applicant chose not to follow this road.

CONCLUSION

Ultimately, the General Court reached the conclusion that the applicant did not provide clear, sufficient, straightforward and credible evidence that the irregularities alleged to have disrupted the electoral process were material. The applicant did not prove the alleged irregularities as factual.

It would be unnecessary in the circumstances to answer questions of irregularities. As already indicated, it is an internationally accepted principle of election disputes that an election is not easy to explain. There is a presumption or validity of an election.

This is because as long as the election was conducted in terms of the Constitution. It is not for the Court to decide elections; it is the people who do so. It is the duty to strive in the public interest to sustain. Therefore, the application ought to be dismissed.

ORDER

In the result, the following order is made –

(1)     The application is dismissed with costs.

(2)     Emmerson Dambudzo Mnangagwa was duly elected President of the Republic of Zimbabwe.

(4)     In terms of section 93(4)(a) of the Constitution of Zimbabwe EMMERSON DAMBUDZO MNANGAGWA is duly declared the winner of the Presidential election held on the 30th of July 2018.

GWAUNZA DCJ: I agree

GARWE JCC: I agree

MAKARAU JCC: I agree

HLATSHWAYO, JCC: I agree

PATEL JCC: I agree

BHUNU JCC: I agree

UCHENA JCC: I agree

MAKONI JCC: I agree


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