Read the full judgment of Chief Justice Malaba about Chamisa



The applicant was MDC – Alliance candidate Mr Nelson Chamisa; the first respondent was the winner of the July 30 presidential poll, Zanu-PF candidate-president-elect Emmerson Mnangagwa; respondents 2 to 22 were the other presidential candidates; respondents 23 and 24 were the election committee of Zimbabwe and its president, Justice Priscilla Chigumba; respondent 25 is the Chief Elections Officer.

This is a unanimous judgment of the court. However, it should be noted that this does not currently contain the full reasons. These will be issued in due time when a fully clothed verdict covering all legal issues of the law reports will be considered.

This is a unanimous judgment of the court. However, it should be noted that this does not currently contain the full reasons. These will be issued in due time when a fully clothed verdict covering all legal issues of the law reports will be considered.

On July 30, 2018, the Republic of Zimbabwe held harmonized parliamentary elections, local government and presidential elections. The applicant and the first defendant together with 21 others participated as presidential candidate. On August 3, 2018, the 24th respondent, acting in terms of Article 110 paragraph 3 paragraph F (ii) of the Elections Act, declared the first respondent as the candidate who had received more than half the number of votes cast to be properly elected. as the President 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 of the Constitution of Zimbabwe 2013, which from now on I will contest the Constitution challenging the validity of the election of the first defendant as President of the Republic of Zimbabwe. Article 93 reads as follows: Challenge for presidential elections Subsection (1) Under this section, an aggrieved candidate can challenge the validity of an election of a president or a vice-president by submitting a petition or application to the Constitutional Court within seven days of the date of the declaration of the results of the election.

Subsection 2; the election of the vice president can only be challenged on the grounds that he or she did not qualify for election.

Subsection (3) The Constitutional Court must hear and determine a petition or request pursuant to subsection (1) within fourteen days of the petition or the petition and the decision of the court is final. The applicant is requesting the following exemption, paragraph 1, explaining that:

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

(ii) The election results announced by the commissioners of the Zimbabwean election commission on 2 August 2018 and the corresponding statement by the same day by each chairman that Emmerson Dambudzo Mnangagwa was to be regarded as the duly elected President of the Republic of Zimbabwe with effect from 2 August 2018 , in terms of section (93) subsection (4) paragraph (b) of the Constitution of Zimbabwe as read in conjunction with section (III) paragraph (2) paragraph (b) of the Electoral Act, is declared unlawful, of no force or consequence, put aside.

(iii) That according to section (93) paragraph (4) of the Constitution of Zimbabwe, the applicant Nelson Chamisa declared the winner of the presidential election on 30 July 2018. Point 2. An order for the following effect (i), the 25th respondent in the Government Gazette publishes this order and the declaration of the applicant to the office of the President of the Republic of Zimbabwe.

As an alternative (ii) in terms of section (93) subsection (4) paragraph (b) an election to the President of the Republic of Zimbabwe will be held within 60 days of this order and (iii) the costs of this application will be born by the election committee of Zimbabwe and such a respondent who opposes it.

The application was rejected by the 1st, 5th, 6th, 17th, 18th, 20th, 23rd, 24th and 25th respondents for reasons that will be set out in the full judgment.

The court ruled that the opposition documents submitted by the 5th, 6th, 17th and 20th respondents (i) were not correct in court and (ii) had to be removed from the deed without the costs being ordered.

The 6th and 18th respondents indicated that they would comply with the court's decision. We go to the first question whether the application is correct in court. The respondents included various points in limine, including that the application submitted by the applicant was not properly pending before the court.

This was because, although it was submitted within seven days as provided for in Article 93 of the Constitution, the application was served on the defendant on the 8th day in violation of Rule 23 of Rule 23 (2) of the rules of the Constitutional Court 2016.

The Constitution does not refer to weekdays but days. This means seven calendar days and includes Saturdays and Sundays. In accordance with Article 23 (2) of the rules, the application is filed with the registrar and served on the defendant within seven days of the announcement of the results of that election.

The first defendant was appointed a properly elected chairman on 3 August 2018. In terms of Article 93 (1) of the Constitution, as read in line 23 subsection 2 of the Constitutional Court rules, the applicant had until the 10th of August 2018 to submit and submit the application to the respondent.

It seems to have been familiar with 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 constitutional registry was closed on 10 August 2018. He had the law right to do this.

After doing so, the applicant was then faced with further obligations to serve the process on all respondents of the day. The applicant can only do this via the sheriff of Zimbabwe in terms of Rule 9, Rule 7, of the Constitutional Court rules.

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 affidavit submitted by the respondents shows that the applicant had actually tried to serve on 10 August 2018 under his own power and without the sheriff's help.

It is often the case that the application was finally submitted to the respondents on 11 August 2018, outside the deadlines set in the Constitution and in violation of the provisions and contrary to the rules of the Constitutional Court.

The same restriction applied to the respondents who were added to the application on 11 August 2018. The opposition notices would be submitted on 14 August 2018 within three days of that date. In terms of Article 336, paragraph 2, of the Constitution of Zimbabwe: "Subject to this Constitution when the time of doing something in terms of this Constitution ends or falls on a Saturday, Sunday or on a public holiday, the time and the case will be done on the next day that is no Saturday, Sunday or public holiday. "
The announcements of opposition both had to be filed on the next working day thereafter, being August 15, 2018. They were served twice and properly registered with the central registrar in terms of the law.

However, the applicant has clearly violated the rules of the court and submitted a defective application. Because of the importance of the case and the public interest, however, the court has the power and the approval rules in the interests of justice to approve. A request for retaliation of this non-compliance, although contradicted by the respondents, has been made for the applicant.

This court is prepared to grant the application and grants it because of the importance of the case and the public interest involved. The other points that the respondents put forward will be fully dealt with in the forthcoming judgment. (Merits) Basically, the applicant claims that the first defendant did not win the election due to the fact that the run-up to the election involved the 23rd and 24th respondents in a litany of the constitutional and electoral violations all of which had the effect that the the proper conduct of the elections was undermined. Some of the alleged violations relate to: (i) Lack of independence of the Zimbabwe Electoral Commission (ii) The failure of the state media to comply with Article 61 paragraph 4 of the Constitution (iii) Behavior of traditional leaders and false security elements. iv Non-compliance with the general principles that influence the course of the elections (v) ZEC & # 39; s responsibility for composing voter roles. vi Wearing partisan clothing, vii Failure to provide a complete voter roll. viii Electoral Education, (ix) Design of Presidential ballots Confirmation of polling ballot papers (V11 forms) on the outside of polling stations (xi) ballots (xii).

Counting of presidential vote (xiii) Unreasonable influence, threats, injury, damage or loss to voters xiv Bribery, provisional seed and fertilizer packages.

The court knows that the Supreme Court of Zimbabwe has in recent months seized and resolved issues relating to: i) Code of Conduct vote (ii) Draft of Presidential Voting (iii) Voting of voters with photo 's of voters iv) The parties Obligation of the 23rd respondent to facilitate the voting by officials who are engaged in election tasks on election day.

Therefore, the court will not presently raise the applicant's claims regarding these issues at this time. In this abridged version of this judgment, the court will also not deal with the full allegations made by the applicant, as mentioned above. This will be done in the main judgment. Standard of proof in election request.

In terms of authority of these and other courts, the statement of results in terms of Article 110 paragraph 3 paragraph f (ii) of the Act reacts to a presumption of validity of that statement. The honor and burden of proof in this application lies with the applicant and it is up to him to prove to the court that there have been irregularities in the course of the election.

The general point of view of the law is that no election is validated by the reason 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 election rules, if it is the court appears, the election was carried out substantially in accordance with the law on elections, and electoral absenteeism had no influence on the election result.

As an exception to this general position, the court will declare the election invalid if it is convinced of the evidence provided by the applicant that the legal violations are so great that they led to substantial non-compliance with the existing electoral laws. In addition, the court must be convinced that this violation has influenced the results of the election.

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 seen that it has been implemented in substantial accordance with the law.

Moreover, an election result obtained as a result of fraud will necessarily invalidate the election. The court will invalidate presidential elections in very limited and specific circumstances if: (1) The results are a product of fraud (2) The elections were so badly executed that it can not be said that they comply to a large extent with the law.

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 nullification of the result or invalidation of a result. election. .

The need for the applicant to have produced a source certificate. A significant part of the applicant's challenge related to the results and figures announced by the election committee. 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, retention of the polling station, the inflation of votes, voting, ghost voting, and other violations which will be dealt with. In short, there is manipulation. The applicant has made general allegations against the first defendant.

No accusation of direct manipulation of the trial was put forward against the 1st respondent or claims were made without specificity and specificity. This would be required to prove allegations of complicity by the winner of the election alleged to be the deliberate beneficiary of the allegedly inappropriate election.

If the applicant had proved that the Election Commission had committed irregularities and imposed the legal requirement of such a petition on the basis of the required standard of proof, this would have been sufficient to invalidate an election even if the first respondent was not directly involved.

The petitioner made several irregularities against the Zimbabwean Election Commission, allegedly related to his failure to comply with his legal obligations.

The applicant has not provided any evidence or evidence. The court decides on matters based on facts and evidence submitted to it. In such an application, it is even more important for an applicant to ensure that he or she can fully exercise his or her rights in the field of law to ensure that there is almost no reasonable doubt that allegations of malpractice or, if appropriate, justify fraudulent justification of the court that destroyed the election, along with any vote cast by the millions of Zimbabweans exercising their constitutional voting rights.

The best proof in this case would have been the content of the ballot box itself; that is the primary source certificate. Evidence of the content of the ballot boxes in relation to the announcements by the election committee and the evidence that the applicant himself knew, the court would have given a clear picture of any abuses in the elections, if these had occurred.

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 the person who must guard the court jealous. 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 results were published in the early hours of Friday, August 3, 2018, the applicant might not have known exactly why he had been disadvantaged, but that the creators in their wisdom paved the way for the applicant to ensure that he had already evidence needed to prove his case if he wished to exercise his right to contest the result.

Time was on his side to obtain such proof of the residue. The applicant's legal remedies for gaining access to the ballot box and the election residue are included in the Elections Act under Article 67 (a) and Article 70. Under Article 67 (a), the applicant had within 48 hours demanded a recount of the votes while invoking Article 70. he would have approached the Electoral Court for an order to deny the ballot boxes.

These remedies are meant to protect every disadvantaged candidate and to remove any doubts whether or not the election itself was correctly executed on the election day and whether the true expression of Zimbabwean voters was announced by the Zimbabwean electoral commission. These remedies are for the benefit of the disadvantaged candidate.

They are meant to ensure that no unnecessary disputes or disputes regarding the validity of an election are settled. They are also intended to ensure that the disadvantaged candidate, who subsequently becomes the applicant, has the necessary evidence to successfully pursue his or her application. So these are not the 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 by a recount in which the figures would be inaccurate, or in the analysis of the sealed boxes, the applicant would have a clear indisputable picture of the outcome of the election.

He would have been clear whether any irregularities with regard to the actual votes and the results could be substantiated. He chose not to exercise this right.

The electoral law protects the voter and the candidate in the process. This is from the delivery of the ballots to the polling station, to the collection of the results, to the sealing of the ballot boxes at the end of the election.

The applicant was therefore generally in a position to expand his polling stations or to send his polling stations to each polling station in the country. Observers were also free to participate in the process.

The agents of the applicant saw the voters arrive, got the ballots as applicants for these pieces for the presidents, voiced secretly in the boxes and had the votes count in their presence when they were there.

At the end of the counting all agents must sign the V11 forms in the presence of the law that is present, copies of which will then be given to them. So if the applicant had placed the V11 in front of the court form of all stations that he had the right to have his agents present, a simple analysis of these V11 forms against the V11 forms in the ballot boxes that would have been unsealed would be easy have done the following: a) 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 denied accusations of voters' overruns or outbursts after a certain time, for example what would have happened in Mashonaland Central.d)

It would have addressed the problems of differences in voting patterns and numbers of votes for parliamentary and presidential elections. E) It also covered problems of improbability of comparable and identical results in polling stations. F) It had solved questions about the accuracy of the result and the information provided by the committee.

Essentially, the whole challenge for the figures would have been easily resolved and if there had been any irregularity, it would have been easy to detect.

When it was asked why that evidence had not been provided, the practitioner of the applicant gave a daring and unfounded claim that the ballot box had been tampered with. According to the applicant's counsel, the ballot box was a poisoned chalice. In other words, by the time you wanted to deny them, they would already have been manipulated.

That was the argument. This exercise would have been useless according to this argument. However, this position is opposed to the following points: the Zimbabwean Election Commission states 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 at each polling station, a sample of constituencies could have been used, so that the same constituencies where the applicant now disputes the figures would have been compared.

If there were cases where for some reason the forms were not registered as they should have been, specific evidence indicating the gaps and differences should have been submitted to this court.

This could have been due to the allegations of malpractice against the committee. In the second incident, the applicant insists or states that the core of his case will remain even without the primary proof.

It was argued that an attack on the figures produced by the election committee itself would suffice to declare the elections invalid. Even then, all the accusations against the committee were to some extent invalidated by the election committee, specifically and systematically.

The election result and the admission by ZEC On 3 August 2018, the Zimbabwean electoral commission announced that Emmerson Dambudzo Mnangagwa had reached the required fifty percent plus one vote from the election until the appropriately elected President of Zimbabwe was declared.

The declaration has been drawn up in the sense of Article 110 (3) (f (ii) of the Elections Act. It determines (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 chairman of the committee or in his or her her absence, the vice-chairman, or in his absence, a commissioner appointed by the chairman: 1. If there are two candidates, declare the candidate who has received the largest number of votes to President of the Republic of Zimbabwe with effect from the date of that statement. OR2. If there are more than two candidates, declare the candidate who has obtained more than half the number of votes as President of the Republic of Zimbabwe with effect from the date of that declaration. OR3.

If there are more than two candidates and no candidate has received more than half the number of votes, he shall immediately declare that an expiring presidential election will take place on the day set by the chairman in Article 38 (1), subparagraph A (iii). ) ie "a fixed date of at least 28 and at most 42 days after the day of the election or the last voting day, as the case may be, of the original election, provided that the election committee may, at the request of the committee, extend the period at court and the statement as set out for these provisions is the legal event.

This is for every candidate who reaches the threshold of 50 percent plus one vote. Whether a candidate has reached this threshold is a matter of fact. It is not a question of numbers.

The declaration can only be amended and amended by this court on the grounds of article 110 paragraph 3 (i), which states: "A statement of the chairman of the committee or in his absence the vice-chairman or in his absence a commissioner designated by the chairman under paragraph (h) is definitive, except for reversing the petition to the electoral court to annul such a statement or to annul the procedure with regard to that election.

That is why the declaration itself is definitively dependent on the requirements for reversal requirements. 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 1st respondent's victory by 0.1 percent, but this had no influence on the result of the election. It is important to understand what the outcome of an election is.

The result of an election is the statement of a winner who has reached the 50 percent plus one vote; no other thing. All votes after that point do not affect the outcome of the election.

The ZEC amendment has no influence whatsoever on the outcome of the election and the statement as interpreted in this case. In fact, an error in counting and changing numbers is provided for in the law itself, whereby the provisions of section 110 are subject to those of section 67 (a). The law therefore allows this adjustment and again, if the applicant was disadvantaged by counting and used the figures, he should have used the remedies provided by law.

In this case, in our opinion, the applicant needed more proof than the mere admission by ZEC of the inaccuracy of the mathematical figures. In the case presented by the applicant concerning the irregularities committed by the ZEC, the applicant submitted several general allegations of election crimes against the election commission. He made a surprising claim that these generalized accusations would suffice to prove this case of irregularities without resorting to the primary source certificate.

Nevertheless, the electoral commission took time to analyze accusations against it and provided clear and tangible evidence to refute the accusations made to the applicant to fulfill the responsibility that rested upon him. The burden of proof to prove the case is not with the accused.

The defendant does not have to prove anything, does not have to prove innocence and therefore the respondent only had to respond in this case. ZEC proved by the produced V11 forms that allegations were signed on some forms and not populated was false and there seems to have been a deliberate fabrication of evidence with the intention to mislead the court.

Without access to the sealed voice trunk residue, this statement simply remains as refutable. Determines the franchise of 40,000 teachers. The applicant claimed that around 40 000 teachers were denied their right to vote on the election day and that this had a direct effect on the results.

The claim was of course very general and unfounded. It is not clear how the figure 40 000 is 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, ZEC demonstrated that some teachers had deliberately opted not to vote to be posted at stations where such a right could not be exercised.

The constitution gives every Zimbabwean eligible to exercise a voting right, it is not an obligation under our constitution to vote. So there was no evidence for how many of these teachers were registered voters.

There was no evidence of the fact of this claim. Even if it has been shown that this has affected the result, there was no guarantee that every teacher would have voted for the applicant.

The assertion regarding ghost polling stations or polling stations that were created at the time of the vote lacked specificity and particularity and was in any case not proven by the evidence presented for the 23rd and 25th respondents. And these are the kinds of accusations that would have been easily proven by access to the evidence in the sealed ballot boxes.

Ultimately, the court reached the conclusion that the petitioner had not provided clear, direct, sufficient and credible evidence that the irregularities he claims to have disrupted the electoral process were material. In other words, there was no evidence of these irregularities.

It would therefore not be useful for this court to go further and to investigate whether such irregularities materially affected the election results. As already indicated, it is an internationally accepted principle of electoral dispute that an election is not simply pushed aside solely on the grounds that irregularities have occurred.

There is a presumption of validity of an election. This is also so because as long as an election was conducted substantially in terms of a Constitution and laws it would have reflected the will of the people. It is not up to the judge to decide elections, they are the people. It is the duty of the courts to pursue in the public interest that people have expressed their will.

Therefore, their application must be rejected. In the result the following order is made: The application is rejected with costs.

In terms of section 93 subsection 4 subsection (a) of the Constitution, Emmerson Dambudzo Mnangagwa was duly proclaimed winner of the presidential election on July 30, 2018. As indicated, a fully clothed opinion will be issued in due course. issues. We have come to the end of this long procedure.

We thank everyone who participated. As I said at the beginning, we thank the lawyers. Ultimately, it is their comments, regardless of which side there is, that helped this court to come to this decision.

Lawyers are not there to win. Advocaten zijn functionarissen van de rechtbank en de integriteit ligt in uw hoedanigheid als advocaat en daarom moet u er trots op zijn om die beginselen te respecteren waar het publiek naar opkijkt.

Ik bedank het publiek voor het vertrouwen in de rechterlijke macht te hebben getoond, ongeacht de opvattingen aan het eind van de dag dat we allemaal Zimbabwanen zijn en dat we recht hebben op de wet.

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