Zimbabwe’s Constitutional Court hears opposition’s historic petition against 2018 presidential election results

“Although I am not the one on trial, I point out that my tally of votes is 2 674 032 as against 2 008 639 for the first respondent.” ~ Nelson Chamisa

Nelson Chamisa, the leader of Zimbabwe’s main opposition Movement for Democratic Change (MDC) party. Photo credit: Facebook (Advocate Nelson Chamisa page)

By Obert Madondo | @Obiemad | Aug 24, 2018

On Wednesday, Zimbabwe’s Constitutional Court heard the opposition MDC Alliance’s historic petition against the declared results of the recent 2018 presidential election. The alliance’s presidential candidate, Nelson Chamisa, is the aggrieved party. The Zimbabwe Electoral Commission (ZEC) and declared winner Emmerson Mnangagwa, the ruling Zanu PF party candidate, are the principal respondents.

The elections, Zimbabwe’s first without Robert Mugabe, were held Jul. 30, 2018. The military-dominated ZEC declared Mnangagwa the winner with 50.8% of the vote, narrowly avoiding a runoff with Chamisa, who grabbed 44.3% of the votes.

In his challenge, Chamisa argued that ZEC’s declared results were not credible. He argued that the commission’s conduct of the elections failed to comply with Zimbabwe’s Constitution and Electoral Act. Chamisa argued that his identified non-compliances, violations, and “gross irregularities” effectively invalidated the declared result of the presidential vote.

Chamisa’s ConCourt application (pdf) cites numerous violations, including ZEC’s failure to provide a complete voters’ roll before the election, widespread voter intimidation, Zanu PF ‘s blatant abuse of state resources, the state media anti-opposition bias, and “glaring mathematical errors” or irregularities in ZEC’s counting and tallying of the votes.

While this is a complex legal issue involving math and statisticians from as far afield as Kenya, some of the opposition leader’s arguments will resonate with anyone who has followed Zimbabwe elections in the past 38 years.

In his application, Chamisa argued that numerous polling stations registered more votes cast than officially registered voters:

In analyzing the ZEC results juxtaposed to the voters’ roll, the data in the ZEC results suggests that in at least 111 polling stations, there were more votes than registered voters. In these polling stations, at least 31 2014 more than the permissible limit were collated and computed into the eventual total… The information harvested from the V11 forms show that at least 10 343 votes for one Emmerson Dambudzo Mnangagwa were inflated on the ZEC results. This is true on a sample of just 1 200 polling stattions. There is a very high probability of unearthing more inflated votes in favour of Emmerson Dambudzo Mnangagwa if the sample is widened.

Chamisa’s application further argued:

The information harvested from the V11 forms show that at least 19 246 votes for one Nelson Chamisa were systemetically deflated on the ZEC results.

The opposition leader also raised issue with the fact that the presidential results publicly announced by ZEC are at odds with the commission’s published results.

The total amount of voters who voted in the National Assembly elections does not match with the total amount who voted in the Presidential Election. Using the results provided by ZEC, the total number of the National Assembly votes was 4,734,161 against a total of 4,774,878 for the Presidential election. The gap amount to 40,717… Overall, the gap between the presidential and parliamentary votes was 42,040 if we include rejected votes, and 38,665 if we exclude rejected votes. Effectively, this gap of 38,665 votes would need to be accounted for.

ZEC’s has failed to explain Chamisa’s identified mathematical errors in its collation and tabulation of the votes, as well as the discrepancies in parliamentary and presidential votes.  Instead, the commission has argued, unconvincingly, that these errors or discrepancies did not affect the outcome of the 2018 presidential election.

RELATED: ZEC “cooking” the results of Zimbabwe’s first post-Mugabe elections?

The opposition leader argued that ZEC’s “errors” were part of a rigging plan that helped Mnangagwa avoid a runoff by only 32 000 votes. Importantly, Chamisa argued that he won the election and should be declared Zimbabwe’s first post-Mugabe president.

“Although I am not the one on trial, I point out that my tally of votes is 2 674 032 as against 2 008 639 for the first respondent (Mnangagwa),” stated Chamisa in his application.

The Constitutional Court’s ruling is expected today. The Zimbabwe constitution watchdog Veritas identifies three possible verdicts under section 93(4) of the Zimbabwe Constitution:

First, the Con-Court “can declare a winner, which means it can confirm ZEC’s declaration or declare another candidate the winner”.

Second, the Con-Court “can invalidate the election, in which case a fresh election must be held within 60 days – note this probably means a new election rather than a run-off”.

Third, the Con-Court “can make any other order it considers just and appropriate”.

The decision of the Constitutional Court, Zimbabwe’s highest court, is final.

Do I expect the opposition to prevail? No. The loathed dictator is gone, but the Zimbabwean judiciary remains captured by the state. The Constitutional Court is stacked with Zanu-PF judges. Not only that. Since the opposition launched its challenge, Mnangagwa and his powerful vice-president, retired Gen. Constantino Chiwenga, have been busy intimidating everyone, including the judiciary. According to NewsDay, on the eve of the ConCourt’s hearing of the opposition’s petition, Chiwenga, the man who led the military coup that overthrew Mugabe and installed Mnangagwa as president last November, “insisted President-elect Emmerson Mnangagwa will remain at the helm of the country even after the determination of MDC Alliance presidential hopeful, Nelson Chamisa’s Constitutional Court (ConCourt) petition challenging his win on July 30.”

Those who watched the hearing’s livestreaming on Wednesday witnessed the chilling effect of the government’s campaign of intimidation. The judges grilled the opposition’s lawyer during cross examination. They barely questioned the government’s lawyer.

The judges are expected to prioritize legal issues in the petition over political considerations in their verdict. That said, Zimbabweans expect the judges to deliver an impartial and fair judgment that assists in resolving the disputed 2018 presidential election.

Obert Madondo is an Ottawa-based blogger, photographer, digital rights enthusiast, former political aide, and former international development administrator. He’s the founder and editor of these blogs: The Canadian ProgressiveZimbabwean Progressive, and Charity Files. Follow him on Twitter: @Obiemad

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