On the 10th of August 2018 Nelson Chamisa presidential candidate for the MDC Alliance, successfully filed a petition at the Constitutional Court of Zimbabwe[1]. The petition challenged the declaration made by Zimbabwe Electoral Commission chairperson Priscilla Chigumba[2], that Emmerson Mnangagwa was the duly elected President of Zimbabwe after garnering a[3] total of 2,460,463,50.8% against Chamisa's 2,147,436, 44.3%.

Chamisa alleged that the results were manipulated by the Zimbabwe Electoral Commission (Zec) to ensure that Mnangagwa won the presidential race ahead of Chamisa.[4].


Background

ZEC Declaration

The Zimbabwean Electoral Commission made the announcement at 00:40 AM on the 3rd of August 2018. In the announcement, ZEC declared that Mnangagwa had received 50.8% of the total vote which made him eligible to assume the presidency after satisfying the legal threshold of 50% plus 1 vote. ZEC also stated that His opponent, Movement for Democratic Change (MDC) Alliance Nelson Chamisa, received 44.3% of the vote.

Mnangagwa declared winner of Zimbabwe election: official result



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Morgan Komichi and Nkululeko challenging the Declaration

During the ZEC announcement of the presidential results MDC Alliance 's Chief polling agent Morgan Komichi and Nelson Chamisa's spokesperson Nkululeko Sibanda, hijacked the stage at the elections command centre at Harare International Conference Centre claiming that the presidential results announced by ZEC were fake and not a true reflection of the electorate's will. Komichi described the results as fraudulent, adding they had not signed them off before he was escorted out of the room by the police.[5]

‘Zimbabwe presidential results are unverified and fake’ - MDC Alliance



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Nelson Chamisa's presser at Bronte Hotel

At a Press Conference held at Bronte Hotel in Harare Nelson Chamisa alleged that the ballot was burstadised and was not a true reflection of the people's will. He categorically alleged that ZEC massaged numbers to favour Mnangagwa and ensure his victory.Chamisa also claimed that ZEC was malleable with numbers. The MDC Alliance presidential candidate also claimed that he was in a position of overwhelming evidence which would embarrass ZEC. Chamisa further claimed that his evidence was securely stored beyond the reach of his opponents. Chamisa rejected the results announced by ZEC and claimed that he would seek legal recourse to overturn Mnangagwa's win.

Zimbabwe: Opposition leader Chamisa calls Zimbabwe election 'fraudulent' - BBC News



Thabani Mpofu

Advocate Thabani Mpofu, head of a legal team that compiled the MDC Constitutional Court petition, vowed: the poll challenge is going ahead, prepared, clear and convincing. whilst addressing journalists. Mpofu also said that they had a secret weapon to unleash through their petition should things go a different direction.[6]

Chamisa's Lawyer speaks on court challenge



MDC Alliance accusing ZANU-PF of stealing its evidence

The legal team representing the MDC Alliance accused Emmerson Mnangagwa’s administration of breaking into their attorney’s offices and stealing large amounts of data from their computer, days before the opposition alliance filed a petition challenging the results of the presidential election.

The allegation was based on documents prepared by Mnangagwa’s lead advocate Lewis Uriri on August 8 2018, two days before Chamisa asked the Constitutional Court (Con-Court) to invalidate the presidential election results, suggests a wide-ranging conspiracy involving sophisticated hacking and theft of documents.[7]

Chamisa's foreign legal team

Nelson Chamisa hired international constitutional lawyers to help him with his Constitutional Court appeal case where he is accusing the Zimbabwe Electoral Commission (ZEC) of vote rigging in favour of the ruling party, Zanu-PF, in the July 30 elections. Among Chamisa's legal team were Dali Mpofu and Tembeka Ngcukaitobi. Chamisa also roped in Mandela's lawyer Advocate Jeremy Gauntlett.

Challenges for Chamisa's foreign lawyers

It was alleged that Advocates Dali Mpofu and Tembeka Ngcukaitobi from South Africa — who were reportedly set to lead a legal team contesting Mnangagwa’s victory in the July 30 harmonised elections — could appear in court to argue for MDC-Alliance without the requisite authority from the Government.[8] Ziyambi Ziyambi denied Chamisa 's request to have Advocate Jeremy Gauntlett to represent a portion of his petition. Ziyambi claimed that South Africa did not pass the test of reciprocity. Therefore application to have Mandela's lawyer represent Chamisa should be denied.[9]

ZANU-PF response

Secretary for legal affairs in the ZANU-PF party Paul Mangwana said that they had enough legal brains to equal the MDC Alliance. He also said that the MDC Alliance's case had no legal standing and was just political rhetoric packaged in an affidavit. Mangwana said Zanu PF’s 12-member legal team was ready to respond to the MDC Alliance's challenge of the presidential elections.

We have a top legal team which is going to tear down the nonsensical application. We are filing our opposing papers tomorrow before 12. We are very confident that the decision will be in favour of our presidential candidate

[10]

ZANU-PF responds to MDC's court challenge: Paul Mangwana



Faliure to file a response on Heroes day Holiday

ZANU Party secretary for legal affairs Munyaradzi Paul Mangwana was caught on camera as he led a team of lawyers to the ConCourt only to be stopped by locked gates as they moved to file their opposing papers.[11]

Mnangagwa's lawyers found the CONCOURT closed



lewis Uriri's response

ADVOCATE Lewis Uriri’s legal opinion, which informed the decision by the Zanu PF legal team to present itself at the Constitutional Court on a public holiday, was that section 93 of the Constitution did not relate to weekdays.

Section 93 of the Constitution does not relate to seven weekdays, it relates to seven days. If the intention was to exclude Saturdays, Sundays and public holidays, the legislature would have said so by using appropriate language. The simple reference to seven days is a reference to calendar days and includes weekends and public holidays

[12]

Uriri's advice to Mnangagwa pertaining Inaguration

Uriri advised the presidential elect Emmerson Mnangagwa that the inauguration which has been scheduled for Sunday 12 August 2018 could not proceed after a court challenge of the election had been filed at the courts according to section 93 of the constitution.

Advocate Uriri Mnangagwa Inauguration Legal Advice

Advocate Uriri On Chamisa's Electoral Challenge




MDC Alliance Filing petition

The legal team representing MDC Alliance presidential candidate, Nelson Chamisa, filed their petition challenging the presidential election results at the Constitutional Court on the 10th of August 2018.

MDC Alliance Chamisa Successfully Files Election Petition



Lawyers for the MDC Alliance asked the country’s Constitutional Court to order a re-run. Thabani Mpofu, lawyer for Nelson Chamisa’s MDC party said:

We are seeking a declaration to the effect that the presidential elections was not properly conducted. It was not conducted in terms of the constitution. It was not conducted in terms of the electoral act. It was not conducted in terms of standards of fairness, transparency and accountability.” Opposition leader Tendai Biti said they’d laid out evidence of vote rigging in the election. He said: “l think that we exposed, we exposed the truth and you can’t hide the truth and we hope that Zambia and Zimbabwe can be held accountable for failing to protect people’s rights

[13]

Chamisa's Foundig Affidavit

In his ConCourt challenge, Chamisa argued that he garnered 2 674 032, while his rival Mnangagwa got 2 008 639 votes. The MDC Alliance petition challenged Zec’s failure to follow due process relating to collation and announcement of results.

Chamisa’s legal team led by Advocate Thabani Mpofu said the actual results announced by Zec were afflicted by irregularities, fraud and mathematical errors, which influenced the outcome while affecting the credibility of the results.[14]

The Accusations

  1. Failure to avail V23b forms (showing constituency totals) to Chamisa or his agents for verification;
  2. Failure to adhere to the presidential results announcement requirement on a constituency by constituency basis, whose motivation the petition alleges was to conceal the data manipulation;
  3. Chairperson delegated announcement of results to all the commissioners
  4. Returns not tallying with results announced by Zec;
  5. Discrepancies amounting to 700 000 votes between the total registered voters and the votes announced by Zec;
  6. Also discrepancies between the figures provided by Zec on a CD and the figures announced by Zec chairperson Priscilla Chigumba;
  7. The Presidential tally was higher in all provinces than the Parliamentary votes;
  8. Differences between V11 and V23 Forms which points to inflation and deflation of figures;
  9. Zec gave some of the contestants results that they did not earn — presumably pursuant to the inflation and deflation of results;
  10. Prevalence of “ghost voters” showing that more people voted per polling station than were registered;
  11. Failure to post votes outside more than 21% of polling stations, amounting to 2 000 of the polling stations;
  12. Polling stations where Zec said there was a 90% turnout and in all such instances Mnangagwa received 352 897 votes. Evidence to this is supplied, including affidavits from experts;
  13. No tally between the people who voted at polling stations and the announced results. Incidents in Mashonaland Central cited;
  14. 370 000 people voted in two hours between 5pm and 7pm in Mashonaland Central;
  15. 40 000 teachers on duty prevented from voting on Election Day;
  16. Video evidence showing an irregular postal voting process at Rose Camp in Bulawayo;
  17. An inexplicable high number of assisted voters in comparison with the 2013 figure which suggests voter intimidation via SMS;
  18. About 21 polling stations vanished on Election Day;
  19. Identical Results — At various polling stations candidates would get the same number of votes which is statistically next to impossible;
  20. Percentages not adding up — Announced results show a total of 98,4% instead of 100% amongst others; and;
  21. Zec allegedly forced polling agents to change V11 Forms.Returns not tallying with results announced by Zec;
  22. Discrepancies amounting to 700 000 votes between the total registered voters and the votes announced by Zec;
  23. Also discrepancies between the figures provided by Zec on a CD and the figures announced by Zec chairperson Priscilla Chigumba;
  24. The Presidential tally was higher in all provinces than the Parliamentary votes;
  25. Differences between V11 and V23 Forms which points to inflation and deflation of figures;
  26. Zec gave some of the contestants results that they did not earn — presumably pursuant to the inflation and deflation of results;
  27. Prevalence of “ghost voters” showing that more people voted per polling station than were registered;
  28. Failure to post votes outside more than 21% of polling stations, amounting to 2 000 of the polling stations;
  29. Polling stations where Zec said there was a 90% turnout and in all such instances Mnangagwa received 352 897 votes. Evidence to this is supplied, including affidavits from experts;
  30. No tally between the people who voted at polling stations and the announced results. Incidents in Mashonaland Central cited;
  31. 370 000 people voted in two hours between 5pm and 7pm in Mashonaland Central;
  32. 40 000 teachers on duty prevented from voting on Election Day;
  33. Video evidence showing an irregular postal voting process at Rose Camp in Bulawayo;
  34. An inexplicable high number of assisted voters in comparison with the 2013 figure which suggests voter intimidation via SMS;
  35. About 21 polling stations vanished on Election Day;
  36. Identical Results — At various polling stations candidates would get the same number of votes which is statistically next to impossible;
  37. Percentages not adding up — Announced results show a total of 98,4% instead of 100% amongst others; and;
  38. Zec allegedly forced polling agents to change V11 Forms.

Download MDC Alliance Petition

Mnangagwa 's opposing affidavit

In his response in opposing papers filed at the ConCourt, Mnangagwa questioned the validity of Chamisa’s electoral challenge, arguing that it was premised on delaying his imminent inauguration, while it was lodged “seven days after the date of the declaration of the results of the election” in violation of the constitution.

Mnangagwa was represented by a legal defence counsel led by Advocate Lewis Uriri.

Preliminary objections

  1. Late filing of the petition: Argued that according to Section 93 of the Constitution, Chamisa’s petition is invalid, since it was lodged at the ConCourt not “within seven days after the date of the declaration of the results of the constitution” in line with the country’s electoral laws
  2. Papers not served properly: Wanted case dismissed with costs on grounds that it was not lodged in line with the constitutionally spelt out procedures, being served by personal delivery to the respondent or authorised agent or to a responsible person at the residence, workplace or business or the person’s chosen address for service;
  3. Papers served late: No valid court application before the court as he was served by the Sheriff on August 11 at 10:30 am, a day out of time;
  4. Wrong address: Was supposed to be sued as a poll candidate “and not as the President of Zimbabwe” and the papers should have been delivered at the address given to Zec;
  5. Was not served by the sheriff within the legally required seven days;
  6. Contends that Chamisa was approaching the court with dirty hands, by deliberately and consistently saying it is captured by the executive and a Zanu PF extension;
  7. Argued that Chamisa’s bid to overturn his “victory” was frivolous and premised around the need to “create doubt in the minds of the people as regards the integrity of the (electoral) process.”;
  8. Argues that Chamisa’s electoral challenge be dismissed with costs since the elections were credible;
  9. Chides at the MDC Alliance campaign strategy, which he said was bereft of substance to woo the electorate;
  10. Challenges Chamisa to prove that the election was rigged, through ballot stuffing;
  11. V11 forms verified by all candidates’ agents at the close of polling and posted outside each polling station.”;
  12. Discounts the mathematical “statistical models”;
  13. Unable to find anywhere in the Electoral Act or the Constitution where an election is challenged based on statistical models; and
  14. An election is challenged based on solid hard evidence, using election materials that exist before the filing of that election.

Mnangagwa opposing papers

Zec’s response

Zec chairperson Priscilla Chigumba, Chamisa’s application on technicalities.

Chigumba, who was cited as the 24th respondent, on behalf of Zec and its chief elections officer (CEO) Utloile Silaigwana, declared Chamisa’s entire application fatally and incurably defective.[15]


Submissions by Zec

  1. No valid application has been filed by the applicant challenging Mnangagwa’s election to the office of the President in terms of the Constitution as read with the Constitutional Court Rules, 2016;
  2. The time for lodging a petition according to section 93(1) expired on August 10 as the seven days prescribed by the law include Saturdays, Sundays and public holidays;
  3. Any filing and/or service that is done outside that August 10 rendered the applicant’s case fatally and incurably defective
  4. MDC Alliance court application is null: The papers purportedly served by the applicant on August 10, there was no court application as prescribed under r16 of the Constitutional Court Rules. What was in the bound bundle of papers was a cover, consolidated index, notices of addresses of service and a founding affidavit deposed to by the applicant with various annexures thereto;
  5. Deadline missed — the papers were delivered on August 11 at the Mahachi Quantum Building on the eighth day after the declaration of the result instead of within seven days;
  6. MDC Alliance failed to serve Chigumba and Silaigwana with copies of the application on August 10;
  7. Nullity of evidence, including, compact discs provided after the August 10 deadline;
  8. Respondents served incomplete application in the absence of the bundles and compact discs;
  9. MDC Alliance can no longer present any further founding papers to the Registrar of the Constitutional Court in respect of CCZ42/18;
  10. MDC Alliance failed to file a complete and therefore valid application with the Registrar so it ought to be struck off the roll;
  11. Absence of critical evidence — The separate bundle is absent, the photographs are absent and the videos he refers to are absent;
  12. Zec has always been independent, transparent and accurate in their conduct as confirmed by several observer missions;
  13. Regarding the rogue elements from the security sector, the averment is lacking in particularity that there is no cogent way to plead to it;
  14. The applicant does not state the names of the polling stations that he alleges to have disappeared on the polling day. No polling stations were created on the polling day. 1HRDC and 2HRDC that the applicant cites as examples of created polling stations are in fact not polling stations. The former stands for ward 1 Hurungwe Rural District Council and the latter stands for ward 2 Hurungwe Rural District Council;
  15. No evidence of rigging is furnished and no explanation given as to how the alleged rigging is said to have taken place;
  16. On V11 forms — Polling agents at the unidentified polling stations he alleges did not have returns affixed would have been given V11 forms before the return for the polling stations is affixed in terms of the law;
  17. Postal votes — The bundle of evidence that the applicant refers to as containing proof of the malpractice, he alleges occurred during postal voting, was not served on the respondents;
  18. The process of collation and verification of the presidential election results was done transparently and the applicant’s agents, Morgen Komichi and Jameson Timba, had full access to the results collation room at the Commission’s national command centre;
  19. Further, Timba is quoted in the NewsDay confirming that they were in the process of verifying the presidential election results. Attached Timba’s photograph in the results collation room. Also appearing in the photograph are the presidential election agents for the NCA and ZIPP political parties. Timba was given V11 and V23 forms;
  20. Chamisa also alludes to having sourced the V11 forms from social media, suffice to remind him that a V11 form is obtained through the provision of section 64(1) (d1) of the Electoral Act. The authenticity of his source of data is thus in doubt; and
  21. The total voter population for purposes of the 2018 general election was 5 695 936 and not 5 659 583 indicated by the applicant. The previously announced number before polling day had been 5 695 706, which figure was adjusted by the addition of 230 voters, who had been registered on a BVR kit in Chegutu, Mashonaland West Province, prior to the cut-off date for the 2018 general election but had not been uploaded into the database.

Priscilla Chigumba opposing papers

Consitutional Court pre-trial conference

On the 16th of August 2018 Chief Justice Luke Malaba set ground rules on how the Constitutional Court would deal with MDC Alliance leader Nelson Chamisa’s petition where he sought to overturn President-elect Emmerson Mnangagwa’s electoral victory. Justice Malaba, during a pre-trial conference with all parties to Chamisa’s court challenge in his chambers in Harare, reportedly ordered that losing candidates could only file their responses if they were opposed to Chamisa’s application.Malaba also set August 22 as the date for the hearing of the presidential challenge. [16] Chamisa listed all the 23 applicants and the Zimbabwe Electoral Commission (Zec) as respondents in the matter in which he wants to overturn Mnangagwa’s narrow win in the July 30 watershed polls. Justice Malaba also gave Nelson Chamisa up to Saturday 18 Agust 2018 noon to file his Heads of Argument. Malaba gave ZANU PF and ZEC up to Monday 20 August 2018 to file their Heads of Argument.

Response to Malaba

Douglas Mwonzora said.

What the Chief Justice said is that you can only file if you are opposed to the application. If you are in support of the application, you had your own time to file,” MDC Alliance secretary-general

United Democratic Alliance (UDA) presidential candidate Daniel Shumba, who had filed in support of Chamisa’s challenge also confirmed the development, but said he was against the idea. Shumba said

We can’t have anybody to say if you are supporting Chamisa we can’t hear you. We can only hear anyone supporting Mnangagwa,Respondents must be heard, you cannot muzzle people. There is nothing in the Constitutional Court that allows for the muzzling of litigants. According to Shumba, Justice Malaba accused the other candidates filing in support of Chamisa of trying to bring their arguments through the back door. The top judge argued if the other losing presidential candidates were against Mnangagwa’s victory, they should have filed their own petitions within the seven days prescribed by the law, not to hide behind the MDC Alliance leader’s court challenge.

Shumba also said that said his right to be heard was guaranteed in sections 165 and 167 of the Constitution.[17]


Nelson Chamisa Heads of arguement

Nelson Chamisa filed his heads of argument on the 18 of August 2018. In his Heads of Argument, Nelson Chamisa reiterated the argument in his Presidential Election Legal Challenge that the 30 July presidential election should be declared invalid and the results set aside.

He reiterated the irregularities in the voting results and election process and addressed some of the issues raised in ZEC‘s and Mnangagwa‘s opposing papers. Nelson Chamisa Heads of Arguement

Emmserson Mnangagwa Heads of Arguement

Emmerson Mnangagwa’s legal team successfully filed their heads of arguments on the 20th of August 2018 in response to Nelson Chamisa’s challenge of the presidential results at the Constitutional Court.[18]

Mnangagwa Heads of argument 1.0 Mnangagwa Heads of argument 1.2


References

  1. Nelson Chamisa's Lawyers File Presidential Challenge ⋆ Pindula News, Pindula News, published: 10 Aug 2018, retrieved: 20 Aug 2018
  2. ZEC announces Mnangagwa victory in Zimbabwe elections, retrieved: 20 Aug 2018
  3. Zimbabwe Elections 2018 ⋆ Pindula News, Pindula News, retrieved: 20 Aug 2018
  4. Nelson Chamisa's Lawyers File Presidential Challenge ⋆ Pindula News, Pindula News, published: 10 Aug 2018, retrieved: 20 Aug 2018
  5. MDC Alliance rejects ‘fraudulent’ presidential results; Chamisa to address nation - NewZimbabwe.com, NewZimbabwe.com, retrieved: 20 Aug 2018
  6. [1], retrieved: 20 Aug 2018
  7. Zanu PF steals MDC data? - Zimbabwe Situation, Zimbabwe Situation, published: 15 Aug 2018, retrieved: 20 Aug 2018
  8. Challenges for Chamisa’s SA lawyers, The Herald, retrieved: 20 Aug 2018
  9. Did Ziyambi use non-existent law to bar Advocate Gauntlett? - Zimbabwe News Now, Zimbabwe News Now, published: 20 Aug 2018, retrieved: 21 Aug 2018
  10. Zanu PF ready for MDC Alliance challenge: Mangwana - NewsDay Zimbabwe, NewsDay Zimbabwe, published: 12 Aug 2018, retrieved: 20 Aug 2018
  11. Zanu-PF lawyers find ConCourt closed for holidays, Bulawayo24 News, retrieved: 20 Aug 2018
  12. Download Advocate Uriri's advice to Mnangagwa on inauguration - ZOOM Zimbabwe News, ZOOM Zimbabwe News, retrieved: 20 Aug 2018
  13. Download Full MDC-Alliance court application - Election results challenge - ZOOM Zimbabwe News, ZOOM Zimbabwe News, retrieved: 20 Aug 2018
  14. I garnered 2,6 million votes and Mnangagwa got 2 million — Says Nelson Chamisa as battleground shifts to ConCourt, My Zimbabwe News, retrieved: 20 Aug 2018
  15. I garnered 2,6 million votes and Mnangagwa got 2 million — Says Nelson Chamisa as battleground shifts to ConCourt, My Zimbabwe News, retrieved: 20 Aug 2018
  16. Fresh details on Chamisa's case: Justice Malaba holds pre-trial conference with all parties, sets ground rules, My Zimbabwe News, retrieved: 20 Aug 2018
  17. Fresh details on Chamisa's case: Justice Malaba holds pre-trial conference with all parties, sets ground rules, My Zimbabwe News, retrieved: 20 Aug 2018
  18. Download PDF: Mnangagwa's Heads Of Arguments In Nelson Chamisa Presidential Challenge ⋆ Pindula News, Pindula News, published: 21 Aug 2018, retrieved: 21 Aug 2018