Abel Zhakata Senior Reporter
LEGAL experts in Mutare have said MDC-Alliance leader Mr Nelson Chamisa Constitutional Court application challenging President Mnangagwa’s win in the July 30 harmonised elections may have failed to win the confidence of the bench due to lack of primary evidence.
President Mnangagwa was declared the winner with 50,8 percent according to results initially announced by the Zimbabwe Election Commission on August 3, before the figure was revised to 50,67 following the correction of clerical errors.
During Wednesday’s hearing the court queried Mr Chamisa’s lawyer, Advocate Thabani Mpofu, why he was basing his case on secondary evidence while brushing aside primary evidence.
Chief Justice Luke Malaba, who was sitting with eight other Concourt judges, noted that the applicant’s evidence was not supported by original and credible documents.
The legal experts said the election rigging claims brought forward by the applicant should have been laid bare through extracting evidence from sealed ballot boxes.
Mutare-based human rights lawyer, Mr Passmore Nyakureba said the real deal was inside the unsealed ballot boxes.
“What I think about the matter is that it turned its head on the question of the evidence presented before the court. You discovered that from the onset, the judges insisted upon what they called primary evidence which presents the best evidence before the court for it to be to decide.
“From the look of things there has been a lack of that evidence which actually should be found in the material used in the voting; that is the ballots cast and the ballot books from which they were plucked from. After the voting process you noticed that when the
counting is done the ballot boxes are sealed then the books that have been used are also put inside and sealed therein. This constitutes what is called the election residue. So it is that evidence which then was not presented before the court because the applicant did not go to the source of that evidence to show that what they are alleging is what actually transpired.
“In essence, I think the matter will turn its head on the question of whether or not the evidence that has been placed before the court is sufficient enough to set aside a result. Basically that is the question. You notice that the lawyers, both for the applicant and the first respondent, they spent much of their time arguing about issues of law rather than the presentation of the evidence which is what the lawyer for ZEC managed to do with clarity. I think the submissions by the lawyer for ZEC, Mr Tawanda Kanengoni, are the submissions that are going to be of much assistance to the court,” he said.
A senior lawyer who requested not to be named concurred with Mr Nyakureba saying the evidence presented by Mr Kanengoni would shape the outcome of the result.
“The first issue, looking at the Chamisa case, is that they emphasised much on the issue of figures saying ZEC announced three different results. However, the argument by the respondents, particularly the first respondent and ZEC, was that the source of the figures that are being used by the applicant to do comparisons was suspect. They said the source of the figures could not be independently verified.
“They questioned at great length where the applicant was getting those figures, their collation which makes them arrive at their figures which they then use to announce that Chamisa had more votes than the incumbent. This is why you see that the applicant, at the end of the day, did not pray that the court declared Chamisa as the winner. They could not sustain that argument because they could not provide the figures themselves. So they now went on to the alternative of demanding a run-off.
“At the same time, there was not really much the applicant said on the misconduct perpetrated by ED (first respondent). Nothing was said by Chamisa’s lawyers to say ED did this and that which was wrong in terms of the electoral law. However, they said he (ED) benefited from errors and fraud done by ZEC. Now let’s go to the ZEC issue itself. The main argument by ZEC was that if you (applicant) are saying we cooked up figures, there are source documents that are easily verifiable which can show you the number of people who voted, the number of votes casts and so forth. These are the V11 forms which are the primary evidence.
“Chamisa did not provide this information as evidence to the court. So how do you win the confidence of the court when you have not placed primary evidence? I am sure if you recall the Chief Justice questioned Adv Mpofu over this issue. So on that point alone, the applicant’s case suffers a great, great setback. They did not win the confidence of the court. The presentation by Kanengoni was brilliant and superb. He destroyed Chamisa’s case blow by blow, step by step. You can’t take anything away and I am confident that judgement is most likely going to be persuaded by Kanengoni’s submissions,” he said.
Ruling on the petition will be delivered today (Friday) at 2pm.