CCC leader Nelson Chamisa decided not to contest President Emmerson Mnangagwa’s controversial win in the 23 August elections in the Constitutional Court in line with section 93 of the constitution after getting legal advice that a pattern of bogus electoral judgements issued by the courts in the pre-election period, would continue, among other reasons.
OWEN GAGARE
Chamisa was expected to file an online electoral petition on deadline day last Saturday, but changed his mind after going through the legal advice, paving way for Mnangagwa’s inauguration on Monday.
Section 93 (1) of the constitution says a challenge to the presidential election should be lodged in court within seven days.
“Subject to this section, any aggrieved candidate may challenge the validity of an election of a President or Vice-President by lodging a petition or application with the Constitutional Court within seven days after the date of the declaration of the results of the election,” reads the constitution.
The constitution gives power to the ConCourt to declare a winner or “invalidate the election, in which case a fresh election must be held within sixty days after the determination.”
Below is part of the legal advice given to Chamisa:
Bogus electoral judgments
Leading to August 2023, a lot of litigation bearing on the conduct of free, fair and credible elections was brought. All the matters bar one (the Bulawayo 12, and even then on appeal and after a massive push back) produced bogus judgments. As far as the Constitutional Court is concerned, it was predominantly seized with the Kasukuwere matters which were all resolved on bogus grounds.
These challenges brought are key because they speak to some of the matters that must of necessity be raised in any petition. A brief run down of some of the matters is imperative:
Markham v Zec
This matter was brought by an opposition parliamentarian who enforced his right to a voters’ roll.
The application was dismissed although the Electoral Act (Chapter 2:13), makes it clear that any Zimbabwean is entitled to a copy of the voters’ roll. The voters’ roll that was used in the elections was not given to candidates.
Mwonzora v Zec
This is a matter brought by one of the opposition leaders in which he challenged the delimitation exercise. The application was dismissed although all the political parties concerned accepted that the delimitation exercise was unlawful. In dismissing the application, the courts did not say the delimitation exercise was lawful.
Statutory instruments and amendments to electoral laws. The Mnangagwa administration sought to amend the constitution through a statutory instrument after the proclamation of the election dates.
Two issues arose. First, a statutory instrument could not amend the constitution. Second, no law could be amended for purposes of elections once an election was proclaimed. Notwithstanding its clear merit, one of these applications failed and the other is yet to be determined.
Next was the security cantonment case on ring fencing Dzivaresekwa Barracks. It too failed.
Mangwana v Kasukuwere
This is a case brought by a Zanu PF activist which sought to bar a presidential candidate from contesting in the elections. The former Zanu PF candidate enjoys support in the Mashonaland provinces and his participation would have made rigging in those provinces difficult.
The relief granted in this matter strengthened Mnangagwa’s hand.
The Bulawayo 12
A total of 24 cases were brought seeking to bar the Bulawayo 12 from contesting. In the High Court, the applications were granted on bogus grounds. What is even more illuminating is that the applicants, all Zanu PF activists, relied on documents that the CCC had no access to and which they could only have been given by Zec.
Double candidates. During the nomination process, Faz lodged nomination papers on behalf of certain individuals in order to create double candidates.
The double candidates plainly admitted that they had not paid nomination fees and were accordingly not involved in the process of their nomination.
Indeed when a challenge was brought, Faz procured for all of them legal representation by a single firm of legal practitioners.
Although their nomination had nothing to do with the CCC, upon a suit being brought by the CCC seeking a declaration that they were not its candidates, one of the Electoral Court judges who has a complaint pending against him, heard the matter and dismissed the application.
An appeal was lodged but the Supreme Court flatly refused to hear it and even rejected heads of argument that had been file by the CCC.
Resultantly, there were double candidates during the elections to the prejudice of the CCC.
Final voters’ roll case
The voters’ rolls given to candidates had discrepancies with the list of polling stations issued, which made it clear that this was not the voters’ roll that was going to be used during the elections.
This matter was placed before the same judge who had heard the first voters’ roll case and he, once again, as he had done with the first one, dismissed it.
Observers
Certain local observers were barred from exercising their functions on bogus grounds. A challenge brought by them was unsuccessful although the action taken against them was both unlawful and unprecedented.
The rallies
The CCC had more than 110 rallies barred in the run up to the elections. Challenges brought against these bars failed.
In certain instances, the courts would set down the challenges on dates that were after the scheduled rallies. This was particularly the case in Bindura where the CCC was meant to have its election launch rally.
Bail denial
In Seke constituency, CCC members including a chief election agent for a candidate were assaulted by Zanu PF officials.
When they sought sanctuary from the police, they were promptly arrested and denied bail.
They remain in custody. On the other hand, Zanu PF officials who murdered a CCC supporter lawfully going about his business in Glen View, were all admitted to bail.
Cheza, a losing CCC candidate, who narrowly lost to a candidate responsible for the disappearance of a police officer who had refused to be used by Zanu PF, is himself in custody over flimsy complaints, having been arrested a couple of days after the elections.
Ballot papers case
Contrary to its statutory obligations, Zec did not advise political parties of the details relating to the printing of ballots, their number and related issues.
When it was taken to court, it undertook to avail those details by the 19th of August 2023. It then purported to give such details on the 18th instant but refused to provide the serial numbers.
Elections were held before this matter was finalised and it is now known that whilst Zec claimed to have printed ballot papers, there were no such ballots in all opposition strongholds on voting day.
All these cases demonstrate a pattern, all too perceptible, and it would be ill-advised for the CCC to ignore it.
