DECISION
MALABA CJ:
This is the unanimous judgment of the Court. It must be noted that
it, however, does not contain the full reasons thereof. These
will be issued in due course.
On
30 July 2018 the Republic of Zimbabwe held harmonised
Parliamentary, Local Government and Presidential elections. The
applicant and the first respondent participated as Presidential
candidates along with twenty-one others.
On
3 August 2018 the twenty-fourth respondent, acting in terms of
section 110(3)(f)(ii) of the Electoral Act [Chapter 2:13]
(“the Act”), declared the first respondent, as the candidate who
had received more than half the number of votes cast, to be duly
elected as the President of the Republic of Zimbabwe, with effect
from that date.
The
applicant was aggrieved by the declaration of the first respondent as
having been duly elected as the President of the Republic of
Zimbabwe. He lodged an application in terms of section 93(1) of
the Constitution of Zimbabwe Amendment (No. 20) 2013 (“the
Constitution”), challenging the validity of the election of the
first respondent as the President of the Republic of Zimbabwe.
Section 93 provides as follows:
“93
Challenge to presidential election
(1)
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.
(2)
The election of a Vice-President may be challenged only on the ground
that he or she was not qualified for election.
(3)
The Constitutional Court must hear and determine a petition or
application under subsection (1) within fourteen days after the
petition or application was lodged, and the court's decision is
final.”
The
applicant seeks the following relief –
-
A
declaratur
to the effect that –
(i)
The Presidential election of 2018 was not conducted in accordance
with the law and was not free and fair.
(ii)
The election results announced by the Commissioners of the Zimbabwe
Electoral Commission on the 2nd
of August 2018 and the concomitant declaration of that same date by
its chairperson to the effect that Emmerson Dambudzo Mnangagwa was to
be regarded as the duly elected President of the Republic of Zimbabwe
with effect from the 2nd
of August 2018 is in terms of section 93(4)(b) of the
Constitution of Zimbabwe as read together with section 111(2)(b)
of the Electoral Act [Chapter 2:13]
declared unlawful, of no force or effect and accordingly set aside.
(iii)
The applicant, Nelson Chamisa, is in terms of section 93(4) of
the Constitution of Zimbabwe declared the winner of the presidential
election held on the 30th
of July 2018;
-
An
order to the following effect –
(i)
The twenty-fifth respondent shall publish in the Government
Gazette
this order and the declaration of the applicant to the office of the
President of the Republic of Zimbabwe; alternatively –
(ii)
In terms of section 93(4)(b) an election to the office of the
President of the Republic of Zimbabwe shall be held within sixty days
of this order; and
(iii)
Costs of this application shall be borne by the Zimbabwe Electoral
Commission and any such respondent as opposes it.
The
application was opposed by the first, fifth, sixth, seventeenth,
eighteenth, twentieth, twenty-third, twenty-fourth and twenty-fifth
respondents. For reasons that will be set out in the full judgment,
the court ruled that the opposing papers filed by the fifth, sixth,
seventeenth and twentieth respondents were –
-
not
properly before the Court, and
-
should
be expunged from the record with no order as to costs.
The
sixth and eighteenth respondents indicated that they would abide by
the decision of the Court.
Whether
the application is properly before the Court
The
respondents took several points in limine
including that the application filed by the applicant was not
properly before the Court. This was because, although filed within
seven days, as is stipulated by section 93 of the Constitution,
the application was served on the respondents on the eighth day in
violation of rule 23(2) of the Rules of the Constitutional Court
2016 (“the Rules”).
The
Constitution does not refer to week days but days. This is to be
taken to mean seven calendar
days and includes Saturdays and Sundays.
In
terms of r 23(2) of the Constitutional Court Rules, 2016, the
application shall
be
lodged with the Registrar and shall be served on the respondent
within
seven (7) days of the declaration of the result of that election.
The
first respondent was declared the duly elected president on 3 August
2018. In terms of s 93(1)
of the Constitution as read with r 23(2) of the Constitutional
Court Rules, the
applicant had until 10 August 2018 to file and serve the
application on the respondents.
The
applicant appears to have been cognizant of the reckoning of days and
time limitations prescribed by the Constitution and waited until the
last day to file his application shortly before close of the
Constitutional Court Registry on 10 August 2018. He was entitled
by law to do so.
Having
done so, the applicant was then faced with a further obligation to
serve the process on all the respondents on the same day. The
applicant could only do so through the Sheriff of Zimbabwe in terms
of r 9(7)
of the Constitutional Court Rules.
The
applicant indicates that he did so. The Sheriff had until 10 pm
that same evening to effect service in compliance with the Rules. The
affidavits submitted by the respondents show that the applicant had
in fact attempted service in his own capacity and without assistance
of the Sheriff on 10 August 2018.
It
is common cause that the application was eventually served on the
respondents on 11 August 2018, outside of the timeframes
stipulated in the Constitution and contrary to the provisions of the
Constitutional Court Rules.
The
same limitation applied to the respondents, who were served with the
application on Saturday 11 August 2018. The notices of
opposition would have been due within three days from that date,
being 14 August 2018.
In
terms of s 336(2)
of the Constitution of Zimbabwe:
“Subject
to this Constitution, whenever the time for doing anything in terms
of this Constitution ends or falls on a Saturday, Sunday or public
holiday, the time extends to and the thing may be done on the next
day that is not a Saturday, Sunday or public holiday.”
The
dies
induciae
having expired on 14 August 2018, a public holiday in Zimbabwe,
the notices of opposition both had to be filed on the next business
day thereafter, being 15 August 2018. They were duly and
properly lodged with the Registrar in terms of the law.
The
applicant clearly breached the Rules of the Court, and filed a
defective application. However, due to the importance of the matter
and the public interest, the Court has the power to condone the
non-compliance with the Rules in the interests of justice.
An
application for condonation of this non-compliance, albeit
opposed by the respondents, was made for the applicant. This Court is
prepared to, and does, grant the application due to the importance of
the matter and the public interest involved.
The
other points in
limine raised
by the respondents will be fully addressed in the main judgment.
On
the merits, the applicant alleges that the first respondent did not
win the election due to the fact that, in the run up to the
elections, the twenty-third and twenty-fourth respondents were
involved in a litany of constitutional and electoral law violations,
all of which had the effect of undermining the just conduct of the
elections. Some of the alleged violations related to –
2
Failure of State owned media to comply with s 61(4) of the
Constitution;
3
Conduct of traditional leaders and rogue security elements;
6
Wearing of partisan clothing;
10
Fixing of polling station returns (V11 forms) on the outside of
polling stations;
11
Postal Ballots;
12
Counting of Presidential Ballots;
13
Undue influence, threats, injury, damage, harm or loss to voters; and
14
Bribery, provision of seed and fertiliser packs.
The
Court notes that the High Court of Zimbabwe was in recent months
seized with and determined issues pertaining to –
-
The
conduct of postal voting;
-
The
design of the Presidential ballot;
-
the
twenty-third respondent's obligation to facilitate voting by civil
servants engaged in election duties on election day.
These
judgments are extant and the Court will therefore not, at this
juncture, address the applicant's contentions in respect of those
issues.
The
Court will also not, in this abridged version of its judgment,
address the totality of the allegations made by the applicant, as
listed above. This will be done in the main judgment.
The
standard of proof in election petitions
In
terms of authorities of this and other Courts, the declaration of
results in terms of s 110((3)(f)(ii) of the Act creates a
presumption of validity of that declaration.
The
onus
and burden of proof in this application therefore rests with the
applicant and it is for him to prove to the satisfaction of the Court
that there were irregularities in the conduct of the election that
warrant the relief sought.
The
general position of the law is that no election is declared to be
invalid by reason of any act or omission by a returning officer or
any other person in breach of his official duty in connection with
the election or otherwise of the appropriate electoral rules if it
appears to the Court that the election was conducted substantially in
accordance with the law governing elections and that the act or
omission did not affect the result.
As
an exception to this general position, the Court will declare an
election void when it is satisfied from the evidence provided by an
applicant that the legal trespasses are of such a magnitude that they
have resulted in substantial non-compliance with the existing
electoral laws.
Additionally,
the Court must be satisfied that this breach has affected the results
of the election. In other words, an applicant must prove that the
entire election process is so fundamentally flawed and so poorly
conducted that it cannot be said to have been conducted in
substantial compliance with the law. Additionally, an election result
which has been obtained through fraud would necessarily be
invalidated.
From
the aforegoing, the Court will only invalidate a presidential
election in very limited and specific circumstances, if:
-
The
results are a product of fraud.
-
The
elections were so poorly conducted that they could not be said to
have been in substantial compliance with the law.
It
is for the applicant to prove to the satisfaction of the Court that
the election was conducted in a manner which fell substantially below
the statutory requirements of a valid election and that the result
was materially affected warranting a nullification of the result or
invalidation of the election.
THE
NEED FOR THE APPLICANT TO HAVE PRODUCED SOURCE EVIDENCE
A
significant part of the applicant's challenge related to the result
and figures announced by the Electoral Commission. Allegations were
made that the results announced were incorrect and did not reflect
the true will of the people of Zimbabwe.
In
so doing the applicant alleged irregularities relating to voter
patterns, polling station returns, inflation of votes, over voting
and ghost voting, among other infractions, which will be dealt with.
In short it is alleged that there was rigging.
The
applicant made general allegations against the first respondent. No
direct allegations of personal manipulation of the process were made
against the first respondent. All allegations were made without
particularity and specificity. This would have been required to prove
allegations of complicity with the Zimbabwe Electoral Commission by
the winner of the election, alleged to be the deliberate beneficiary
of the allegedly improper election.
Nevertheless,
if the applicant had proved that the Zimbabwe Electoral Commission
committed irregularities and met the legal requirements of such a
petition as to the requisite standard of proof, this alone would have
been sufficient to invalidate the election even in the absence of
direct involvement by the first respondent.
The
applicant also made several allegations of irregularities against the
Zimbabwe Electoral Commission related to its failure to discharge its
obligations in terms of the law. No proof or evidence was adduced by
the applicant of these allegations.
The
best evidence in this instance would have been the contents of the
ballot boxes themselves. That is the primary source evidence.
Evidence of the contents of the ballot boxes compared to the
announcements by the Zimbabwe Electoral Commission and the evidence
within the applicant's knowledge would have given the Court a clear
picture of any electoral irregularities or malpractices if any had
occurred. No such proof was adduced by the applicant to support his
allegations.
The
electoral law is designed to protect the vote. The protection of the
ballot cast by every citizen who participated in the election is
fundamental. It is one that the Court should guard jealously.
The
avenues available to an aggrieved candidate are meant to ensure that
he or she has all the evidence available to him or her to assist the
Court.
It
follows that when the result was declared in the early hours of
Friday 3 August 2018 the applicant knew he was an aggrieved
candidate. He may not have known the exact or precise reason why he
was aggrieved but the law-makers in their wisdom created an avenue
for the applicant to ensure that he had all the evidence necessary to
prove his case if he wished to exercise his rights to challenge the
result. Time was on his side to obtain such evidence from the
election residue.
The
applicant's remedies to access the ballot and election residue are
in the Electoral Act under ss
67A and 70.
Under s 67A he could have sought a recount of the votes within
forty-eight hours; whilst under s 70 he could have approached
the Electoral Court for an order for the unsealing of the ballots.
These
remedies are designed to protect each aggrieved candidate. They
ensure that a decision to embark on unnecessary litigation
challenging the validity of an election is not made. They also ensure
that a litigant who embarks on litigation has the necessary evidence
with which to establish his or her case. In that way, any doubt as to
whether or not the election itself was properly conducted on the
election day, and whether the true expression of the will of the
voters was announced would have been addressed by the parties before
the application was lodged.
The
remedies provided for by the electoral law do not only protect the
right of an aggrieved candidate to information, they direct him or
her to the source of the kind of evidence that would be required to
prove the allegations of irregularities committed by the Zimbabwe
Electoral Commission in the conduct of the election. So these
are remedies not for the respondents' benefit. They are meant to
protect the rights of those who are aggrieved by the results of the
Presidential election.
Armed
with the evidence either from a recount where the figures are alleged
to be incorrect, or analysis of the contents of the unsealed boxes,
the applicant would have had a clear and indisputable picture of the
outcome of the election. He would have been clear whether any
malpractices and irregularities regarding the actual votes cast and
results announced would be substantiated. He chose not to exercise
this right.
The
electoral law protects the voters and the candidate in the process
involved. This is from the delivery of the ballot papers to the
polling station, to the collection of the ballot paper, to voting in
secret in the booth, to counting of the ballots, and the sealing of
the ballot boxes at the end of the election.
The
applicant was at large to have his polling agents at each and every
polling station around the country. Observers were also free to
participate in the process. The applicant's agents would have
observed the voters arriving, being given the ballot papers as
applicants for these papers before the presiding officers, going on
to vote in secret in the booths, and having the votes counted in
their presence if they were there. At the end of the counting all
agents present would have signed the V11 forms if they so wished and
given copies.
If
the applicant had placed before the Court the V11 forms from all the
polling stations where he could have had polling agents, a simple
analysis of those V11 forms against the V11 forms in the ballot boxes
would easily have done the following –
(a)
It would have disposed of any questions regarding the number of votes
for any given polling station or constituency,
(b)
It would have addressed any question of over-voting;
(c)
It would have debunked allegations of upsurges of voters after a
particular time, for instance, what is alleged to have happened in
Mashonaland Central Province;
(d)
It would have addressed issues of differences in voting patterns and
numbers of votes for parliamentary and presidential elections,
-
It
would also have addressed issues of improbability of similar and
identical results at polling stations.
-
It
would have addressed questions regarding the accuracy of the result
and data provided by the Commission.
In
essence the entire challenge to the correctness of the figures
relating to the result of the election would have been easily
resolved. If there was any irregularity, it would have been easily
detectable.
When
pressed why the primary source evidence was not adduced, the
applicant's practitioner gave a bald and unsubstantiated allegation
that the election residue had been tampered with. It was argued by
the applicant's counsel that the residue was a poisoned chalice. In
other words, by the time you would have sought to have the ballot
boxes unsealed they would already have been manipulated. It was
argued that such an exercise would have been futile. The Zimbabwe
Electoral Commission contends that the prescribed procedures were
complied with.
Logic
therefore dictates that if the applicant and his agents (or any other
political candidate whose agent had the forms) had the V11 forms in
their custody, they could easily have compared them against the
residue and further compared them against the result declared.
Even
assuming the applicant did not have agents at every polling station,
a sample constituency could have been used. If there were instances
where for one reason or another the forms were not recorded as they
should have been, specific evidence detailing the gaps or
discrepancies should have been produced to the Court. Such evidence
could then have been used to support the allegations of malpractice
levelled against the Zimbabwe Electoral Commission. Whether the
evidence adduced was sufficient proof of the allegations of irregular
conduct made against the Zimbabwe Electoral Commission would have
become a separate question for determination.
In
the second instance, the applicant argues that the crux of his case
stands even without that primary evidence. It was argued that an
attack on the accuracy and correctness of the figures produced by the
Zimbabwe Electoral Commission itself would suffice to invalidate the
election. The Zimbabwe Electoral Commission specifically and
systematically explained and answered the allegations that were made
against it.
ON
THE CASE PRESENTED BY THE APPLICANT OF IRREGULARITIES
The
applicant made several generalised allegations of electoral
malpractices against the Zimbabwe Electoral Commission. He made a
startling submission that these generalised allegations would suffice
to prove the case without resort to the primary source evidence.
The
Zimbabwe Electoral Commission nonetheless took time to analyse the
allegations against it and produced clear and tangible evidence to
refute the allegations, making it incumbent on the applicant to
discharge the onus
which was on him. The onus
to prove the case is not on the person accused. The accused person
does not have to prove his or her innocence. The respondents in this
case needed only to respond.
Signed
and unannotated V11 forms
The
Zimbabwe Electoral Commission proved through the V11 forms produced
that the allegations that some forms had been signed and not
populated was false, as there appears to have been a deliberate
fabrication of evidence with an intent to mislead the Court. Without
access to the sealed ballot boxes residue, this allegation simply
remains as refuted.
Disenfranchisement
of 40,000 teachers
The
applicant alleged that some 40,000 teachers were denied their right
to vote on the election day and that this had a direct effect on the
result. The allegation was very general and unsubstantiated. It is
not evident how the figure of 40,000 was calculated.
There
was no evidence from the teachers themselves that they were
registered voters who wanted to exercise their right to vote and were
posted against their will. On the contrary, it was shown by the
Zimbabwe Electoral Commission that some teachers had deliberately
opted not to vote in favour of being posted to stations where such
right could not be exercised.
The
Constitution gives every Zimbabwean citizen who is eligible to vote a
right to vote. It is not an obligation under our Constitution to
vote. There was no evidence how many of these were registered voters.
There was no evidence of the effect this allegation even if it were
proven would have had on the result. There was no guarantee that
every teacher would have voted for the applicant.
The
allegations relating to ghost polling stations, or polling stations
created at the time of voting, lacked specificity and particularity.
They were in any case disproved by the evidence adduced for the
twenty-third and twenty-fourth respondents. And these are the kind of
allegations that would have been easily proved by the evidence in the
sealed ballot boxes.
THE
ELECTION RESULT AND THE ADMISSION BY ZEC
On
3 August 2018 the Zimbabwe Electoral Commission announced that
Emmerson Dambudzo Mnangagwa, having achieved the required 50% plus
one vote from the election, was declared to be the duly elected
President of Zimbabwe. The declaration was made in terms of section
110(3)(f)(ii)
of the Electoral
Act,
which reads:
“(f)
subject to paragraph (h), after the number of votes received by each
candidate as shown in each constituency return has been added
together in terms of paragraph (e), the Chairperson of the Commission
(or, in his or her absence, the Deputy Chairperson or, in his or her
absence, a Commissioner designated by the Chairperson) shall —
(i)
where there are two candidates, forthwith declare the candidate who
has received the greater number of votes to be duly elected as
President of the Republic of Zimbabwe with effect from the day of
such declaration; or
(ii)
where there are more than two candidates, forthwith
declare the candidate who has received more than half the number of
votes to
be duly elected as President of the Republic of Zimbabwe with effect
from the day of such declaration; or
(iii)
where there are more than two candidates, and no candidate has
received more than half the number of votes, forthwith declare that a
runoff presidential election shall be held on the date fixed by the
President in terms of section 38(1)(a)(iii) (that is to say, a fixed
date not less than twenty-eight and not more than forty-two days
after the polling day or last polling day, the case may be, of the
original election):
Provided
that the Electoral Court, on the application of the Commission, may
for good cause extend the period;
…”
The
declaration as set out in these provisions of the law is the legal
event. This is upon any candidate reaching the 50% plus one vote
threshold. Whether a candidate has received 50% plus one vote of the
total number of votes cast is a question of fact. The declaration can
only be changed or altered by this Court in terms of s 110
(3)(i),
which reads:
“(i)
a declaration by the Chairperson of the Commission (or, in his or her
absence, the Deputy Chairperson or, in his or her absence, a
Commissioner designated by the Chairperson) under paragraph (h)
[shall] be final, subject to reversal on petition to the Electoral
Court that such declaration be set aside or to the proceedings
relating to that election being declared void;”.
The
declaration itself is final subject to the requirements of reversal.
The Zimbabwe Electoral Commission made a critical admission that the
exact figures were incorrect and minor adjustments were made after
data capturing errors were corrected. It was submitted that this
affected the figures relating to the first respondent's win by 0.1%
but did not affect the result of the election.
It
is important to understand what the result of an election is. The
result of the election is the declaration of a winner having reached
the 50% plus one vote, no other thing. Any votes after that point
have no bearing on the result of the election.
The
amendment by the Zimbabwe Electoral Commission has no effect at all
on the result of the election and the declaration as interpreted in
this case. In fact, an error in counting and amendment of figures is
envisaged in the Act itself, which makes the provisions of s 110
subject to those of s 67A. The law allows for the adjustment. If
the applicant was aggrieved by the counting and figures availed, he
should have utilised the remedies availed to him by statute to get
the relevant evidence.
In
this case, the applicant, in our view, needed more evidence than just
the mere admission by the Zimbabwe Electoral Commission of the
inaccuracy of the figures to show that the result was affected. If it
was and there was in fact no winner having 50% + 1 vote, there would
be grounds for a re-run or any other appropriate remedy. The
applicant chose not to pursue this avenue.
CONCLUSION
In
the final analysis, the Court finds that the applicant has failed to
place before it clear, sufficient, direct and credible evidence that
the irregularities that he alleges marred the election process
materially existed. The applicant did not prove the alleged
irregularities as a matter of fact.
It
would be unnecessary in the circumstances to ask and answer the
question whether irregularities materially affected the result of the
election. As already indicated, it is an internationally accepted
principle of election disputes that an election is not set aside
easily merely on the basis that an irregularity occurred. There is a
presumption of validity of an election.
This
is so because as long as the election was conducted substantially in
terms of the Constitution and all governing laws it would have
reflected the will of the people. It is not for the Court to decide
elections; it is the people who do so. It is the duty of the courts
to strive in the public interest to sustain that which the people
have expressed their will in. Therefore, the application ought to be
dismissed.
ORDER
In
the result, the following order is made –
(1)
The application is dismissed with costs.
(2)
Emmerson Dambudzo Mnangagwa was duly elected President of the
Republic of Zimbabwe.
(4)
In terms of section 93(4)(a) of the Constitution of Zimbabwe
EMMERSON DAMBUDZO MNANGAGWA is duly declared the winner of the
Presidential election held on the 30th
of July 2018.
GWAUNZA DCJ:
I agree
GARWE JCC:
I agree
MAKARAU
JCC:
I agree
HLATSHWAYO,
JCC:
I agree
PATEL
JCC:
I agree
BHUNU
JCC:
I agree
UCHENA
JCC:
I agree
MAKONI
JCC:
I agree
