The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

Procedural Issues

In response to counsel for the applicants submissions on the merits, counsel for the respondents raised several procedural issues which he should have raised as preliminary issues.

He, in his first procedural issue, contented that the applicants application was not made in the correct form. He submitted that it should have been in Form 29 with appropriate modifications.

Counsel for the applicants, in reply, submitted that the applicants' application was made in the correct form and that even if it was not in the correct form, Rule 229C provides that such failure shall not, in itself, be a ground for dismissing the application.

The court can, however, dismiss such an application if it has caused prejudice to the other party which cannot be cured by directions for service of the application on the other party with or without an order of costs.

An examination of the applicants application reveals that it is in Form 29B when it should be in Form 29 with relevant modifications as provided by the proviso to Rule 241(2).

The applicants have, however, not suffered any prejudice.

They were served with the application and they took no issue until during their counsel's response on the merits.

Even though the issue was raised no prejudice was alleged.

I am satisfied that nothing turns on this as either Rule 229C or Rule 4C could be resorted to, to condone the application's failure to strictly comply with the proviso to Rule 241(2).

Tsitsi Veronica Muzenda, the petitioner, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) party, stood as a Senatorial candidate for the Gweru-Chirumanzu senatorial constituency during the harmonized elections held in Zimbabwe on 29 March 2008. She competed for office with Patrick Kombayi, the first respondent, of the Movement for Democratic Change-Tsvangirai party MDC-T. The election was run and conducted by the Zimbabwe Electoral Commission, the second respondent....,.

The duty to present an election petition is cast on the losing candidate by section 167 of Electoral Act [Chapter 2:13].

Its format and period of presentation are set out in section 168 of the Electoral Act.

It has to be presented within 14 days after the date on which the declaration of the result in the last constituency for Senatorial elections is made.

The duty is placed by the Electoral Act on the petitioner to establish this fact. It is this fact alone which triggers this legal right for her. Failure by her to establish it would be fatal to her case for the reason that she would have failed to bring her self into the protective ambit of the Electoral Act.

The facts alleged in the affidavit deal with corrupt practices which occurred before and during the election but not after the elections.

It is only illegal practice, as defined, that occurred after the announcement by the Constituency Elections Officer in the last constituency that triggers the 30-day notice period from the date of the alleged illegal practice that is provided in the proviso to section 168(2) of the Electoral Act. 

The petitioner could only bring her petition within the 14 day period.

Section 167 of the Electoral Act [Chapter 2;13] outlines the causes of action in an election petition. These are;

(i) The absence of qualification;
(ii) Disqualification;
(iii) Electoral malpractice;
(iv) Irregularity; or
(v) Any other cause whatsoever.

The first two grounds arise directly from the candidate. Electoral malpractice and irregularity may arise from the actions or omissions of the candidate, his chief election agent, his election agent or of any other person.

Part XXI, in sections 155, 156 and 157 of the Electoral Act deals with how an Electoral Court may determine petitions.

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment.

The grounds of appeal are set out in the Notice of Appeal, which, in relevant part, reads as follows:

"Grounds of Appeal

1. The learned Judge a quo erred in finding that a proper election of Speaker of Parliament was conducted in terms of the Constitution and the law.

2. The learned Judge erred in condoning the first respondent's failure to implement and enforce his own procedures for the election.

3. The learned Judge a quo erred in finding that the participants' exposure of their completed ballot papers was not a violation of the secret ballot.

4. The learned Judge a quo erred in finding that a secret ballot took place.

5. The learned Judge a quo erred in interpreting section 39(2) of the Constitution, as read with Ordinance 6 of the House of Assembly Standing Orders, as directory and not peremptory."

The grounds of appeal set out in the Notice of Appeal, as read with the record and submissions by counsel, raise essentially the following two issues for determination in this appeal –

(a) Whether the exposure of the secret ballot before the depositing of the ballot papers in the ballot box by some Members of Parliament amounts to a violation of the voting by secret ballot, and, if so, whether that rendered the election of the Speaker null and void; and

(b) Whether the failure by the Clerk of Parliament of Zimbabwe (hereinafter referred to as "the Clerk") to control the voting process and the consequent chaotic conditions constitute a failure by the Clerk to conduct an election in terms of section 39 of the Constitution, as read with the Standing Orders.

The background facts of this case are as follows:

The first respondent is the Clerk of the Parliament of Zimbabwe. Pursuant to Proclamation No.7 of 2008, the Clerk convened the first meeting of Parliament on 25 August 2008 for the purposes of swearing in the Members of Parliament and electing the presiding officers.

The Clerk's mandate to conduct these elections is derived from the Standing Orders – in the case of the House of Assembly, Standing Order No.6.

Two candidates were nominated for the office of Speaker, namely, Mr Paul Themba-Nyathi (hereinafter referred to as "Nyathi") and the second respondent (hereinafter referred to as "Moyo").

Standing Order No.6 provides that if more than one person is proposed as Speaker of Parliament, the Clerk shall conduct an election of the Speaker by ballot box.

The election took place and the Clerk announced that Nyathi had garnered ninety-eight votes and Moyo had garnered one hundred and ten votes. The Clerk accordingly declared Moyo the winner. Moyo assumed the office of Speaker.

The appellants want the election of Moyo as Speaker set aside.

I now wish to deal with the issue of whether the election was conducted by secret ballot as is required by section 39 of the Constitution, as read with Standing Order No.6 of the Standing Orders.

The appellants contend that some Members of Parliament from the MDC-T party, having marked their ballot papers in the secrecy of the polling booths, openly displayed their marked ballot papers before depositing them in the ballot box. The appellants contend that the majority of the Members of Parliament from the MDC-T party did this, while the respondents' position is equivocal.

The court a quo, however, concluded that of the two hundred and eight Members of Parliament who voted, most probably only six Members of Parliament displayed their votes in the manner alleged by the appellants. The Members of Parliament who are named as having done this are the Honourable Biti, the Honourable Khupe, the Honourable Chambati, the Honourable Chibaya, the Honourable Denga and the Honourable Moyo, the second respondent. In this regard, the court a quo concluded as follows at p11 of the cyclostyled judgment (judgment no. HH28-10):

"It is fairly clear that Hon. Biti took the lead in brandishing his vote and that several of his colleagues were then emboldened into emulating his possibly impolitic example. However, they did so of their own free will and, more significantly, they did so after having cast their votes in secret."

The conclusion of the court a quo that at least the six Members of Parliament named displayed their ballot papers after marking them but before depositing the ballot papers in the ballot box cannot be faulted.

This conclusion is fortified by the following factors:

It is specifically alleged by the appellants that Moyo displayed his ballot paper before depositing it. Moyo filed an affidavit in this case in which he does not deny this allegation. Five other Members of Parliament are named as having displayed their ballot papers before depositing them in the ballot box. None of these five Members of Parliament have deposed to affidavits denying the allegation.

In my view, it would have been easy for Moyo to secure such affidavits from the named Members of Parliament denying the conduct alleged. Moyo, instead, filed an affidavit from a Member of Parliament, the Honourable Mpariwa, in respect of whom no such allegation was made. The Honourable Mpariwa does not deny that the named Members of Parliament had conducted themselves in the manner alleged by the appellants. Indeed, if anything, she appears to concede that that in fact did occur.

In the result, I agree with the conclusion of the court a quo that at least six Members of Parliament displayed their ballot papers after marking them but before depositing them in the ballot box.

Having concluded that at least six Members of Parliament displayed their ballot papers before depositing them in the ballot box, the issue that falls for determination is the legal consequences of such conduct.

Section 39 of the Constitution provides as follows:

"(2) The Speaker shall be elected in accordance with Standing Orders from among persons who are or have been members of the House of Assembly and who are not members of the Cabinet, Ministers, or Deputy Ministers:

Provided that a person who is not a member of the House of Assembly shall not be elected as the Speaker unless he is qualified in accordance with Schedule 3 for election to the House of Assembly."

Standing Order 6 of the Standing Orders provides as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of Speaker by a secret ballot."…,.

The Clerk issued specific instructions on how the secret ballot was to be conducted. According to the second appellant, Moses Mliza Ndlovu, the Clerk issued the following instructions:

"4. The first respondent announced the procedure to the effect that according to the Standing Rules, an election would be held by secret ballot. To this extent, he assured the Honourable Members present that all necessary provisions had been made to guarantee the secrecy of the ballot.

5. The first respondent then explained that in terms of the procedure, he would issue a ballot paper to each Member present. Thereafter, the Member would put a mark against the name of the candidate the Member would wish to be the Speaker of Parliament.

6. The ballot paper had two candidates for Speaker of Parliament, namely, the second respondent nominated by the Movement for Democratic Change (Tsvangirai) (MDC-T) and Mr Paul Themba-Nyathi nominated by the Movement for Democratic Change (MDC).

7. The first respondent then explained that the ballot paper, having been duly marked in secret in a booth, would be folded by the voting Member and deposited in a ballot box.

8. The first respondent then explained that, having cast the vote, the Honourable Member would then leave the House."

The Clerk does not deny that the above accurately reflects the instructions he gave. From the above, three essential elements of the secret ballot emerge –

(a) Each Member of Parliament was to be issued with a ballot paper;

(b) Each Member of Parliament was to mark the ballot paper in the privacy or secrecy of the polling booth; and

(c) Having marked the ballot paper in secret, the Member of Parliament was to fold the ballot paper to maintain the secrecy of the vote and deposit it in the ballot box, thus completing the process of secret voting.

It admits of no debate that the Clerk would then be required to count the vote to complete the process.

In my view, the counting of the votes cast is an essential part of the process of the election by secret ballot….,.

The appellants' case is that Standing Order 6 is peremptory and enjoins the Clerk to conduct an election of the Speaker by secret ballot.

Counsel for the appellants submitted that the display of the ballot papers before depositing them in the ballot box, by some Members of Parliament, is an aberration from the provisions of section 39 of the Constitution, as read with Standing Order 6 of the Standing Orders. He argued that such aberration rendered the election of the Speaker null and void.

Ms Damiso and Mr Chaskalson, for the respondents, submitted that the appellants' complaint is based on a fundamental misconception relating to the nature of a secret ballot.

They submitted that when an election takes place, by secret ballot, each voter has the right to have his or her vote kept secret. This right to secrecy, like any other right, can freely be waived by a voter who chooses to make known how he or she voted. The fact that any voter chooses to disclose how he or she voted cannot in itself compromise the secrecy of the ballot. They submitted that it is only when a voter is factually prevented from maintaining the secrecy of his or her vote that there is a violation of the secrecy of the ballot. On this basis, they argued that the display by six Members of Parliament of their ballot papers before depositing the ballot papers in the ballot box is not a violation of the principle of a secret ballot.

This argument found favour with the learned Judge in the court a quo. In this regard, he had this to say at p11 of the cyclostyled judgment:

"Having regard to the dictionary definitions and the case authorities cited by counsel, the gravamen of a secret ballot, in my view, is that each voter is enabled to cast his vote privately and in secret, without fear of having his voting choice identified or ascertained by others. In this respect, it is incumbent upon the regulating authority to provide the requisite wherewithal for that purpose. The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation, and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."

It was further argued that all that was required of the Clerk was for him to provide the guarantee that Members of Parliament voted in secret if they so wished. Those who wished to penetrate the veil of secrecy, as did the six Members of Parliament, were entitled to do so without contaminating the process.

In support of the above contention, both counsel for the respondents placed reliance on the case of Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T)…, and on the case of J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,.

Mr Chaskalson, in particular, submitted that the right to secrecy of the ballot, like any other right, can freely be waived by any voter who chooses to make known how he or she voted. He further submitted that this point has been made clear by United States judgments dealing with unsuccessful challenges to electoral laws. For this submission, he relied on the following remarks of BROWN J in J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,:

"…, this privilege, of voting a secret ballot, has been held to be entirely a personal one. The provision has been generally adopted in this country for the protection of the voter, and for the preservation of his independence, in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot. The voter has the right, at the time of voting, voluntarily to make public his ballot, and its contents in such case may be proven by the testimony of those who are present. Public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it."

Mr Chaskalson also relied on the following passage from State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932)…,:

"…, it has been uniformly held that under such provisions as that contained in section 6 of Article VI of our Constitution the elector cannot be compelled to violate the right of secrecy of his ballot but the great weight of authority is to the effect that such constitutional provision guarantees a personal privilege which might be waived. In State vs Anderson 26 Fla 240, 8 So 1, this Court, speaking through MR CHIEF JUSTICE RAINEY, said:

'The Constitution provides, section 6, Article VI, that in all elections by the people the vote shall be by ballot, and in those by the Legislature it shall be viva voce. The material guarantee of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote. The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in position (sic) to know for whom he has voted, or shall know unless the voter shall of his own free will inform him.': COOLEY's Constitutional Limitations m.p. 604 et seq."…,.

Further reliance was placed on the following passage from COOLEY's work Constitutional Limitations 7ed 912:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in position (sic) to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case (sic) of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others who may accidentally, or by trick or artifice, have acquired knowledge on the subject should not be allowed to testify to such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged…,."

Mr Chaskalson further submitted that the fact that any voter chooses to disclose how he or she voted cannot compromise the secrecy of the ballot. He argued that if this were the case secret ballots would be open to abuse by voters who, fearing that their candidates were at risk of losing the election, could invalidate a vote by merely waving their ballots about. It is only when a voter is factually prevented from maintaining the secrecy of his vote or her vote that there is a violation of the secrecy of the ballot. He further argued that on the facts of this case there is no suggestion of any such violation of the secrecy of the ballot. Consequently, the primary complaint of the appellants must be rejected.

The two cases cited by Mr Chaskalson, namely, J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932), were concerned with the constitutionality of statutory provisions that permitted voting by absentee voters such as soldiers serving abroad. The basis of challenging the constitutionality of the statutes providing for the absentee voters was that they violated the secrecy of the ballot guaranteed by the State Constitution, Article VI section 6.

Section 6 of Article VI declared that all elections by the people shall be by ballot, and all elections by the General Assembly shall be viva voce….,.

The contention, which was dismissed in the above American cases in respect of which the above cited passages were made, was that statutes allowing absentee votes would of necessity lead to the identification of the voter, thereby violating the secrecy of the ballot guaranteed by the Constitution of the State of North Carolina. The ratio decidendi of the court, in dismissing the challenge, was that the impugned statutes, by allowing voters to vote by postal ballot, did not compel voters to disclose their votes leading to a breach of their right to voting in secrecy. The courts held that the impugned statutes simply provided the voter with a choice either to vote secretly by presenting himself or herself at the polling booth or vote by postal ballot if he so wished, thereby compromising the secrecy of his or her vote. The court held, in both cases, that a secret ballot is not compulsory so far as the voter is concerned, for the statute provides that the ballot may be deposited for the voter by the Registrar or by one of the judges of the election or by the voter himself if he so chooses.

I wish to make the following observations regarding the above cases.

The judgments cited above are judgments of foreign courts. They are not binding but they are persuasive. The higher the courts are in their jurisdictions the more persuasive are their judgments. The cited judgments are not from the highest courts in North Carolina.

The second observation I wish to make is that the courts in the cited cases were interpreting statutes in their jurisdictions. They were not making pronouncements on general jurisprudential principles.

When interpreting statutes, courts are guided primarily by the wording and the context of the statutes. A court should not simply translocate one court's interpretation of a statute in that court's jurisdiction to an interpretation of a statute differently worded in its own jurisdiction.

In the above judgments, the courts of North Carolina were interpreting Article VI section 6 of the Constitution of North Carolina, which provided that:

"In all elections by the people, the vote shall be by ballot, and, in those by the Legislature, it shall be viva voce."

The courts, in both J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932) interpreted Article VI section 6 as conferring a right to vote in secret, which can be waived. They ascribed this meaning to Article VI section 6 despite the use of the peremptory word "shall" in the section. I have some doubts about the correctness of this interpretation.

Be that as it may, I accept the conclusion in those two cases that where a Constitutional provision confers on the voter the right to vote by secret ballot that right is intended to protect the voter and the voter has the right to waive that right without violating the secrecy of the ballot.

I also accept the proposition that public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it: see also Boyer v Teague 106 NC 625; McRary on Elections 3ed…,; and Crolly Con. Lim. 7Ed…,.

However, section 39 of the Constitution, as read with Standing Order 6, is not a constitutional or statutory provision conferring the right to vote on a voter in the form of the Member of Parliament.

Section 39 of the Constitution, as read with Standing Order 6, prescribes how a particular officer in Parliament, namely, the Speaker, is to be elected. It expressly provides that if more than one person is proposed as Speaker the Clerk of Parliament shall conduct the election of the Speaker by a secret ballot. In other words, the use of the words "by a secret ballot" in the statute is prescribing the method by which a Speaker is to be elected.

The language is peremptory language.

It would be a different story if the wording of Standing Order 6 were to the effect: "If more than one Member is proposed Members of Parliament may vote by secret ballot to elect the Speaker."

The golden rule of interpretation is that one has to give the words of a statute their primary meaning.

If that rule is applied to Order 6 of the Standing Orders, then, the inescapable inference is that the Order is addressing the Clerk and is dictating to him the manner by which a Speaker should be elected.

In view of the explicit language of the statute, it is not open to the Clerk, or any Member of Parliament, to substitute the method of electing a Speaker with another method of their own choice, such as by open ballot. Put differently, it was not open, for instance, to Members of Parliament to tell the Clerk that they were waiving their right to vote for the Speaker by secret ballot or that they wished to vote for the Speaker by open ballot either individually or as a group. That option was not open to the Members of Parliament as a whole or to individual Members of Parliament.

Voting by secret ballot, as I have already stated, involves the following three essential procedures:

(i) Firstly, that each Member of Parliament receives a ballot paper;

(ii) Secondly, that each Member of Parliament indicates on that ballot paper the candidate of his choice in private and to the exclusion of the public; and

(iii) Thirdly, that, having done so, the Member of Parliament deposits his or her ballot paper into the ballot box privately without disclosing his or her ballot paper to the world.

Once the ballot paper has been deposited into the ballot box the process of voting by secret ballot, so far as the voter is concerned, is completed.

It would not be a violation of voting by secret ballot if the person discloses whom he has voted for at that stage. The voting by secret ballot by the voter is complete: see Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T).

The next stage to complete the process provided for in terms of section 39 of the Constitution, as read with Standing Order 6, is for the Clerk to count the votes cast to determine the winner.

This stage, in my view, is an essential process in the election of the Speaker of Parliament by secret ballot:

Because of the peremptory language of section 39 of the Constitution, as read with Standing Order 6, the Clerk has no discretion over what procedure is to be followed when electing the Speaker. It has to be by secret ballot. The use of any other method to elect the Speaker would be a failure to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

In casu, the appellants alleged that some Members of Parliament received ballot papers, marked the ballot papers in the privacy of the polling booth, and then, instead of folding the ballot papers to maintain the secrecy of their vote and before depositing them in the ballot box, they displayed them to fellow Members of Parliament to show them how they voted. Thereafter, they deposited the ballot papers in the ballot box.

The court a quo concluded that six Members of Parliament conducted themselves in this manner. The conclusion that only six out of the two hundred and eight voters voted in this manner is supported by the evidence and it cannot be faulted.

The learned Judge in the court a quo also concluded that the six Members of Parliament who displayed their votes complied with the requirement of a secret ballot because they were entitled to pierce the veil of secrecy without falling foul of section 39 of the Constitution, as read with Standing Order 6.

I respectfully disagree with the learned Judge in this regard.

The six Members of Parliament, by displaying their ballot papers before depositing them in the ballot box, violated the secrecy of their ballots, thereby rendering their votes invalid for the purposes of section 39 of the Constitution, as read with Standing Order 6. This rendered their votes ineligible for counting for the purpose of determining the election of the Speaker.

The Clerk proceeded to count these six votes as valid votes in determining the outcome of the election. This contaminated the process.

Put differently, he counted oranges and apples in a process where the law provides that only oranges be counted.

In short, the Clerk failed to act as directed by section 39 of the Constitution, as read with Standing Order 6, namely, to conduct an election by secret ballot. He conducted a cross-breed election, in that it was partly secret and partly open. That is not what the law provides for.

In this regard, I am satisfied that the Clerk failed to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

Having concluded that the Clerk did not comply with the statutory requirements in his conduct of the election, the issue that falls for determination is, what are the legal consequences that flow from the failure to comply with the statutory provisions?

Section 39 of the Constitution, as read with Standing Order 6, has directed that the Clerk shall conduct an election of a Speaker by secret ballot but has not provided what should be the consequence of the non-compliance with this peremptory direction by Parliament.

This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In that case, I cited with approval a passage from BENNION Statutory Interpretation…, which sets out how courts should approach that issue.

The learned author states that a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply. In that case, I had this to say at pp21-23 of the cyclostyled judgment:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute.

Yet the courts are forced to reach a decision.

It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So, the courts' answer has been to devise a distinction between mandatory and directory duties.

Terms used instead of "mandatory" include 'absolute', 'obligatory', 'imperative' and 'strict'. In place of "directory", the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised: see CRAIES Statute Law (7th edn, 1971) p61 n74. However, it is now firmly rooted.

Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). {As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)}.'

Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity.

One of these guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence and therefore the provision is directory."

MAXWELL on The Interpretation of Statutes 12ed…, says much the same as the above cited excerpt from BENNION.

Thus, the issue before this Court is to determine what Parliament intended to be the consequence of the Clerk's breach of the statutory requirement to count only regular votes in determining the outcome of the election of the Speaker.

I have come to the conclusion that Parliament intended to render invalid an election wherein the Clerk fails to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6. I have come to this conclusion for two reasons -

(i) Firstly, because of the peremptory language of the provision in question; and

(ii) Secondly, because of the use of different language from the one used by Parliament when it legislated on the same subject matter in another statute, namely, section 177 of the Electoral Act [Chapter 2:13].

Dealing with the issue of the use of peremptory language in section 39 of the Constitution, as read with Standing Order 6, there can be no doubt that the language of the relevant section is peremptory, having regard to the use of the word "shall".

I accept that there has been movement from the principle of strict exaction of compliance with the wording of the statute to avoid invalidity to a more flexible approach giving the courts some latitude in determining the consequences of non-compliance.

My understanding of the new approach is that, while the use of the word "shall" is no longer conclusive of the intention of Parliament to render invalid non-compliance, it certainly still remains cogent evidence of such intention. This Court has, in a number of recent cases, held that failure to comply with the peremptory direction of a statute leads to invalidity. In this regard, Rule 29 of the Supreme Court Rules provides as follows:

"29 Entry of appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state –

(a) The date on which, and the court by which, the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his legal practitioner."…,.

In Jensen v Acavalos 1993 (1) ZLR 216 this Court held that by use of the word "shall" compliance with the requirement of Rule 29 was peremptory and that failure to comply with the Rule rendered the Notice of Appeal a nullity and that such a notice cannot be condoned or amended.

KORSAH JA, at 219D, had this to say about the Notice of Appeal that did not comply with Rule 29 of the Supreme Court Rules:

"This Notice of Appeal was defective for non-compliance with the mandatory provisions of Rule 29, subrules (c), (d) and (e) which require the applicant or his legal representative to state: (i) whether the whole or only part of the judgment is appealed against; (ii) the ground of appeal to be set forth concisely and in separately numbered paragraphs; and (iii) the exact nature of the relief which is sought."

The learned JUDGE OF APPEAL further stated, at pp219H-220D:

"The Notice of Appeal, being bad for non-compliance with the Rules, was not cured by the filing, on 3 January 1990, of grounds of appeal without a prayer. Indeed, even if the grounds of appeal filed on 3 January 1990 had contained a prayer for relief, it would not have been effectual in validating the defective Notice of Appeal.

The reason is that a Notice of Appeal which does not comply with the Rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper Notice of Appeal to be filed, the appeal must be struck off the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A) at 574 C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O)…, at 183, KLOPPER JP held that a fatally defective compliance with the Rules, regarding the filing of appeals, cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant Rule.

With this view I most respectfully agree; for if the Notice of Appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC) at 1172I, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse'."

GUBBAY CJ and MANYARARA JA concurred.

In Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) MALABA JA…, expressed the same sentiments when he stated at 149E-G:

"A nullity cannot be amended. In Jensen v Acavalos 1993 (1) ZLR 216 (S) KORSAH JA at 220B said that the reason why a fatally defective Notice of Appeal could not be amended was that:'…, it is not only bad but incurably bad.'

Citing Hattingh v Pienaar 1977 (2) SA 182 (O) at 183 for authority, the learned JUDGE OF APPEAL said that what should actually be applied for is an extension of time within which to comply with the relevant Rule and condonation of non-compliance.

In Business Equipment Corp v Baines Imaging Group 2002 (2) ZLR 354 (S), a Notice of Appeal which did not state the date on which the judgment appealed against was given, in contravention of section 29(1)(a) of the Rules of the Supreme Court, was held to be fatally defective, and the procedure stated in Jensen's case supra was approved as the appropriate remedy in having a proper Notice of Appeal placed before the court. See also Talbert v Yeoman Products (Pvt) Ltd S-111-99, SC111-99."

The learned JUDGE OF APPEAL further stated at p150B-C:

"As no valid Notice of Appeal was delivered and filed within fifteen days of the date when the decision of the Labour Court was given, there was no appeal before the court and to merely insert the relevant date in the defective Notice of Appeal, as suggested by Mr Muskwe, without an application for an extension of time within which to institute the appeal and for condonation of non-compliance with the Rules of Court, would be grossly irregular. The matter had to be struck off the roll."

It is quite clear from the above authorities that failure to comply with peremptory language of a statute can lead to a nullity.

Equally, there are decisions of this Court wherein it has been held that non-compliance with peremptory statutory provisions does not necessarily lead to a nullity. See Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) and the cases referred to therein.

The above authorities can be reconciled on the basis that the use of peremptory language is one of a number of indicators of the legislative intent where such intent is not explicitly stated. This obviously is a departure from the principle of strict exaction of compliance with the wording of the statute that I referred to earlier.

In my view, the use of peremptory language, such as the words "shall" or "must" in a statute is no longer conclusive evidence of the intention of Parliament, but remains cogent evidence of such intention.

As I have already stated, I concluded that Parliament intended to render null and void an election in which irregular or invalid votes were counted together with valid votes to determine the outcome of the election of the Speaker for two reasons; namely, the peremptory language of the section and the use of different language from the one used by the Legislature on the same subject matter in a different statute.

The proposition that generally speaking Parliament, just like an individual, uses the same words or language to evince the same intent and different words or language to evince a different intent is grounded in elementary common sense.

MAXWELL on The Interpretation of Statutes 12ed devotes a whole chapter on the presumptions arising from the change of language in statutory interpretation…,. His opening paragraph of this subject matter reads:

"From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or series of cognate Acts, there follows the further presumption that a change of wording denotes a change in meaning; Ricket v Metropolitan Railway Co. (1867) LR 2 HL 175, per LORD WESTBURY; ex p. Haines [1945] KB 183; Evans v Evans [1948] 1 KB 175.

'Where the Legislature,' said LORD TENTERDEN CJ, 'in the same sentence uses different words, we must presume that they were used in order to express different ideas'; R v Inhabitants of Great Bolton (1828) 8 B & C 71 at p74)."

For the presumption to arise, the change of words does not necessarily have to be in the same section or the same Act. It can be from one statute to another; see MAXWELL on The Interpretation of Statutes…, where the learned author states that:

"There are many modern cases on change of wording, and they fall roughly into three groups, according to whether the language alters (i) within the same section, (ii) within the same Act, (iii) from one statute to another."

For authority for the third category, which bears resemblance to the facts in casu, the learned author cites the following authorities; Att-Gen. for Northern Ireland v Gallagher [1963] AC 349; B v B and H (L intervening) [1962] 1 All ER 29; Re P. (infants) [1962] 1 WLR 1296; Irwin v White, Tomkins and Courage, Ltd [1964] 1 WLR 387; Att.-Gen. of the Duchy of Lancaster v Simcock [1966] Ch.1; Seabridge v H.Cox & Sons (Plant Hire) Ltd [1968] 2 QB 46; Wild v Wild [1968] 3 WLR 1148.

While the authorities cited by MAXWELL relate mainly to historically connected statutes, I see nothing in principle that should limit the presumption to preceding statutes to the exclusion of statutes on the same subject matter but not historically connected. After all, Parliament is presumed to be familiar with its own Acts. The corollary, that Parliament is ignorant of its own Acts, is simply untenable.

Thus, at the time of enacting Standing Order 6, in 2005, in terms of which the Clerk acted, Parliament was familiar with the provisions of section 177 of the Electoral Act, which was enacted earlier. This particular provision has been included in no less than nine electoral Acts in this country since 1928.

In my view, it is permissible for a court to look at the language of another statute on similar or the same subject matter in the exercise to ascertain the intention of Parliament.

Section 177 of the Electoral Act, as appears from its heading, deals with the subject of the consequences of non-compliance with the Electoral Act. It provides as follows:

"177 When non-compliance with this Act invalidates election

An election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if, and only if, it appears to the Electoral Court that –

(a) The election was not conducted in accordance with the principles laid down in this Act; and

(b) Such mistake or non-compliance did affect the result of the election."

Section 177 of the Electoral Act clearly provides that it is only when non-compliance with the Act affects the result of the election that the election should be set aside. In effect, this section incorporates into the Electoral Act the doctrine of substantial compliance.

Section 39 of the Constitution, as read with Standing Order 6, provides for the election of the Speaker, but does not incorporate the principle of substantial compliance. In my view, if Parliament had intended that only non-compliance that affected the outcome of the election of the Speaker would render invalid such an election it would have used the same or similar language.

Also, in determining the intention of Parliament, I took into account the fact that no draconian consequences would flow from a declaration of invalidity of the election.

Parliament consists of a little over two hundred Members and ordering a re-election of the Speaker does not pose financial or logistical problems of any magnitude. If properly organised, as it should be, I do not see the election of the Speaker taking more than an hour and it should require only a minimum of resources.

I am also mindful of the fact that Parliament is one of the most revered institutions in our, or any, society. It consists of the highest concentration of political leadership of the country. Parliament makes the laws that we all obey. Parliament should, therefore, lead by example and should scrupulously obey its own laws.

The election of the Speaker should be an example of how an election should be conducted. This is particularly so in Zimbabwe which is plagued by contestation of election results. Parliament should use the election of the Speaker to set the best example to the rest of the country. It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance.

I do not wish to be understood as setting aside the election of the Speaker on the ground that it was chaotic. I am satisfied that the chaos and the conduct of Members of Parliament, generally, did not, on their own, affect the election to the extent that it can be concluded that the Clerk did not conduct an election. I am merely expressing concern that the Clerk failed to stamp his authority on the election and insist that Members of Parliament conduct themselves in accordance with his instructions. I, however, do not think that conduct, alone, is sufficient, on its own, to constitute a basis for setting aside the election of the Speaker.

Before concluding, I feel constrained to make the following observation in the interests of clarity.

I have read the judgment of SANDURA JA.

It is a mis-interpretation of this judgment to conclude that it seeks to reinstate the old principle of strict compliance with the letter of the statute to avoid invalidity. This judgment is based on what I considered to be the intention of Parliament as evinced by the language of the statute, and by contrasting the language of section 39 of the Constitution, as read with Standing Order 6, with the language of section 177 of the Electoral Act.

I also do not agree that the principle that a peremptory enactment must be obeyed was abandoned in the case of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

My understanding of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) is that it modified the principle by endorsing the movement away from strict compliance to a more flexible application of the principle. This is the only basis on which one can reconcile GUBBAY CJ's concurrence with the judgment of KORSAH JA in Jensen v Acavalos 1993 (1) ZLR 216 (S) and his judgment in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S). MANYARARA JA concurred with both judgments. This Court re-affirmed the modification of the principle in Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In the result, I have come to the conclusion that the six named Members of Parliament did not vote by secret ballot, and, therefore, their votes were irregular. The inclusion of the irregular votes in the determination of the final outcome of the election of the Speaker constitutes a failure to comply with section 39 of the Constitution, as read with Standing Order 6, providing for the election of the Speaker of Parliament by secret ballot, thereby rendering it invalid.

For the foregoing reasons I would allow the appeal. In the result, I make the following order –

1. The appeal is allowed with costs to be paid by the respondents jointly and severally the one paying the other to be absolved.

2. The order made by the court a quo is set aside and the following substituted –

"The application succeeds and the election of the second respondent as Speaker is hereby set aside."

ZIYAMBI JA: I agree

GARWE JA: I agree

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

MALABA DCJ: I have read the opinion expressed by the learned CHIEF JUSTICE. I regret that I am unable to agree with the decision that section 39(2) of the Constitution, as read with Standing Order No.6 of the House of Assembly Standing Orders ("Standing Order 6"), by implication, compels the nullification of the election upon proof that the Clerk of Parliament ("the Clerk"), who was under the obligation to conduct the election of the Speaker of the House of Assembly ("the Speaker") by a secret ballot, unlawfully counted invalid votes as secret ballots.

This case came to the Supreme Court by way of an appeal against the judgment of the High Court. The court a quo dismissed with costs an application for an order declaring that the election of the second respondent as the Speaker of the House of Assembly ("the House") on 25 August 2008 is null and void and set aside.

The applicants, who are members of the House who had taken part in the election of the Speaker, disavowed the application as an application for review. The substance of the relief sought and the reliance on the provisions of section 4(1) of the Administration of Justice Act [Chapter 10:28], however, show that it was an application for review.

The applicants alleged, in effect, that the Clerk who, as the administrative authority, was given the power to conduct the election of the Speaker by a secret ballot, in accordance with the machinery prescribed under section 39(2) of the Constitution, as read with Standing Order 6, failed to act in accordance with the requirements of the rule against counting invalid votes as secret ballots, and, as a result, affected their rights or legitimate expectation in the election.

A perusal of the papers filed in support of the application shows that the relief was sought on two grounds:

(i) The first ground was that there was "noise, utter chaos, and disorder" in the Chamber of the House at the time appointed by the Clerk for the holding of the election of the Speaker such that the environment never became conducive for conducting the election by a secret ballot.

(ii) The second ground was that, in violation of the secrecy of the ballot, and in defiance of the procedure laid down by the Clerk, some members of the MDC-T party came out of the polling booth with ballot papers, on which they had marked their votes, unfolded. The allegation was that they displayed the ballot papers to others to disclose for whom they had voted before folding the ballot papers and depositing them in the ballot boxes.

As part of the second ground, it was alleged that the Clerk was under a duty to stop or prevent the members of the MDC-T party from doing what they did, but, in disobedience of his duty, failed to do so.

It was not the applicants' case that the election of the second respondent, as the Speaker of the House, should be declared null and void because the Clerk counted invalid votes as secret ballots, thereby distorting the result of the election. The reason is that to do so would have involved an admission by the applicants of the fact that there was counting of secret ballots produced by the electoral process the applicants alleged had not taken place.

As the learned CHIEF JUSTICE arrived at the conclusion, with which I disagree, on the ground that the Clerk counted invalid votes as secret ballots, I will deal with the question whether in the machinery for the election of the Speaker, prescribed under section 39(2) of the Constitution, as read with Standing Order 6, the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, automatically nullifies the election.

My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.

Before determining the question whether the applicants established the grounds on which they sought the relief from the court a quo, I set out and construe the law in terms of which the election of the Speaker, by a secret ballot, was required to be conducted.

It is for the Legislature to make provision, by legislation, for matters relating to elections to office in institutions of a democratic Government. All matters relating to the organisation and procedure for election to the office of the Speaker of the House must be determined on the construction of the broad terms of the legislation enacted for the purpose by Parliament.

Section 39(1) of the Constitution imposes on the House an obligation to elect a presiding officer, to be known as the Speaker, at its first meeting after dissolution of Parliament and before proceeding to transact any other business. The election must therefore be held at the time prescribed under section 39(1) of the Constitution.

It is required to be an election by a secret ballot - only a secret ballot under the statute can give rise to a "result of the election."

The right to vote in the election of the Speaker, where more than one person is proposed for the post, is given to members of the House who would have subscribed the oath of loyalty and are present in the Chamber of the House at the time the election is called by the Clerk.

By section 39(2) of the Constitution, as read with Standing Order 6, the Clerk is appointed as the official to conduct the election required by section 39(1) where more than one person is proposed as Speaker. By the same provisions, the Clerk is enjoined to conduct the election of the Speaker by a secret ballot.

When the members elect a Speaker from candidates nominated they do so in their individual capacity. They are not acting as representatives of the people who elected them to the House.

Where the words "conduct the election" are used as they are used in section 39(2) of the Constitution, as read with Standing Order 6, in respect of a situation where more than one person is proposed for election for a post, it is clear that the word "election" is used with the intention that it should be understood to mean the whole combined and continuous process for bringing about the result of the election. It is a process consisting of a number of material steps prescribed by law, beginning with the call for the election and ending in the declaration of the result of the election.

For the purposes of section 39(2) of the Constitution, as read with Standing Order 6, all these steps were driven by the free exercise of the right to vote by the electors directed by the Clerk entrusted with the responsibility of conducting the election by a secret ballot.

The words "conduct the election" compendiously describe the number of duties the Clerk would be expected to carry out to ensure that members who were desirous to elect the Speaker by means of a secret ballot did so freely. So, to "conduct the election" in the context of section 39(2) of the Constitution, as read with Standing Order 6, denotes the concept of legality, in the sense that it contemplates the making of decisions or the taking of actions in the performance of duties, the effect of which is to direct or manage the activities of the voters according to the prescribed requirements of the law to achieve the object or purpose of ensuring the election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot.

In construing section 39(2) of the Constitution, as read with Standing Order 6, it is important to bear in mind that the right to vote vested in the members present and voting at the first meeting of the House is not affected by the requirement that the election should be conducted by a secret ballot. The statute relates to procedure alone and directs the mode in which the right to vote is to be exercised by the electors.

The Legislature chose the secret ballot for its optimum benefits and prescribed it as the only method by which the elector would validly exercise his or her right to vote for the Speaker. At the same time, it imposed on the Clerk the general obligation to provide the mechanisms and procedures for the recording, processing, and protection of the secret ballot to bring about the election of the Speaker.

Every voter was entitled to express his or her will on the candidates by voting "for" or "against" through the legally permitted form of voting.

As section 39(2) of the Constitution, as read with Standing Order 6, prescribes a secret ballot and its attendant requirements as a condition the elector has to perform if he or she is desirous to give a valid vote for a candidate in the election of the Speaker, it is addressed to both the voter and the Clerk who has to conduct the election by a secret ballot. The validity of a vote and of any act performed by the Clerk must be measured in terms of its conformity with the requirements of a secret ballot prescribed as the essence of the election of the Speaker.

In my view, it is wrong to place on section 39(2) of the Constitution, as read with Standing Order 6, a narrow construction which views it as directed at the Clerk only. The Clerk does not vote. He does not produce the result of the election. His functions are managerial. The elector is the driver of the election by a secret ballot. The Clerk and the voter must be viewed in the context of the legal relationship of the rights and duties they have to exercise or discharge to achieve the statutory objective or purpose.

The prescription of a secret ballot, as the method for the election of the Speaker, is based on the acceptance of the principle that it promotes and protects freedom of expression of choice of a preferred candidate without undue influence, intimidation, and fear of disapproval by others. The elector is given the right to mark the choice of one candidate from another, or others, in secret. The words "secret ballot" are used in the wide and narrow sense to mean the process by which the ballot is recorded, processed, and protected, as well as the ballot in which there is complete and inviolable secrecy designed to drive away the fear of disclosure and secure to the voter freedom from undue influence, intimidation, and fear of disapproval by others.

A "secret ballot" is therefore a ballot cast freely by a voter, in secret, when no other person is present and aware of what is happening.

The ballot is secret to the voter, in the sense that he or she is the only person who knows for whom he or she is voting.

Whilst the caster of the vote remains unknown, the secrecy of the ballot is maintained and the vote has been effectively cast in the election of the Speaker. It is the valid vote to be counted to ascertain the result of the election of the Speaker by a secret ballot.

To maintain the secrecy, made to be extremely material as the foundation to the validity of the vote itself, the voter must meet certain conditions.

He or she is required not to put on the ballot paper, on which the vote is given, any writing or mark by which his or her identity as the voter can be known by any other person looking at the ballot paper. The voter is also required not to display or expose the ballot paper after he or she has given the vote so as to disclose to any other person for whom he or she voted before depositing the ballot paper in the ballot box.

So essential is the secrecy of the ballot to its validity that any departure by the voter from these conditions, designed for the purpose of ensuring the maintenance thereof, must render the vote void.

The mandatory obligation imposed on the Clerk was to perform the duties put on him to provide the mechanisms and procedures that enabled the voter who was desirous to exercise the right to vote by a secret ballot to do so. The duties he had to perform were to ensure that the vote, given in secret, was recorded, processed, protected, and counted, to bring about the election of the Speaker.

The primary object of any act performed by the Clerk in the discharge of the obligation to conduct the election of the Speaker by a secret ballot would have been the maintenance of the secrecy of the ballot given by the voter, unless the voter himself or herself failed to observe, strictly, the conditions essential to the validity of the vote as a secret ballot. The Clerk, as the official appointed by the Legislature, and given the responsibility of conducting the election of the Speaker by means of a secret ballot, was under an absolute duty not to do anything in the execution of his duties that would have the effect of compelling the voter to violate the secrecy of the ballot.

Although it does not say in express terms that the Clerk cannot record the vote in some other way, it is clear that section 39(2) of the Constitution, as read with Standing Order 6, makes the prescribed manner of recording the ballot by means of a ballot paper, properly drawn up and with the names of the candidates and the appropriate spaces where the mark by which the vote would be given, the only manner in which a secret ballot was to be given.

The Clerk has no discretion as to how the election should be conducted. He must conduct it by a secret ballot.

The valid vote in an election had to be one given for a candidate by means of a secret ballot. It was, therefore, the duty of the Clerk to provide the official ballot papers. It was his duty to put in place the polling booth in which the voters would mark the ballot papers, screened from observation by other potential voters. It was his duty to provide sealed and translucent ballot boxes in which the voters would deposit the marked ballot papers for safekeeping before counting.

The Clerk discharged these duties in accordance with the requirements of the law. He put in the Chamber of the House the polling booth and two ballot boxes and provided the ballot papers.

It was also the Clerk's duty to provide the procedure by which the secret ballot was to be recorded, processed, protected, counted, and results of the election based on it declared.

He, again, complied with this requirement.

The Clerk explained to the members that the voter would only mark his or her vote on a ballot paper delivered by him just before proceeding to the polling booth and that the ballot paper had to have an official stamp marked on the back. Upon receipt of the ballot paper, the member was to go immediately into the polling booth and there mark his or her ballot paper to express his or her choice. The voter was then required to fold the ballot paper up whilst in the polling booth, so as to conceal the vote, and then go and deposit the ballot paper, so folded up, into the ballot box. The voter was required to exhibit to the Clerk the official stamp on the back of the folded ballot paper before dropping it into the ballot box.

The procedure met the purpose of the legislation of ensuring equality of conditions for election to the office of Speaker for the candidates and the occurrence of an election based on universal, equal, direct, and personal suffrage freely expressed by a secret ballot.

It was the duty of the Clerk to monitor the proceedings and keep a continuous oversight of the actions of the voter as he or she moved from the polling booth to drop the ballot paper into the ballot box. In that way he would be able to detect conduct inconsistent with the exercise by the voter of the right to elect the Speaker in accordance with the procedure prescribed to ensure the maintenance of the secrecy of the ballot.

Once he detected such conduct, it was the Clerk's duty to act judicially and determine that the conduct of the voter had stripped the ballot of secrecy and declare the vote invalid and not to be counted.

At the end of the poll, the Clerk was required to open the ballot box in the presence of the agents of the candidates. It was his duty to empty the ballot box and open each and every folded ballot paper and inspect it to ensure that only those ballot papers which were not contrary to the provisions and spirit of section 39(2) of the Constitution, as read with Standing Order 6, as to secrecy, were counted in the election of the Speaker.

Before counting the valid ballot papers, the Clerk was required to group and arrange them under the names of the respective candidates by placing, in separate parcels, those which were secret ballots opposite the name of the same candidate and rejecting all invalid ballot papers.

The results of the election to be declared by the Clerk in an election of the Speaker conducted in terms of section 39(2) of the Constitution, as read with Standing Order 6, would not be the number of votes cast. The reason is that some of the votes would have lost their secrecy as they moved through the process, from the time they were given on the ballot paper in the polling booth to the time they were canvassed after the opening of the ballot box. The result of the election, under section 39(2) of the Constitution, as read with Standing Order 6, is the outcome of secret ballots counted as such.

The result of an election cannot include invalid votes because it is unlawful to count invalid votes as secret ballots. Courts do not ordinarily nullify that which has been done lawfully. Nullification is a remedy intended to be used to redress a wrong.

There is yet another important aspect of the right to secrecy of the ballot which needs to be considered before the determination of the question whether the applicants established the grounds on which they sought relief in the court a quo.

It is that the right to secrecy of the ballot, protected under section 39(2) of the Constitution, as read with Standing Order 6, is subject to the principle that everyone has a right to waive an advantage of a law made solely for his or her benefit and protection in his or her private capacity. He or she may dispense with the benefit or advantage, provided he or she does so without infringing any public right or public policy. See MAXWELL on The Interpretation of Statutes 12ed…,.

There is no legal obligation that a voter must vote by secret ballot.

The requirement of a vote by a secret ballot is justified on the principle which, without unacceptably encroaching on the rights of the persons concerned to stay out of the prescribed system of election, fosters the values of honesty, freedom, and reliability that should characterise electoral choice. As the voter must exercise the right to vote for the Speaker by a secret ballot given on the ballot paper freely, he or she can waive the right to the secrecy of the ballot at the time the vote is cast or at any time before he or she deposits the ballot paper in the ballot box.

The right to vote by a secret ballot includes the right of the voter to disclose to any other person for whom he or she voted. He or she can, in the exercise of that freedom, decide to put a writing or mark on the ballot paper at the time he or she casts the vote by which he or she can be identified as the voter and for whom he or she voted. He or she may decide to display to others the ballot paper so as to share the knowledge for whom he or she voted. So, a voter can, of his or her own free will, inform whomsoever he or she chooses for whom he or she voted. A secret ballot is not compulsory insofar as the voter who is not desirous of taking part in the election by a secret ballot is concerned.

The rule that there should be no writing or mark put by the voter on the ballot paper by which his or her identity as the voter can be revealed, and that the ballot paper should not be displayed to any other person so as to disclose for whom the vote was given, prescribes a condition of the validity of the vote.

The question whether there is a secret ballot for the purposes of the validity of the vote will depend for its answer on the actions of the individual voter.

In Jenkins v Board of Elections 180 NC 169 (1920), cited by Mr Chaskalson, it is correctly stated by BROWN J that:

"…, voting by ballot, as distinguished from viva voce voting, means a secret ballot, and…, the elector, in casting his ballot, has the right to put it in the box and to refuse to disclose for whom he voted and that he cannot be compelled to do so. But, this privilege of voting a secret ballot has been held to be entirely a personal one. The provision has been generally adopted…, for the protection of the voter and for the preservation of his independence in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot."

In State Ex Rel. Hutchins v Tucker et al 106 Fla 905 (1932), also cited by Mr Chaskalson in argument, BUFORD CJ quoted from COOLEY Constitutional Limitations 7ed…, where the learned author states:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in a position to question his independent action either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted; and, for the same reason, we think others who may accidentally or by trick or artifice have acquired knowledge on the subject should not be allowed to testify to such knowledge or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it, his ballot is absolutely privileged."

I turn now to determine the question whether the applicants established the grounds on which they based the application for the relief sought.

On the first ground, the first applicant, in the founding affidavit, said that there was "too much noise in the House" at the beginning of the process for the election of the Speaker.

The intention was to show that the Clerk was unable to manage the activities of the members according to the prescribed procedure for the achievement of the purpose of the electoral law.

He said the noise was caused by members belonging to MDC-T party who were pacing up and down the Chamber conferring noisily with each other in support of the second respondent. He said that was done "in a manner that created utter disorder and raised very serious tensions in the House."

After describing how the Honourable Biti displayed the ballot paper, after he had cast his vote in the polling booth, so as to disclose to others for whom he had voted, before folding the ballot paper up and depositing it into the ballot box, the first applicant said, in paragraph 32 of the founding affidavit:

"Honourable Biti's shocking and unprecedented conduct caused more than a fracas in the House as Honourable Members started shouting objections and counter objections, including trading insults, at the top of their voices, while the voting process degenerated into total disorder…,."

In paragraphs 3.9, 3.10, 3.15, 5, 6, and 11 of the opposing affidavit the Clerk said:

"3.9 The mood and atmosphere in the House of Assembly, on the occasion, was neither unique nor unprecedented. Members of the House of Assembly were meeting together for the first time after a fiercely contested general election. As can be expected, under the circumstances, the conversation was lively and the exchanges exuberant. There was a fair amount of good-humoured raillery, including political taunting, verbal sparring and bantering, all done by Members from all the political parties represented in what appeared to be a good spirit of joviality. This kind of conduct is not unusual in our Parliament or any other Parliament for that matter, and, accordingly, I did not consider it a cause for concern on this occasion.

3.10 It is my submission that what has been described by (the) applicant as 'gross disorder, chaos or fracas' in the House was actually nothing more sinister than increased hustle and bustle in the House, in turn the result of the increase in number of Members of the House (an increase in the membership from 150 to 210 as a result of Constitutional Amendment No.18)…,.

3.15 Notwithstanding the environment in the House that I have described in paragraphs 3.9 and 3.10 of this affidavit I was able to manage the entire proceedings of the day according to my present programme without a hitch of any kind. It is, therefore, my submission that quite contrary to (the) applicants' allegations of 'utter disorder and fracas' the proceedings progressed exceptionally smoothly…,.

5. I deny that at the time immediately before the elections took place there was too much noise and there existed a state of utter disorder in the House. I also totally deny witnessing any manifestation of serious tensions. What I did witness in the House was the atmosphere that I have described in paragraphs 3.9 and 3.10 of this affidavit.

6. Save to confirm that I did call the House to order whenever I deemed it necessary, and, by so doing, achieved a continuing level of order which enabled me to discharge my obligation and safeguard the progress and integrity of the voting process as well as all other proceedings of that day the contents of this paragraph (25 of the founding affidavit) warrant no comment….,.

11. I totally deny that there was total disorder in the House which I failed to control. If such a state of disorder had existed, the process of voting would have been impossible - which it was not. Generally, Members remained in their places, heard their names being called, followed the order on the list, approached, took possession of the ballot papers, and proceeded to vote privately. After voting they resumed their places without impediment in an exceptionally orderly manner given their numbers and the congestion in the Chamber."

The court a quo found, on the facts, that there was not so much noise as to cause chaos or utter disorder, as described by the first applicant.

The finding was justified by the evidence.

The relevance of raising the issue of noise was to show that the Clerk was disabled from performing his duties to conduct the election of the Speaker by a secret ballot. The applicants did not refer to specific duties the Clerk failed to perform because of the noise. To the contrary, the facts showed that all the Members who were present and desirous to vote did so.

Each of the two hundred and eight members received a ballot paper from the Clerk and went into the polling booth where he or she marked his or her vote on the ballot paper in secret. Some of the members came out of the polling booth with their ballot papers folded to conceal the vote and dropped the ballot papers into the ballot boxes after exhibiting the official stamp on the back to the Clerk. Other members came out of the polling booth with their ballot papers unfolded and displayed them to others so as to disclose for whom they had voted before folding them and dropping the ballot papers into the ballot box.

All the members responded to the alphabetical order in which their surnames were called.

They could not have done that in the context of the environment of chaos or utter disorder described by the applicants.

The first applicant conceded, in paragraph 25 of the founding affidavit, that the Clerk occasionally intervened to restore order when it was necessary to do so.

It was indeed the duty of the Clerk to maintain order during the electoral process.

By that admission, the first applicant corroborated the Clerk, who said that he was able to act and control the situation when he considered that the noise would interfere with his ability to conduct the election by a secret ballot as required by the law.

The Clerk was not a mere moderator. He was the governor of the electoral process for the purposes of securing the proper conduct of the election. As such, his evidence had to be accorded appropriate weight, where it was supported by that given by the applicants.

It is of interest to note that the Minister of Youth Development, Indigenisation and Empowerment, the Honourable Kasukuwere, and the Honourable Member, Mr Zhuwawo, admit, in the affidavits filed in support of the applicants, that when they called out to draw the attention of the Clerk to the objections they were raising to what they considered was a violation of the requirements of a secret ballot by members of the MDC-T party, who displayed their ballot papers to others so as to disclose for whom they had voted, the Clerk told them not to make noise.

According to the two members, what was shouted were objections to the conduct of displaying ballot papers. The objections were not intended to obstruct the Clerk in the conduct of the election. They were not the confused and undesirable sounds characteristic of noise. The environment cannot be accurately described as characterized by complete absence of order.

In view of the fact that all the two hundred and eight members went through the process by which they gave their votes on the ballot papers and dropped them into the ballot boxes, with some displaying their ballots to others so as to show for whom they had voted, the allegation that there was so much noise that the atmosphere was not conducive for conducting the election of the Speaker by a secret ballot was not substantiated. The atmosphere was characterised by the factors described by the Clerk, which enabled him to conduct the election of the Speaker fairly and efficiently.

The first ground on which the application for relief was based was not proved.

The second ground was based on the allegation that it was unlawful for the members of the MDC-T party who displayed their ballot papers to do so and for the Clerk not to stop or prevent them from doing what they did.

The intention was to show that the actions of the voters concerned, and the failure to act by the Clerk, undermined the process by which the object of the electoral law was to be achieved, thereby violating the rights of the applicants to elect the Speaker, or be elected as the Speaker, by a secret ballot. In that regard, the first applicant said, in the answering affidavit:

"100: It is particularly notable that (the) second respondent himself was one of the Honourable Members from the MDC-T party that unlawfully opened and displayed their marked ballot papers and this fact alone, which is captured in the DVD evidence, is enough to show that his claim to be Speaker is legally vacuous….,.

103. The fact that some Honourable Members, actually most of them belonging to (the) second respondent's MDC-T party including (the) second respondent, defiantly opened and displayed their marked ballot papers simply means that there was no lawful election and (the) second respondent is wishfully wrong to claim that he was lawfully elected from an election that was in fact unlawful."…,.

The applicants invariably described the conduct of the members of the MDC-T party, in displaying their ballot papers to others so as to disclose for whom they had voted, in terms which show that they considered the conduct unlawful.

They said it was "shocking behaviour"; "a brazen violation of the secret ballot"; a "deliberate and defiant violation of the election procedure"; "open and defiant violation of the secret ballot"; "blatant misconduct"; "the failure to observe and respect a fundamental Parliamentary Rule in the election of (the) Speaker"; "the rampant and systematic violation of the secret ballot"; "the failure to conduct the votes in secret as required"; and "an irregularity which is a grave breach of the Rules of Parliament."

The effect of the contention advanced by counsel for the appellants, on appeal, was that the members of the MDC-T party, who displayed the ballot papers to others so as to disclose for whom they had voted, had no right to do so.

In paragraph 6 of the answering affidavit, the first applicant emphasised the fact that he considered the failure by the Clerk to stop or prevent the members of the MDC-T party who displayed their ballots from doing so as unlawful. He said:

"6. His failure principally arose from his inability or unwillingness, for whatever reasons, to ensure that no Member left the polling booth, after voting, with an unfolded ballot paper, and that no Member openly displayed his or her marked ballot paper to any other Member for whatever reason."

In paragraph 178 of the answering affidavit, the first applicant summarized the issue for determination by the Court as follows:

"At issue is only the unchallenged fact in the papers, namely, that unfolded and marked ballot papers were displayed by many Honourable Members of the MDC-T party, including (the) second respondent, outside the polling booth during the election and that this was in violation of the procedure that marked ballot papers should be folded in the polling booth and (the) first respondent did nothing to stop this violation."

Counsel for the appellants argued, on appeal, that the failure by the Clerk to prevent or stop the members of the MDC-T party from displaying their ballot papers was evidence of breach by him of the duty to conduct the election of the Speaker by a secret ballot.

The court a quo found, on the facts, that only six members of the MDC-T party were shown to have come out of the polling booth with unfolded ballot papers and to have displayed the ballot papers to others so as to disclose for whom they had voted.

The finding was, again, justified.

Although the first and second applicants had alleged, in their affidavits, that "many" members of the MDC-T party had displayed their ballots, no evidence was produced to support the allegation.

The use of the word "many", in a case in which they were not able to state the number of the members of the MDC-T party who acted in the manner alleged, suggests that there was an element of exaggeration.

This is particularly so when regard is had to the fact that the applicants also said "some" members of the MDC-T party displayed their ballot papers so as to disclose to others for whom they had voted.

Given the fact that the applicants were seeking an order of nullification of the election, it was necessary that their case be based on clear evidence of the number of voters who displayed their ballot papers. The legal consequence would have been that the voters concerned had disenfranchised themselves by their own conduct.

Proceeding as the parties did on appeal, on the basis that six members displayed their ballots so as to disclose for whom they had voted, did the applicants show that those voters acted unlawfully? Did they ipso facto show that the Clerk acted unlawfully in failing to stop or prevent those voters from behaving in the manner they did?

I must add that the only reasonable inference from the circumstances of the case is that the six members displayed their ballot papers to other members of the MDC-T party to disclose to them that they had voted for the second respondent.

All members, including the six who displayed their ballot papers, had the right to waive the right to the secrecy of their votes.

In displaying the ballot papers to others, the six members exercised their right to share with any other person the knowledge for whom they voted.

As long as they were not coerced or compelled to expose their ballot papers to others, the voters acted lawfully. The power conferred on the Clerk, to conduct the election of the Speaker by a secret ballot, is limited by the right of the voter not to maintain the secrecy of his or her ballot.

The Clerk was not under any duty to stop or prevent the voters from voluntarily displaying their ballot papers to others so as to disclose for whom they had voted.

Whilst the duty on the Clerk, to maintain the secrecy of the ballot given by the voter, requires that he should refrain from doing anything that would compel the voter to disclose to any other person how he or she voted, it cannot be relied upon to justify conduct by which the voter would be prevented from freely exercising the right to disclose to whomsoever he or she chooses for whom he or she voted because the secrecy of the ballot is protected under the law for the benefit of the voter.

The Clerk owed the duty not to do anything to compel the voter to disclose for whom he or she voted to the voter. He cannot discharge the duty to the detriment of the interests of the voter by preventing or stopping him or her from exercising the right of disclosure of information as to how he or she voted.

It is clear that the duty on the Clerk was not to interfere with the recording, processing, and protection of a secret ballot as long as the voter maintained the secrecy of the ballot.

The applicants did not show that the Clerk acted unlawfully by not stopping or preventing the six members from displaying their ballot papers to others so as to disclose that they had voted for the second respondent. His duty was to manage and direct the activities of the electors in accordance with the rules designed to ensure a free and fair election by a secret ballot.

The applicants failed to establish the two grounds on which they sought the relief from the High Court by way of an order declaring the election of the second respondent as the Speaker of the House null and void and set aside.

The application ought to have been dismissed at that stage of the proceedings.

As I disagree with the learned Judge, on the comments he made on the legal consequences of the conduct of the six members in displaying their ballot papers to others so as to disclose for whom they voted, and also disagree with the learned CHIEF JUSTICE on the conclusion he reached that the counting by the Clerk of invalid votes cast by the six members as secret ballots nullified the election of the second respondent as the Speaker of the House, and not just the affected votes, I proceed to express my opinion on these matters.

The words "shall conduct the election of Speaker by a secret ballot" are placed in a statute by the provisions of which the Legislature recognised the possession by the members of the House present at its first meeting of the right to vote for the Speaker by a secret ballot.

The rule of law is that a right to vote must be exercised strictly according to the terms of the statute which confers it.

What this means, on the facts of this case, is that when the six members displayed their ballot papers to others, so as to disclose for whom they had voted, they voluntarily took their votes out of the system of the election by a secret ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6. By the same conduct by which they waived the right to the secrecy of their ballots, the voters lifted the veil of secrecy from the ballots rendering them void and of no value in the election of the Speaker.

I do not accept, as a correct statement of the law, the contention advanced by Mr Chaskalson and Ms Damiso, on behalf of the respondents, and accepted by the learned Judge in the court a quo, that the six ballots remained valid votes, notwithstanding the fact that they had been displayed by the voters concerned to others so as to disclose for whom they had been given.

The learned Judge, at p11 of the cyclostyled judgment, said:

"The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."…,.

The statement that, a voluntary display by a voter of the ballot paper so as to disclose to other people for whom he or she voted does not "detract from the secrecy" of the vote, cannot be a correct statement of the legal effect of such conduct on the secrecy of the ballot affected.

The object of the ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6, is to secure complete secrecy as a condition of its validity, to be maintained not only by the voter desirous to elect the Speaker but by the official entrusted with the responsibility of conducting the election by a secret ballot during the electoral process, including the time when the counting of the votes takes place.

How can the official be able to maintain complete secrecy of a ballot in the face of conduct by the voter which removes the secrecy from the ballot? How the ballot can retain its secrecy thereafter I cannot imagine.

The secrecy is conferred on the ballot at the time the vote is given on the ballot paper in the polling booth. It must, however, be maintained thereafter to ensure the validity of the vote in the election of the Speaker.

It is clear, from the object of the statute and the procedure for voting, that a ballot paper which has a writing or mark made on it by which the identity of the voter can be known or one that is displayed to other people so as to disclose for whom the vote was cast, gets stripped of the secrecy of the ballot. The secret as a secret ceases to exist.

The ballot becomes void and cannot be counted in the election by a secret ballot.

The view expressed by the learned Judge did not take into account the effect of the requirement of the procedure provided by the Clerk for voting by a secret ballot.

The duty put on the voter desirous of maintaining the validity of his or her ballot in the election of the Speaker was that, after marking the ballot paper in the privacy of the polling booth, he or she would fold the ballot paper so as to conceal the ballot and keep it so folded until he or she deposited the ballot paper in the ballot box for safekeeping. The rule was to ensure the preservation of the secrecy of the ballot for the purpose of its validity in the election.

The direct effect of the voter displaying the ballot paper to other people, so as to disclose to them for whom he or she voted, is the invalidation of the ballot as a secret ballot.

Without pretending that there was no criterion by which a secret ballot had to be identified, I think the conclusion that the ballots displayed by the six voters to others, so as to disclose to them for whom they had voted, did not lose their secrecy, does not accord with what seems to have been the intention of the Legislature.

The proposition that the invalidity of the votes does not occur at the time the ballot papers are displayed so as to disclose for whom the vote was given would create a situation which would be quite unclear, and, to a certain extent, even illogical. Every exercise of a right has a direct consequence. The exercise of the right to vote which removes the secrecy of the ballot cannot have the same consequence as the exercise of the right which maintains the secrecy of the vote.

Failure by the Clerk to respond to the actions of the six voters and formally declare the ballots void did not change the fact that the ballots had been rendered invalid by the very actions of the voters.

The votes remained invalid at the time the Clerk counted them as secret ballots. He was not under any duty to count invalid votes as secret ballots. The statute is, in effect, clear that in no case will votes be allowed which are in any form other than the form of a secret ballot.

The result of the election of the Speaker, by a secret ballot, was not the number of votes cast, as some of them would have lost the essential element of secrecy as they travelled in their journey from the time they were cast to the time of counting. The result of the election was who was elected by a secret ballot.

The counting of invalid votes that had lost their secrecy affected two classes of voters:

(a) The first class is of voters who deliberately exercised their right to waive the benefits of the secrecy of the ballot by displaying the ballot papers to others so as to disclose for whom they had voted.

(b) The second class is that of voters who kept the knowledge for whom they voted to themselves.

The first class of voters had no right or legitimate expectation that their votes would be counted as valid votes. In this case, they did not, as a matter of fact, seek to enforce any such right or legitimate expectation. They appreciated the fact that they did not have such a protection. If anything, the legitimate expectation would have been that the votes they had voluntarily stripped of secrecy be not counted as secret ballots.

The second class of voters had the right or legitimate expectation that their votes and the election based on them be declared lawful. The applicants belonged to this class of voters. It appears that they are acting against their own interests and those of other voters in this class.

What right did they seek to protect or enforce by an order of nullification of the election?

If it is the right to a fair and free election by a secret ballot, they had to first show that it was violated by the respondents. They failed to show that violation.

Where there is proof of violation of electoral rights, such as the right to vote or to stand for election, the need to enforce the rights under judicial protection may require that the election be set aside if it was shown that the violation had undue influence on the result of the election.

There cannot be a remedy without proof of violation of a right.

The learned CHIEF JUSTICE reached the conclusion that nullification of the election was the only remedy for the unlawful conduct by the Clerk, of counting invalid votes as secret ballots. The reason was that, whilst imposing on the Clerk the mandatory obligation to conduct the election of the Speaker by a secret ballot, section 39(2) of the Constitution, as read with Standing Order 6, did not provide a remedy for the disobedience of the command.

The conclusion that nullification of the election was the only remedy for what, in reality, was a nullity in respect of the six votes, could only have been reached by implication of what is the intention of Parliament. It would be based on a construction of section 39(2) of the Constitution, as read with Standing Order 6, which presumes that it is the intention of the Legislature that voters who had complied strictly with the law and voted by a secret ballot for the Speaker should lose their valid votes on account of a failure by an official to discharge his duty not to count invalid votes as secret ballots.

The principle of law to be applied is that where an enactment imposes an obligation but is silent as to the remedy to be awarded for disobedience, a court must ascertain, from the language by which the obligation is imposed, whether it is the intention of the Legislature that nullification of the offending conduct should be the remedy to be awarded without any limit as to the scope of its operation or application.

MAXWELL on The Interpretation of Statutes 12ed…, summarises the principles to be applied as follows:

"…, when a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance: is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)?

In some cases, the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the regard to them involving nothing more than liability to a penalty, if any, were imposed for breach of the enactment.

'An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' Woodward v Sarsons (1875) LR 10 CP 733.

It is impossible to lay down any general rule for determining whether a provision is imperative or directory.

'No universal rule', said LORD CAMPBELL LC, 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' Liverpool Borough Bank v Turner (1860) 2 De. G F & J 502 at pp507, 508.

And LORD PENZANCE said:

'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act; and, upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.' Howard v Bodington (1877) 2 PD 203 at p211."

See also Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

There is no question that section 39(2) of the Constitution, as read with Standing Order 6, is a mandatory enactment, the subject-matter of which is the election of the Speaker of the House. The object of the statute is to secure an election of the Speaker by members of the House qualified to vote by a secret ballot. The object is also to ensure, by the imposition of the obligation on the Clerk to conduct the election of the Speaker by a secret ballot, that there is provided mechanisms and procedures for the recording, processing, protecting, and counting of the secret ballot.

In other words, it is to ensure the establishment of an effective system for the election of the Speaker by a secret ballot conducted fairly, efficiently, and impartially.

The Clerk did put in place the mechanisms and procedures for the recording, processing, protection and counting of secret ballots.

Of the two hundred and eight members who voted, two hundred and two complied strictly with the requirements of the law for the exercise of their right to vote for the Speaker by a secret ballot - that is the main object for the achievement of which the provisions of section 39(2) of the Constitution, as read with Standing Order 6, were enacted.

He had assembled together all the necessary mechanisms which were required by the law governing the election to be put in place at the time prescribed to ensure delivery of the election of the Speaker by a secret ballot.

The six members who displayed their ballot papers to others, so as to disclose for whom they had voted, did so in the context of the mechanisms and procedures.

The failure committed by the Clerk was not to declare the invalid ballots void. It was the unlawful conduct of counting invalid ballots as secret ballots that has been used as a justification for the proposed award of the order of nullification of the election of the Speaker.

The disobedience did not relate to a secret ballot.

In other words, it is not a case of the Clerk failing to record, process, or count a secret ballot or declaring a secret ballot to be an invalid vote.

Had that been the case, the result of the election of the Speaker would have been affected by the disobedience of the Clerk to the duty to conduct the election of the Speaker by a secret ballot.

He had no power to decide what should be counted to ascertain the result of the election. He was told by the law what to count and for what purpose.

In this case, the Clerk counted what was at law a nullity as a secret ballot. His conduct did not give value to the invalid votes and did not in any way affect the result of the election of the Speaker.

The discounting of the invalid votes as well as the declaration of the conduct of the Clerk to be unlawful would not give rise to any difficulty in the determination of who the winner of the election of the Speaker was. The result of the election would not change.

The nullification of the election, based on a secret ballot, would subvert the purpose of the statute.

The general rule is that a declaration of nullity must be confined to the conduct in respect of a particular vote or class of votes, the invalidity of which has been established, unless the non-observance of the requirements of the law governing the specific duty is of a character which is contrary to the principle of an election by a secret ballot and is so great that it might have permeated the process and affected the result of the election: Phillips v Goff (1886) 17 QB 805.

There are numerous cases in which courts have struck off the invalid votes and declared conduct in respect of them void without affecting the election. The principle applied has been that to nullify the results of the election based on votes given by a secret ballot in strict compliance with the requirements of the law governing the election would imply that the provisions of the law complied with are misleading.

Had the Clerk declared the invalidity of the six votes at the appropriate stage in the election process, the declaration would have affected those votes only and not the other votes validly cast.

Why should the court, upon review of his conduct, in failing to do the right thing at the right time, go farther than the remedy the law had placed at his disposal had he acted lawfully?

The purpose of voting is not only the differentiation of the electorate and the expression of the will of the individual voters but also the ability to accept such decisions based on the will of the majority.

In my view, the principle of majority rule, on the basis of which results of democratic elections are determined, requires that courts should refrain from interfering with the will of the majority of voters expressed in accordance with the requirements of the law, on the ground that the official entrusted with the responsibility of conducting the election by a secret ballot unlawfully counted non-secret ballots as secret ballots - especially where there would be no confusion at all as to who is the winner following the discounting of the invalid votes.

An election may be set aside if it is not clear, upon determination of the conduct forming the ground on which the validity of the election is impugned, who was the winner.

In this case, there is clear evidence of the election of the Speaker of the House in accordance with the mode of voting prescribed by the law governing the election concerned.

The general principles of the law on which I have based my decision in this case and believe are applicable in the resolution of the questions raised were stated by LORD COLERIDGE CJ in Woodward v Sarsons (1875) LR 10 CP, referred to with approval in Chanter v Blackwood (1904) 1 CLR 39…,. He said:

"As the first point, we are of opinion that the true statement is that an election is to be declared void by the common law applicable to Parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws.

As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved, to its satisfaction, that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer.

This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation or to be prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not open or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a Returning Officer, or by other such acts or mishaps.

And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred.

But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void….,."

I am of the view that the construction of section 39(2) of the Constitution, as read with Standing Order 6, for the purpose of establishing the intention of the Legislature regarding the nullification of the election for the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, does not justify the conclusion that it is the intention of the Legislature that breach of any of the numerous duties imposed on the Clerk, under the general obligation to conduct the election of the Speaker by a secret ballot, should attract an order of nullification of the election regardless of the nature of the neglect of duty and its effect on the "result of the election".

There can be no doubt that the majority of the voters freely expressed their preference of the candidate they wished to be the Speaker in the secrecy of the polling booth and exercised their right to maintain the secrecy of the ballot in accordance with the requirements of section 39(2) of the Constitution, as read with Standing Order 6.

The majority of the voters were enabled by the process conducted by the Clerk to freely elect, by a secret ballot, the Speaker from the two candidates.

To declare such an election void would be to declare void what is lawful.

The remedy awarded would be wholly disproportionate to the wrong committed. There was, in fact, no failure by the Clerk to conduct the election by a secret ballot within the meaning of the statute. The ballots which were effectively cast decided who was elected as the Speaker of the House.

The fact that the Clerk counted invalid votes as secret ballots because he had not seen the conduct by which they were rendered void did not change their invalid status.

The question is whether the purpose for which the powers to conduct the election of the Speaker by a secret ballot were conferred on the Clerk was fulfilled.

A close interpretation of the facts leads to the conclusion that the purpose of the statute was accomplished.

An appropriate remedy is one which accords with the intention of the Legislature.

In this case, it is the one that upholds the result of the election of the Speaker by a secret ballot.

The valid result is that the second respondent was elected the Speaker of the House by a majority of voters who cast secret ballots.

It would, in my view, be contrary to fairness and justice to say, as a matter of principle, that the Legislature intended that the election of the Speaker conducted by a secret ballot in terms of the law be nullified on account of, say, a single invalid vote counted by the official conducting the election as a secret ballot. The intention of the Legislature must be that only irregularities which undermined the achievement of the object or purpose of the legislation, of ensuring an election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot, should vitiate the election.

In the exercise of review powers, the court a quo came to the conclusion that the improper counting of invalid votes as secret ballots was not an irregularity of the class the Legislature intended would vitiate the election.

The conclusion is, in my view, not evidence of a misdirection on the part of the court a quo.

It is when the irregularity affected the actual discharge of the positive duty to conduct the election by a secret ballot, and not by any other type of vote, that it may be used as a ground for challenging the validity of the election by a secret ballot.

The Legislature prescribed the standard which had to be used by everyone, including the court, as an accurate and reliable criterion for determining the ballot papers which had to be counted to ascertain the result of the election.

Applying the test, the Clerk came to a wrong conclusion in respect of the six ballots cast for the second respondent. They were not secret ballots qualified to be counted.

The court a quo was, on the facts, in a position to apply the criterion to the ballot papers and arrive at the conclusion the Clerk ought to have reached in respect of the invalidity of the six ballots had he properly applied the prescribed test.

If it had to set aside anything, the court a quo should have set aside the counting of the ballot papers made by the Clerk and not the election itself.

The legality of the election was dependent upon the will of the electorate having been freely expressed by a secret ballot reflected by accurate and reliable results. The unlawful act of counting six invalid votes as secret ballots because of the wrong application of the prescribed standards of differentiating secret ballots from non-secret ballots did not disable the court, which had jurisdiction to do so, from objectively scrutinising the facts and obtaining a reliable result of the election. The court would be acting within the bounds and limits of the requirement that there should have been brought about an election of the Speaker by secret ballot on the basis of universal, equal, direct, and personal right to vote freely expressed according to the principle of majority rule.

I would therefore dismiss the appeal....,.

The appeal is dismissed with no order for costs.

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 (the Chairperson of the Zimbabwe Electoral Commission), 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 -

1. 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 2^nd 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 2^nd 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 30^th of July 2018;

2. An order to the following effect -

(i) The twenty-fifth respondent (the Chief Executive Officer of the Zimbabwe Electoral Commission) 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 (Emmerson Dambudzo Mnangagwa), fifth (Noah Manyika), sixth (Harry Peter Wilson), seventeenth (Daniel Shumba), eighteenth (Violet Mariyacha), twentieth (Elton Mangoma), twenty-third (Zimbabwe Electoral Commission), twenty-fourth (the Chairperson of the Zimbabwe Electoral Commission) and twenty-fifth (the Chief Executive Officer of the Zimbabwe Electoral Commission) respondents.

For reasons that will be set out in the full judgment, the court ruled that the opposing papers filed by the fifth (Noah Manyika), sixth (Harry Peter Wilson), seventeenth (Daniel Shumba) and twentieth (Elton Mangoma) respondents were -

1. Not properly before the Court; and

2. Should be expunged from the record with no order as to costs.

The sixth (Harry Peter Wilson) and eighteenth (Violet Mariyacha) respondents indicated that they would abide by the decision of the Court….,.

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 (Zimbabwe Electoral Commission) and twenty-fourth (the Chairperson of the Zimbabwe Electoral Commission) 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 –

(i) Lack of independence of the Zimbabwe Electoral Commission;

(ii) Failure of State-owned media to comply with section 61(4) of the Constitution;

(iii) Conduct of traditional leaders and rogue security elements;

(iv) Failure to abide by general principles affecting conduct of elections;

(v) The Zimbabwe Electoral Commission's responsibility to compile voter's rolls;

(vi) Wearing of partisan clothing;

(vii) Failure to provide a complete Voters' Roll;

(viii) Voter Education;

(ix) Design of Presidential ballot paper;

(x) Fixing of polling station returns (V11 forms) on the outside of polling stations;

(xi) Postal Ballots;

(xii) Counting of Presidential Ballots;

(xiii) Undue influence, threats, injury, damage, harm or loss to voters; and

(xiv) 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 –

(i) The conduct of postal voting;

(ii) The design of the Presidential ballot;

(iii) The release of voters' rolls with voters' photographs to the parties; and

(iv) 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 section 110((3)(f)(ii) of the Electoral Act [Chapter 2:13] 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:

1. The results are a product of fraud.

2. 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…,.

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 sections 67A and 70. Under section 67A of the Electoral Act [Chapter 2:13], he could have sought a recount of the votes within forty-eight hours; whilst under section 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 re-count 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.

(e) It would also have addressed issues of improbability of similar and identical results at polling stations.

(f) 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 un-sealed 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 Un-annotated 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 THE ZIMBABWE ELECTORAL COMMISSION

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 [Chapter 2:13] 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 run-off 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, as 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 section 110(3)(i) of the Electoral Act [Chapter 2:13] 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 Electoral Act, which makes the provisions of section 110 subject to those of section 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.

(3) 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 30^th of July 2018.

On 24 August 2018 the Constitutional Court (“the Court”) handed down the abridged version of the judgment in the case in which the applicant challenged the validity of the Presidential election held on 30 July 2018. The order made was in these terms -

“The application ought to be dismissed. In the result, the following order is made –

(1) The court application is dismissed with costs.

(2) Emmerson Dambudzo Mnangagwa was duly elected as President of the Republic of Zimbabwe.

(3) In terms of section 93(4)(a) of the Constitution of Zimbabwe, Emmerson Dambudzo Mnangagwa is declared the winner of the Presidential election held on 30 July 2018.

(4) The papers filed by the fifth, the sixth, the seventeenth, the eighteenth and the twentieth respondents are expunged from the record of proceedings with no order as to costs.

(5) The application for condonation of non-compliance with the procedural requirements of section 93(1) of the Constitution, as given effect to by Rule 23(2) as read with Rule 9(7) of the Rules, is granted.”

The Court indicated that the full reasons would be issued in due course. These are they. The full

judgment incorporates the reasons that formed the basis of the abridged version.

BACKGROUND

On 30 July 2018, the Republic of Zimbabwe held harmonised Parliamentary, Local Authority and Presidential elections. The applicant and the first respondent participated as candidates in the Presidential election together with twenty-one other candidates.

On 3 August 2018, the twenty-fourth respondent (the Chairperson of the Zimbabwe Electoral Commission), 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 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 President. He lodged a court 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 President.

Section 93 of the Constitution provides, in part, 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 sought the following relief:

“1. 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 3^rd 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 3^rd 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)(a) of the Constitution of Zimbabwe, declared the winner of the presidential election held on the 30^th of July 2018;

2. 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.”…,.

An application lodged in terms of section 93(1) of the Constitution is a sui generis procedure. The remarks of the Constitutional Court in Tsvangirai v Mugabe and Ors CC20-17…, in that regard, are apposite. The Court said:

“Section 93(1) of the Constitution is based on a presumption of validity of the election of the President forming the subject of the petition or application lodged with the Court. Challenging the validity of the election of a President, in terms of section 93(1) of the Constitution, is as much an act of democratic self-government as acting in accordance with the Constitution and the Electoral Law to ensure free, fair and credible elections. The investigation by the Court, in terms of section 93(3) of the Constitution, to establish the truth of what happened in the election and the giving of a final and binding decision on the validity or invalidity of the election, is a protection of the right of every Zimbabwean citizen to a free, fair and credible election of a President.”…,.

Section 93(1) of the Constitution limits the locus standi to challenge the validity of the Presidential election to aggrieved candidates who participated in the Presidential election. The limitation of locus standi is not indicative of just the personal interest on the part of an aggrieved candidate who files a Presidential election petition or application under section 93(1) of the Constitution.

In Tsvangirai v Mugabe and Ors CC20-17, the following remarks.., on the meaning of section 93 of the Constitution, are worth quoting …,. The Court said:

“The right of petition or application is conferred on an aggrieved candidate and protected under section 93 of the Constitution as a legal remedy for the protection of the right guaranteed to every citizen under section 67(1) of the Constitution to free, fair and regular elections for any elective public office established in terms of the Constitution or any other law and exercised in accordance with the provisions of the Electoral Law. The office of President is an elective public office established by the Constitution. Every Zimbabwean citizen, regardless of voting status, has a fundamental right to a free, fair and credible Presidential election. In other words, he or she has a right to a valid election of a President held in accordance with the relevant provisions of the law governing the conduct of the election. An aggrieved candidate is a registered voter who shares with all other Zimbabwean citizens the right to a free, fair and credible election of a President. It is the alleged commission by the respondents in the election of corrupt practices and/or irregularities prohibited under the provisions of the Electoral Law which materially affects the validity of the election in violation of the fundamental right of every Zimbabwean citizen to a free, fair and credible election of a President that constitutes the subject-matter of the petition or application lodged with the Court under section 93(1) of the Constitution….,.

The Court is enjoined, in the discharge of its duties under section 93(3) of the Constitution, to hold firmly in its mind, and act in accordance with, the value fundamental to any democratic society, that the basis of authority of a representative Government to govern is free, fair and regular elections.”…,.

THE COURT APPLICATION

The court application was opposed by the first (Emmerson Dambudzo Mnangagwa), the fifth (Noah Manyika), the sixth (Harry Peter Wilson), the seventeenth (Daniel Shumba), the eighteenth (Violet Mariyacha), the twentieth (Elton Mangoma), the twenty-third (Zimbabwe Electoral Commission), the twenty-fourth (the Chairperson of the Zimbabwe Electoral Commission) and the twenty-fifth (the Chief Executive Officer of the Zimbabwe Electoral Commission) respondents….,.

SUMMARY OF THE APPLICANT'S CASE

The issues for determination in this segment of the judgment relate to the following matters –

(a) The case as pleaded and presented;

(b) The locus of the burden of proof;

(c) The standard of proof;

(d) The kind of evidence required for proof; and

(e) The discharge of the burden of proof.

There was evidence of ambivalence in the applicant's mind as to the grounds on which he wanted the Court to determine the question of the validity of the Presidential election. The substance of the relief sought in paragraph 1(i) of the order sought shows that the case the applicant was alleging, and on the proof of which the order would be granted, was the failure by the Zimbabwe Electoral Commission to deliver free, fair and credible harmonised elections - including the Presidential election.

The ground was that the harmonized elections were not conducted in accordance with the law.

The applicant alleged, and would have had to prove, that the Zimbabwe Electoral Commission, through its officers, had committed irregularities, or the Zimbabwe Electoral Commission had failed to act against the commission of electoral malpractices by others where it was under the duty to act. The allegation was that as a result of the commission of irregularities or the omission to act against the commission of electoral malpractices by others the Zimbabwe Electoral Commission failed to deliver free, fair and credible harmonised elections.

The appropriate relief, upon a finding of the facts alleged by the applicant, would have been a declaration of invalidity of the whole election process and the setting aside of the Presidential election result.

Paragraph 1(ii) of the order sought by the applicant reveals a case based on a different allegation. The allegation, on the proof of which relief was sought to be granted by way of paragraph 1(ii) of the order, was that the applicant won the Presidential election.

The allegation was that officers of the Zimbabwe Electoral Commission corruptly manipulated the Presidential election result in such a manner that the first respondent's win was rigged. The allegation was that the officers of the Zimbabwe Electoral Commission awarded the first respondent fictitious votes. The allegation was not that the Zimbabwe Electoral Commission had, by commission of irregularities, failed to deliver a free, fair and credible Presidential election. The allegation was that the electorate voted freely and delivered a win to the applicant.

It followed, logically, that the appropriate relief that would have been granted by the Court, upon proof by the applicant of the allegation that he won the Presidential election, would have been a declaration that the Presidential election result announced by the Zimbabwe Electoral Commission was an undue result. The Court, upon a finding of the due result, as contended for by the applicant, would declare him the winner.

On the basis of the allegation that he won the Presidential election, the applicant's case could not be that the harmonised election was not free and fair. It would be ironic to claim to be the winner of an election which is claimed to be not free and fair in terms of the law of elections.

Whichever case the applicant sought to be put before the Court, it had to be evidence based.

Although counsel for the applicant indicated that the case presented to the Court was not based on the allegation of malpractices before the declaration of the results, it is necessary to refer to the allegation that the Zimbabwe Electoral Commission failed to deliver a free, fair and credible Presidential election.

The alleged violations said to have been committed by the Zimbabwe Electoral Commission and the twenty-fourth respondent (the Chairperson of the Zimbabwe Electoral Commission), directly or as a result of failure to enforce the relevant provisions of the Electoral Act in the conduct of the harmonized elections, are now referred to.

The High Court of Zimbabwe was seized with, and determined, some of the allegations, on the basis of which the ability of the Zimbabwe Electoral Commission to conduct a free, fair and credible harmonized election was impugned. The issues related to the following matters -

(i) The conduct of postal voting;

(ii) The design of the Presidential ballot;

(iii) The release of voters rolls with voters' photographs to the parties; and

(iv) The Zimbabwe Electoral Commission's obligation to facilitate voting by civil servants engaged in election duties on election day.

The High Court held in favour of the Zimbabwe Electoral Commission in respect of the matters raised against it. No appeal was made against these decisions. They remain extant. The Court will address the applicant's contentions, in respect of these issues, to show general lack of seriousness in the allegations made against the respondents.

In the abridged version of the judgment, the Court did not address the totality of the allegations made by the applicant, as listed above, reserving them for the main judgment. In order to deal with them now, the Court will first outline the applicant's case, as pleaded in the founding affidavit, and, thereafter, set out the responses by the respondents. It will then set out the arguments that were made by the applicant, the first respondent, the Zimbabwe Electoral Commission, the twenty-fourth (the Chairperson of the Zimbabwe Electoral Commission) and the twenty-fifth (the Chief Executive Officer of the Zimbabwe Electoral Commission) respondents on the day of the hearing of the application. There will then be an assessment of the evidence to determine the question whether the allegations against the respondents have been proved, and, if so, what impact the conduct had on the Presidential election or result.

The dynamics of the case, as pleaded by the applicant, involved making as many allegations against the respondents as possible without regard to the probabilities. Every unnecessary allegation of irregularity or electoral malpractices made against a respondent in an election petition subtracts cogency from the grounds on which relief is sought.

THE APPLICANT'S CASE IN DETAIL

1. Lack of independence of the Zimbabwe Electoral Commission

The applicant alleged that the conduct of the Zimbabwe Electoral Commission showed that it lacked independence, especially through the conduct of its Chairperson. He alleged that the lack of independence, transparency and accountability of the Commission was meant to and did benefit the first respondent.

2. Failure of the State-owned media to comply with section 61(4) of the Constitution

The applicant alleged that, although section 64(1) of the Constitution requires the State media to be impartial and objective, the Zimbabwe Broadcasting Corporation (“ZBC”), The Herald and The Chronicle were media for propaganda on behalf of the first respondent during the entire duration of the Presidential election campaign. He contended that 60% of the electorate in the rural areas only receive information from the ZBC. The applicant alleged that the Zimbabwe Broadcasting Corporation (ZBC) had a profound effect on the electorate's outlook and information on the first respondent's opponents in the Presidential election. The applicant alleged that the Zimbabwe Electoral Commission failed to bring the State media to book, thereby failing to ensure an impartial and fair coverage of the harmonised elections.

3. Conduct of traditional leaders and rogue security elements

The applicant alleged that he had evidence to show that traditional leaders were involved in the electoral process as election agents on behalf of the first respondent. He contended that there were people who identified themselves as security officers. They went about campaigning on behalf of the first respondent. He alleged that these people were threatening villagers. The allegation was that the Zimbabwe Electoral Commission failed to condemn the conduct of the traditional leaders and the rogue security agents.

4. Failure to abide by general principles affecting the conducting of elections

The applicant said the Electoral Act gives every political party the right to have reasonable access to all material and information for it to participate in an election. He alleged that only the first respondent's political party obtained access to the unique combination of voters' ward details and cellphone numbers of registered voters. Thereafter, the first respondent is said to have sent out messages to members of the electorate, encouraging them to vote for his political party. Cellular network providers denied the allegation that they had given out the cellphone numbers to the first respondent's political party. The applicant concluded that it was the Zimbabwe Electoral Commission that gave the information to the first respondent's political party.

5. The Zimbabwe Electoral Commission's failure to compile a Voters Roll

The applicant stated that the Zimbabwe Electoral Commission has the duty to compile the roll of registered voters in terms of the Constitution and the Electoral Act. According to the applicant, audits that were carried out showed that 11% of voters on the voters roll could not be found. The applicant alleged that the 11% amounts to some 625,000 voters. He said additional audits done by civic organisations found serious discrepancies, including duplicate voters, false ID numbers and false surnames. He alleged that the Commission permitted persons to vote who were not registered voters.

6. Wearing of partisan clothing

The applicant alleged that the twenty-fourth respondent (the Chairperson of the Zimbabwe Electoral Commission) wore the first respondent's campaign regalia in the form of a scarf after her appointment as the Zimbabwe Electoral Commission Chairperson and was photographed wearing the regalia. According to the applicant, the conduct showed that the twenty-fourth respondent was tainted as the umpire in the harmonized elections.

7. Failure by the Zimbabwe Electoral Commission to provide a complete Voters Roll

The applicant stated that the voters roll that he was furnished with did not contain biometric data, such as photographs and fingerprints. According to him, this was a violation of section 20(2)(c) of the Electoral Act by the Commission. Section 20(2)(c) of the Electoral Act states that the voters roll shall specify other information as may be prescribed or as the Zimbabwe Electoral Commission considers appropriate.

8. Voter education

The applicant alleged that the ZANU-PF political party (“ZANU-PF”), of which the first respondent is a member, was allowed to use sample ballot papers to engage in its own voter education. He said the sample ballot papers were widely distributed to ZANU-PF Members of Parliament in breach of the law. According to the applicant, the use of the material provided fertile ground for rigging through ballot swapping and stuffing.

9. Design of the ballot paper

The applicant alleged that the ballot paper was designed in a manner that favoured the first respondent. Section 3(1) of the Electoral Regulations provides for horizontal segments to equate to the number of candidates on the form. He alleged that the Zimbabwe Electoral Commission produced a Presidential election ballot paper that was not equally balanced according to the number of candidates on the vertical columns. This was allegedly done to afford the first respondent a material advantage.

10. Fixing of polling station returns (V11 Forms) on the outside of polling stations

In terms of section 64(1) of the Electoral Act, after counting of ballot papers is conducted, the presiding officer at a polling station shall, without delay, in the presence of such candidates and their election agents as are present, record on the polling station return (the V11 Form) the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the results of the count for each ballot box are shown on the return. The presiding officer is obliged to display the completed polling station return to those present and to afford each candidate, or his or her election agent, the opportunity to subscribe their signatures thereto. He or she must provide each candidate, or his or her election agent, with a copy of the completed polling station return. The presiding officer must affix a copy of the polling station return on the outside of the polling station so that it is visible to the public and ensure that it remains there so that all members of the public may inspect it and record its contents.

The applicant alleged that at 21% of the polling stations no V11 Forms were affixed on the outside as prescribed by law. It was contended that this was done to assist the Zimbabwe Electoral Commission in rigging the Presidential election result in favour of the first respondent.

11. Postal Ballots

The applicant alleged that the postal ballot was not cast in secret as required by the law. According to him, members of the police were summoned by their commanding officers and ordered to vote. He stated that the Zimbabwe Electoral Commission transmitted the ballots to the commanding officers and not to the applicants for postal ballots. A total of 7,500 ballots were said to have been processed in this manner. It was alleged that the effect was to invalidate the entire postal vote.

12. Counting of Presidential ballots

The applicant stated that the collation and verification of the constituency returns was done at the National Command Centre. He alleged that the manner in which the returns were collated and verified was in breach of the law. He contended that his chief election agent was not notified of the date and place of verification and that he was not given an opportunity to record the proceedings. He alleged that the entire process of the collation and verification of the constituency returns, at the National Command Centre, was done under a cloud of secrecy.

13. Threats to voters of injury, damage, harm or loss

The applicant alleged that, throughout the campaign, soldiers and ZANU-PF operatives threatened rural inhabitants with injury or loss of their property or withdrawal of food aid if their communities did not vote for the first respondent. He alleged that the Zimbabwe Electoral Commission took no action against such acts. Relying on these allegations, the applicant said the right to vote freely and voluntarily was not protected.

14. Bribery, provision of seed and fertiliser packs

According to the applicant, the first respondent and ZANU-PF candidates distributed seed and fertiliser packs, allegedly purchased with public funds, to rural communities. He said the intention was to induce the electorate to vote for the first respondent and his political party. The applicant contended that the alleged conduct violated section 136(1)(c) of the Electoral Act which prohibits the making of a gift to any person in order to induce such person to vote for a candidate at an election.

15. Failure by the Commission to deliver a free, fair and credible harmonised election

All in all, the applicant contended that the Zimbabwe Electoral Commission failed to adhere to or follow the procedures prescribed by the law for conducting a free, fair and credible election. He said the alleged failures by the Commission to act against those who committed the malpractices prohibited by the law of elections had the effect of undermining the legitimacy of the entire harmonized elections, including the Presidential election.

16. Stopping of counting of the Presidential election ballots

The applicant alleged that as copies of the V11 Forms (the completed polling station returns) were being affixed on the outside of various polling stations across the country they showed that he was winning the Presidential election. He alleged that the information alarmed the first respondent and the V11 Forms ended up not being completed on the day of the election. He said the exercise of completing the V11 Forms was done on 31 July 2018.

17. Verification of the Presidential election result

The applicant complained about the delay in the announcement of the Presidential election result. He alleged that the process of the verification of constituency returns and adding together the number of the votes received by each Presidential candidate took over two days to complete. He said that the number of votes received by each Presidential candidate was arrived at in the absence of his chief election agent. He alleged that, after the number of votes received by each Presidential candidate had been ascertained through the procedure he said was irregular, the Commissioners and not the Chairperson of the Zimbabwe Electoral Commission announced them.

The applicant, however, did not dispute the fact that it was the Chairperson of the Zimbabwe Electoral Commission who declared the first respondent to be duly elected as President of the Republic of Zimbabwe.

18. Other general allegations made by the applicant

The applicant also alleged that wrong results were announced. He said the figures announced by the Zimbabwe Electoral Commission did not tally with the number of registered voters. The allegation was that the Commission deflated the number of votes he received.

The applicant contended that about 40,000 teachers were not allowed, by the Zimbabwe Electoral Commission, to vote. He alleged that there were irregularities in the manner in which illiterate or physically handicapped voters were assisted. The applicant alleged that the first respondent had 5,396 votes from what he called “ghost polling stations” credited to him. According to him, there were unusual voting patterns which resulted in 352,897 votes being added to the first respondent's number of votes as announced by the Zimbabwe Electoral Commission. He alleged that there were pre-signed V11 Forms which did not have any information on them.

SUBMISSIONS AT THE HEARING

THE APPLICANT

Counsel for the applicant indicated that the applicant's case did not depend on what was alleged to have happened before the events surrounding the announcement of the Presidential election result. The argument by counsel was directed at showing that the number of votes counted by the Zimbabwe Electoral Commission, as having been received by the first respondent, and on the basis of which he was declared to be duly elected as President of the Republic of Zimbabwe, was not accurate.

The contention was that the first respondent was declared the winner of the Presidential election on an undue return.

Counsel for the applicant relied on a report that was compiled by the Zimbabwe Electoral Commission after the addition of the number of votes received by each Presidential candidate and the declaration of the first respondent as the winner of the Presidential election. He argued that the Commission admitted making errors in the presentation of the number of votes it said were received by the first respondent and the applicant.

In analysing the Presidential election result, as announced by the Zimbabwe Electoral Commission, counsel for the applicant aimed at proving that 0.8% of the votes credited to the first respondent had not been won by him. Counsel for the applicant sought to advance the proposition that the first respondent benefitted from fictitious votes on the basis of a number of allegations.

The first allegation was that the Zimbabwe Electoral Commission had admitted, in the report it compiled after the declaration of the first respondent as the winner of the Presidential election, that 4,491 votes had been taken from the applicant and 4,453 votes irregularly counted as having been won by the first respondent. According to him, there was a difference of 8,944 votes.

Counsel for the applicant also informed the Court of the existence of a report by a journalist, on national television, to the effect that about 900 people had voted in Norton yet the same town had about 600 registered voters. Without producing proof of the veracity of the report, he argued that the inconsistency in that regard was sufficient to show that the Presidential election result was undue.

Counsel for the applicant also asked the Court to take note of a television report made on the polling day, to the effect that in Mashonaland Central Province about 300,000 people had voted in a space of one-and-a-half hours. According to him, the report was sufficient to show that the Presidential election result was not correct. He informed the Court of reports of the voter turnout patterns in Masvingo which he alleged were clear evidence of anomalies in the Presidential election result.

According to counsel for the applicant, it was impossible for a voter turnout of 6% at 6am to escalate to 84% at the close of the polling station. Counsel for the applicant urged the Court to disregard a 24% voter turnout in an hour in Masvingo.

Counsel for the applicant also alleged that about 40,000 teachers who were involved in the election process were not allowed to vote by the Zimbabwe Electoral Commission. According to him, the Commission had an obligation to ensure that all the 40,000 teachers cast their vote in terms of a High Court order which directed that all those who were involved in the voting process be allowed to vote. In his view, the figure of 40,000 teachers who did not cast their votes potentially had an effect of reducing the first respondent's win.

Questioned on whether the failure to vote by the 40,000 teachers automatically meant that those votes would translate to the applicant's votes, counsel for the applicant submitted that the 40,000 votes were evidence that the Presidential election result could have been materially affected.

Counsel for the applicant made reference to the involvement of traditional leaders who allegedly threatened some members of the electorate to vote for the first respondent. He alleged duress as an element that questioned the validity of the first respondent's win. In the same breath, it was alleged that there were instances where there had been undue influence and bribery of the electorate by the distribution of “freebies” to them, which resulted in an unfair advantage to the first respondent and worked to the disadvantage of the applicant, thus impacting on the Presidential election result.

Counsel for the applicant referred the Court to its decision in Tsvangirai v Mugabe and Ors CC20-17 in support of the argument that the test for setting aside a Presidential election result is not that the result was materially affected but that the election process was materially flawed. He argued that the Zimbabwe Electoral Commission had not recanted the flaws in the election process. Its failure to do so was sufficient to have the Presidential election result set aside.

THE FAILURE BY THE APPLICANT TO REQUEST THE RE-OPENING OF THE BALLOT BOXES AND THE SEALED PACKETS

The Court questioned counsel for the applicant on why the applicant had sought to prove the alleged invalidity of the Presidential election result using secondary evidence when primary evidence, in the form of used ballot papers and duly completed V11 Forms, was available. The Court referred counsel for the applicant to the provisions of section 67A of the Electoral Act, which allows an aggrieved candidate to request the Zimbabwe Electoral Commission to conduct a recount of votes in one or more of the polling stations when he or she believes that there was a miscount of votes which would have affected the result of the Presidential election.

The Court further asked counsel for the applicant to explain why the applicant had not sought an order from the Electoral Court, in terms of section 70(4) of the Electoral Act, to have the closed and sealed ballot boxes containing used ballot papers, the separate sealed packets containing the un-used and spoilt ballot papers and the counterfoils of the unused ballot papers, the separate and sealed packets containing the counterfoils of the used ballot papers, the separate and sealed packets containing all the postal ballot papers cast in the harmonised elections, and a separate sealed packet containing the register of assisted voters, re-opened. This is particularly the case in the light of the specific provision that the packets referred to, containing primary evidence of matters relating to the conduct of the Presidential election by the Zimbabwe Electoral Commission, must be opened for the purpose of a petition questioning an election or return upon an order by the Electoral Court.

Counsel for the applicant's argument was that the primary evidence in the sealed ballot boxes and sealed packets could not be used because the containers were “poisoned chalices”. According to him, the procedure under section 67A of the Electoral Act did not offer an effective remedy because there had allegedly been doctoring of the ballot papers and the V11 Forms. He based his argument on allegations that some V11 Forms had been tampered with and that some had not been signed and stamped after the ballot papers had been counted.

Counsel for the applicant could not explain how it could be argued that the Zimbabwe Electoral Commission had tampered with real evidence of the procedure of conducting the election contained in the closed and sealed ballot boxes and the sealed packets when the procedure of closing and sealing the ballot boxes and the sealing of the packets is taken into account. He could not explain how the Commission could be accused of manipulating the contents of the closed and sealed ballot boxes and the sealed packets considering the procedure of conducting the election prescribed in sections 56(2), 56(3), 56(4), 57, 59, 61, 63 and 64 of the Electoral Act.

Counsel for the applicant was also questioned on what percentage of the Presidential election result the V11 Forms placed before the Court would constitute. Counsel was unable to answer the question.

He said that the seven days within which the court application had to be lodged, in terms of section 93(1) of the Constitution, did not give the applicant enough time to fully collect relevant evidence that related to the validity of the Presidential election result that was declared.

THE FIRST RESPONDENT'S ARGUMENT (EMMERSON DAMBUDZO MNANGAGWA)

Counsel for the first respondent submitted that had the applicant invoked the remedy prescribed by section 67A of the Electoral Act he would have been able to establish, by real and reliable evidence, the inconsistencies, if any, between the actual votes cast in favour of both the applicant and the first respondent and the number of votes announced by the Zimbabwe Electoral Commission as having been received by each candidate. The contention by counsel for the first respondent was that what carries the day in an application of this nature is the adduction of credible evidence to prove the allegations made.

Counsel for the first respondent argued that the applicant bore the onus of proving the criminal allegations that he levelled against the first respondent. In his view, bald allegations were not enough to impugn the validity of the Presidential election result. He referred to the Court's decision in Tsvangirai v Mugabe and Ors CC20-17 as authority for the proposition that sufficient and clear evidence had to be placed before the Court in order to properly prove the applicant's case. He argued that there was a presumption that the Zimbabwe Electoral Commission had acted in terms of the law when it declared the first respondent to be duly elected as President of the Republic of Zimbabwe. The presumption had to be rebutted by clear and credible evidence which, so his argument went, the applicant had failed to place before the Court….,.

Counsel for the first respondent referred the Court to the judgment of the Supreme Court of the United States of America in Bush v Gore 531 U.S. 98 (2000) as authority for the proposition that, unless it is shown that the alleged irregularities had the effect of changing the will of the people, the Court should not declare the Presidential election result undue. He also relied on that decision to support the submission that the change in the Presidential election result figures would not invalidate the declaration of the first respondent to be duly elected as the President of the Republic of Zimbabwe.

The contention was that, notwithstanding the revision of the figures reflecting the results, the number of votes received by the first respondent remained more than half the number of votes cast in the Presidential election.

Counsel for the first respondent submitted that the applicant had failed to prove his case. He submitted that the applicant failed to present his case in a manner that would have enabled the Court to make an informed decision in his favour. In light of the criminal allegations that were made against the first respondent, it was incumbent upon the applicant to prove the allegations beyond a reasonable doubt.\

Counsel for the first respondent further submitted that the applicant's case had been premised on bare and bald allegations, which were insufficient to set aside the Presidential election result.

THE TWENTY-THIRD, THE TWENTY-FOURTH AND THE TWENTY-FIFTH RESPONDENTS' ARGUMENT (ZIMBABWE ELECTORAL COMMISSION, CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF EXECUTIVE OFFICER, ZIMBABWE ELECTORAL COMMISSION)

Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents submitted that the applicant's case ought to have been pleaded with sufficient clarity based on primary evidence. He argued that the applicant could not rely on responses from the Zimbabwe Electoral Commission, the Chairperson of the Zimbabwe Electoral Commission and the Chief Executive Officer of the Zimbabwe Electoral Commission to argue his case on the date of the hearing. He stressed the principle that an application stands or falls on its founding affidavit.

Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents also took issue with the fact that the applicant's case, as argued on the day of the hearing, was based on the Zimbabwe Electoral Commission's report which was placed in a set of documents that had not been served on all the parties within the stipulated time-frame.

Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents argued that the applicant had mis-characterized the Zimbabwe Electoral Commission's report as being evidence of inconsistencies in the Presidential election result that declared the first respondent as the winner of the 2018 Presidential election. Contrary to the applicant's submissions, Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents submitted that the errors in the figures were then shown to amount to an insignificant 0.1% error margin, which was insufficient to justify a decision to set aside the Presidential election result, as prayed for by the applicant.

According to counsel for the twenty-third, twenty-fourth and twenty-fifth respondents, the allegation that 40,000 teachers were allegedly not allowed to vote by the Zimbabwe Electoral Commission did not in any way add to the irregular returns that were indicated in its report. He further submitted that the affidavits that were filed by the applicant to substantiate the figure of 40,000 did not have any empirical basis. The affidavits did not state whether the 40,000 teachers were registered to vote or not. If they were registered to vote, it was not shown how many of those teachers' votes would have been for the applicant. Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents argued that the affidavits used by the applicant did not in any way prove that the Zimbabwe Electoral Commission had formed a systematic policy to disenfranchise the teachers. He argued that, if anything, the Commission did everything it could to facilitate voting by the civil servants in question.

Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents further submitted that the applicant's allegations relating to what was said to be 700,000 votes un-accounted for resulted from an analysis based on a wrong voter turnout. Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents submitted that, contrary to the applicant's allegations, the 700,000 votes were fully accounted for by the Zimbabwe Electoral Commission. He also submitted that there was no proof of over-voting. The bald allegations of over-voting were not substantiated. He further submitted that the applicant failed to meet the standard of proof of the allegation of rigging, especially having regard to the fact that the allegation was not in any way linked to the actual ballot papers.

Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents submitted that if the applicant was genuinely unhappy with the Presidential election result he ought to have requested a recount of the votes in terms of section 67A of the Electoral Act. He could have applied to the Electoral Court for an order directing the unsealing and re-opening of the closed and sealed ballot boxes and the sealed packets to have access to primary evidence for the purpose of the application.

Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents submitted that the applicant did not place sufficient evidence before the Court to challenge the validity of the Presidential election result announced by the twenty-fourth respondent in terms of the law.

ISSUE ARISING FOR DETERMINATION

The only issue arising for determination was whether the applicant produced sufficient and clear evidence to prove his case.

Where the grounds for challenging the validity of an election result are allegations of irregularities committed by officers of the body charged with the responsibility of conducting the election or electoral malpractices committed by others who took part in the election process, the duty of a court is to satisfy itself, by sufficient and clear evidence produced by the party bearing the onus of proof of the allegation, that the alleged acts occurred.

If a court finds, as a matter of fact, that the irregularities or electoral malpractices occurred, it must go further. It must make a finding on the question whether the irregularities or electoral malpractices were of such a nature and effect that they substantially undermined the ability of the electoral body to deliver a free, fair and credible election.

Section 177 of the Electoral Act provides that, where the ground for seeking invalidation of an election is commission of a mistake or non-compliance with the provisions of the Electoral Act, it must appear to the court, after proof of the mistake or non-compliance, that as a result thereof the election was not conducted in accordance with the principles laid down in the Electoral Act and that such mistake or non-compliance did affect the result of the election.

It must follow that in the discharge of its duty, and in the interests of fairness and justice, a court must insist upon the production, by the party alleging commission of irregularities against the electoral body or electoral malpractices against any other participant, of primary evidence of proof of the allegations made. There has to be a reasonable and acceptable explanation for resorting to the use of secondary evidence when primary evidence is available and accessible.

A court must be conscious of the detailed requirements of the provisions of the Electoral Law allegedly breached, because compliance with the requirements is the guarantee of a free, fair and credible election. The court must be in a position to hold not only the officers of the electoral body to account to the law of elections. It must be able to hold the challenger of the validity of the election or election result to account to the requirements of the law of elections as well. The challenger must show that he or she or his or her chief election agent or election agents acted in accordance with the standard of behaviour prescribed by the relevant provisions of the law of elections.

Elections are the foundation of a system of democratic government. The principles forming the basis of representative democracy are given effect to by the provisions of the law and the conduct of elections. They demand that those participating in the election must, at all times, before, during and after the election, act in good faith.

The reason why a court hearing and determining an application challenging the validity of an election result must adhere to the principles of cogency of proof of the allegations levelled against the respondent is that it is under a duty of impartiality. A genuine challenge to the validity of an election result must comply with well-known legal standards.

Before the reasons for the resolution of the issue for determination are given, it is important to set out the legal requirements governing the conduct of an election. Reference is made, particularly, to the voting process; vote counting at polling stations; verification of constituency returns; adding together of the number of votes received by each Presidential candidate; and the declaration of the winner to be duly elected as President of the Republic of Zimbabwe. The exercise will provide the basis for a better appreciation of the fact that the Court dismissed the application for lack of sufficient and clear evidence of the allegations made against the respondents.

THE VOTING PROCESS

Section 157(1) of the Constitution provides that an Act of Parliament must provide for the conduct of elections to which the Constitution applies. The Electoral Act [Chapter 2:13] is the Act enacted by Parliament to provide for the conduct of the harmonised elections. It is the Act that sets out how the electorate exercises the right to vote. The voting process becomes a juristic act, the conduct of which is measured against the provisions of the Act which give effect to the Constitution.

The Electoral Act provides for remedies to be adopted in the event of a candidate being aggrieved by the manner the election has been conducted affecting the validity of the electoral process or the results. The appropriate remedies are set out in the Electoral Act for purposes of effectively guaranteeing the right to free, fair and credible elections.

The right to free, fair and credible elections for any public office established in terms of the Constitution or any other law is a fundamental right guaranteed to every Zimbabwean citizen.

The connection between elections and the fundamental human right of everyone to take part in the Government of his or her country, directly or through freely chosen representatives, underscores the obligation on the Court to ensure that the elections are conducted in accordance with the principles that guarantee free, fair and credible elections.

Sections 54 to 70 of the Electoral Act contain measures that give effect to the principles that govern the conduct of elections in Zimbabwe. In terms of section 155 of the Constitution, elections must be peaceful, free and fair. They must be conducted by secret ballot and based on universal adult suffrage and equality of votes. As a matter of principle, the elections must also be free from violence and other electoral malpractices. Electoral malpractices include corrupt practices, illegal practices, intimidatory practices, and other offences under the Electoral Act.

Transparency of the election process lies at the heart of its credibility. Section 54 of the Electoral Act requires that a presiding officer must ensure, not more than thirty minutes before the commencement of the poll at any polling station on the day of the vote, that the ballot box is empty.

The check must be carried out in full view of other election officers present for the performance of their official duties, the candidates, the election agents and accredited observers. The ballot box itself is required to be translucent, a measure that is aimed at ensuring transparency in the voting process. The presiding officer is nonetheless required to show the interior of the ballot box to the persons present before sealing it, leaving open the aperture for the purpose of dropping the marked and folded ballot papers into the ballot box.

The voting process starts with a prospective voter entering a polling station and approaching the presiding officer to apply for the ballot paper. Section 56(2) of the Electoral Act gives the presiding officer a discretionary power to put to an applicant for a ballot paper such questions as he or she considers necessary to ascertain whether or not the applicant is registered as a voter on the voters roll for the ward in which the polling station is situated.

The presiding officer is obliged to require an applicant for a ballot paper to produce his or her voter's registration certificate or proof of identity. If the applicant is registered as a voter on the voters roll for the ward, and there is no indication that he or she has previously received a ballot paper or postal ballot paper for the election, the presiding officer is required to mark or otherwise deal with the certificate or proof of identify in a manner prescribed by the Chief Elections Officer.

After that, the presiding officer must hand the applicant a ballot paper for the Presidential Election, the Parliamentary Election and the Local Authority Election.

Before handing an applicant a ballot paper, a presiding officer is obliged to require the applicant to submit to an examination specified by the Chief Elections Officer to ascertain whether or not he or she has previously received a ballot paper at that election. If the applicant refuses to submit to such examination or if such examination shows that the applicant has previously received such a ballot paper, the presiding officer shall not hand him or her the ballot paper.

After handing an applicant a ballot paper, the presiding officer is required to mark him or her in the manner specified by the Commission. The applicant would usually be required to dip his or her index finger in indelible ink. Before the ballot paper is handed to the applicant, the presiding officer is required to mark the ballot paper with the official mark.

The interaction between the applicant for a ballot paper and the presiding officer, from the time he or she enters the polling station, is under the observation of the candidate if he or she is present, the election agent, accredited observers, police officers and other electoral officers present for the performance of their official duties in the polling station.

When the person claiming the vote has received the ballot paper, he or she is required to take the ballot paper to the compartment provided for the purpose (“the booth”). The booth is designed to ensure that the voter can vote in secret. Once alone in the booth, the voter is free to signify the candidate for whom he or she votes by secretly placing a cross in the rectangle opposite the name of the candidate on the ballot paper. After voting, the voter is required to fold the ballot paper so that the official mark is visible but the names of the candidates and the cross made by him or her are not visible. He or she is required to drop the ballot paper in the translucent box placed in front of the presiding officer.

Section 59 of the Electoral Act recognises the needs of registered voters who may be unable to cast votes on their own. These include illiterate persons or physically handicapped voters.

A presiding officer may allow these persons to be assisted in exercising their right to vote through another person of their choice. In terms of section 59(2)(a) and (b), a person permitted to assist a voter need not be a registered voter, but shall not be a minor, electoral officer, accredited observer, chief election agent, election agent or a candidate in the election.

The person providing assistance to a voter is required to identify himself or herself to the presiding officer by producing proof of identity. In the event that the voter concerned does not have a person to assist him or her, the presiding officer shall assist the voter to exercise his or her right to vote in the presence of two other electoral officers or employees of the Zimbabwe Electoral Commission and a police officer on duty.

The person assisting another to vote shall there and then mark the ballot paper in accordance with the voter's wishes and place the ballot paper in the ballot box. In the event that the wishes of the voter as to the manner in which the vote is to be marked on the ballot paper are not sufficiently clear to enable the vote to be so marked, the presiding officer may cause such questions to be put to the voter as, in his or her opinion, are necessary to clarify the voter's intentions.

The presiding officer must keep a special register in which shall be recorded the name of every person whom the presiding officer permits to assist a voter, relevant particulars of the proof of identity produced by that person, and the name of the voter assisted by that person. The presiding officer shall also cause the name of every voter who has been assisted, and the reason why that voter has been assisted, to be entered on a list.

It is important to emphasise the fact that all that the presiding officer is required to do in terms of the procedure of voting by illiterate or physically handicapped members of society is done in the full view and observation of the candidates present, the election agents, accredited observers, and other electoral officers present for the performance of their official duties.

Not only does the system ensure that the voting process is transparent and fair; the presence of the persons who have an interest in the election and its outcome ensures that the electoral officers adhere to the highest standards of accountability for what they do.

It is imperative that the vote be cast in a clear manner. This is to avoid the rejection of ballot papers that are improperly marked with the voter's choice in terms of section 63(3) of the Electoral Act [Chapter 2:13]. In terms of the subsection, a presiding officer shall reject and not count any ballot paper which does not bear his or her official mark, which is not marked by the voter, or which does not indicate with certainty the candidate for whom the voter intended to vote.

COUNTING, VERIFICATION AND COLLATION OF THE VOTES AND DECLARATION OF THE ELECTION RESULTS

Immediately after the close of the poll, the presiding officer shall, in the presence of such candidates and their chief election agents or election agents as are present, close and seal the aperture in the ballot box. He or she shall thereafter make up into separate packets sealed with his or her own seal and with the seals of those candidates and election agents, if any, who desire to affix their seals -

(i) The unused and spoilt ballot papers and counterfoils of the un-used ballot papers placed together;

(ii) The counterfoils of the used ballot papers, including the counterfoils of the spoilt ballot papers;

(iii) The register of assisted voters.

As soon as the last packet is sealed, the presiding officer shall open and unseal the ballot boxes and begin to count the votes. The ballot papers in each ballot box shall be counted separately.

At the time of counting the votes, the presiding officer shall also open each sealed packet containing the un-used and spoilt ballot papers and the register of assisted voters.

The count is done in the presence of the following persons -

(i) The presiding officer and such polling officers as he or she may consider necessary and not more than the prescribed number of monitors and observers;

(ii) The candidates, and every chief election agent and election agent of each candidate, or, in certain circumstances, of each political party who, at the time of the commencement of the counting, is present within the polling station or in the immediate vicinity of the polling station. A candidate or his or her chief election agent or election agent need not be present at the counting of the votes at an election for which that candidate was not nominated; and

(iii) Any roving political party election agent who, at the time of the commencement of the counting, is present within the polling station or in the immediate vicinity of the polling station.

As indicated earlier, a presiding officer is entitled to reject as invalid a ballot paper for one reason or another. Where he or she does so, section 63(7) of the Electoral Act requires that he or she shall endorse the word “Rejected” on the ballot paper. He or she shall add to the endorsement the words “Rejection Objected To” if an objection to his or her decision is made by a candidate or his or her chief election agent or election agent. All ballot papers rejected as invalid shall be placed together in an envelope within the packet containing the rejected ballot papers.

If the presiding officer accepts as valid a ballot paper, he or she shall endorse the words “Acceptance Objected To” on the ballot paper if an objection to his or her decision is made by a candidate or his or her chief election agent or election agent. All such endorsed ballot papers shall be placed together in an envelope within the packet containing the accepted ballot papers.

All this is done during the counting exercise.

Section 64 of the Electoral Act [Chapter 2:13] clearly articulates the procedure after the counting of votes at a polling station. The section provides:

“(1) After the counting is completed the presiding officer shall, without delay, in the presence of such candidates and their election agents as are present -

(a) Close and seal the aperture in the ballot box; and

(b) Make up into separate packets sealed with his or her own seal and with the seals of those candidates and election agents, if any, who desire to affix their seals -

(i) The un-used and spoilt ballot papers and counterfoils of the unused ballot papers placed together;

(ii) The counterfoils of the used ballot papers, including the counterfoils of the spoilt ballot papers;

(iii) The register of assisted voters; and

(c) Record on the polling station return the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the results of the count for each ballot box are shown on the return; and

(d) Display the completed polling-station return to those present and afford each candidate or his or her election agent the opportunity to subscribe their signatures thereto; and

(d1) Provide each candidate or his or her election agent with a copy of the completed polling station return; and

(e) Affix a copy of the polling station return on the outside of the polling station so that it is visible to the public and shall ensure that it remains there so that all members of the public who wish to do so may inspect it and record its contents.

(2) Immediately after affixing a polling station return on the outside of the polling station in terms of subsection (1)(e), the presiding officer shall personally transmit to the ward elections officer for the ward in which the polling station is situated -

(a) The ballot box and packets referred to in subsection (1)(a) and (b), accompanied by a statement made by the presiding officer showing the number of ballot papers entrusted to him or her and accounting for them under the heads of used ballot papers, excluding spoilt ballot papers, unused ballot papers and spoilt ballot papers; and

(b) The polling-station return certified by himself or herself to be correct:

Provided that if, by reason of death, injury or illness, the presiding officer is unable personally to transmit the ballot box, packets, statement and polling station return under this subsection, a polling officer who was on duty at the polling station shall personally transmit these, and, in that event, any statement or certification required to be made by the presiding officer for the purposes of this section may be made by the polling officer concerned.”

After receiving the polling station returns, the Ward elections officer is required to verify and collate the polling station returns at the Ward Centre and count the postal votes. Verification and collation of the returns is done upon giving reasonable notice in writing to each candidate or his or her chief election agent, each political party whose party-list candidates are contesting the election in the ward, and such observers as can readily be contacted, of the time that the process will be done. The Ward elections officer displays each polling station return to those present and thereafter verifies each polling station return by ensuring that it is duly certified by the presiding officer of the polling station concerned. The ward elections officer may, upon request, allow any candidate, election agent or accredited observer to make notes of the contents of any polling station return.

Section 65(3) of the Electoral Act provides that when the ward elections officer has displayed and verified the polling station returns, he or she shall add together the number of votes received by each candidate, as shown in each polling station return, and record the result on a ward return.

Having recorded the results of the polling station returns, the ward elections officer, in the presence of such candidates, election agents and observers as are present, shall verify the postal ballots if they have not already been verified, count the postal votes and record, separately, on the ward return the number of such votes received by each candidate. He or she must enter on the ward return the total number of votes received by each candidate, including postal votes, and then close and seal the aperture in the postal ballot box.

The ward elections officer is then enjoined to provide a copy of the completed ward return to every candidate, election agent and observer who requests one. He or she must also ensure that a copy of the ward return is displayed prominently outside the Ward Centre so that all members of the public who wish to do so may inspect it and record its contents.

Immediately after causing a copy of the ward return to be displayed outside the Ward Centre, the ward elections officer must cause the return, certified by himself or herself to be correct, to be transmitted to the Constituency Centre for the constituency in which the ward is situated.

Any reference to a constituency centre or a constituency elections officer shall be construed, in respect of the Presidential election, as reference to a Presidential Constituency Centre or a Presidential Constituency elections officer.

In relation to the Presidential election, the number of votes received by each candidate, as shown in each polling station return, is added together and the resultant figure added to the number of postal votes received by each candidate. The constituency elections officer shall forthwith record on the constituency return the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the results of the count for each polling station are shown on the return. He or she is required to display the completed constituency return to those present and afford each candidate or his or her election agent the opportunity to subscribe their signatures thereto. He or she must then transmit to the Chief Elections Officer, by hand, through a messenger, the constituency return or a copy thereof, certified by the constituency elections officer to be correct.

Immediately after arranging for the constituency return to be transmitted to the Chief Elections Officer, the constituency elections officer is required to affix a copy of the constituency return on the outside of the Constituency Centre so that it is visible to the public.

At the time and place notified for the verification of the constituency returns, and in the presence of such candidates, their chief election agents and such accredited observers as are present, the Chief Elections Officer shall display each constituency return to those present. He or she shall, upon request, allow a candidate or the chief election agent of a candidate to make notes of the contents of each constituency return.

When the Chief Elections Officer has completed the verification of the constituency returns, he or she shall, in the presence of the candidates or their chief election agents and such accredited observers as are present, add together the number of votes received by each candidate as shown in each constituency return.

After the number of votes received by each candidate, as shown in each constituency return, has been added together, the Chairperson of the Zimbabwe Electoral Commission or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson shall, where there are two or more candidates, forthwith declare the candidate who has received more than half the number of votes cast to be duly elected as President of the Republic of Zimbabwe with effect from the date of such declaration.

A declaration of a candidate who has received more than half the number of votes cast to be duly elected as President of the Republic of Zimbabwe shall be made not later than five days after the polling day or the last polling day, as the case may be, in the Presidential election concerned. Where a recount has been ordered in terms of section 67A of the Electoral Act, the declaration must be made not later than five days after completion of the recount. The Electoral Court, on application by the Zimbabwe Electoral Commission, for good cause, shall extend the ten-day period.

A declaration of the candidate who received more than half the number of votes cast, where there are more than two candidates, to be duly elected as President of the Republic of Zimbabwe is final. The finality of the declaration is subject to reversal on application to the Constitutional Court by an order that such declaration be set aside or that the proceedings relating to the Presidential election are void.

Section 67A of the Electoral Act makes provision for the re-counting of votes in one or more of the polling stations in a constituency. Any political party or candidate that contested the election in a ward or constituency may request the Zimbabwe Electoral Commission, in writing, to conduct a re-count of votes. The request must state specifically the number of votes believed to have been mis-counted. If possible, the request should show how the miscount may have occurred. It must state how the result of the election has been affected by the alleged mis-count. The Commission is required to immediately notify all the other political parties and candidates that contested the election of the nature of the request and of the date and time on which it was received by the Commission.

If the Zimbabwe Electoral Commission considers that there are reasonable grounds for believing that the alleged miscount of votes occurred and that, if it did occur, it would have affected the result of the election, it shall order a recount of votes in the polling station or polling stations concerned.

It is important to note that the Zimbabwe Electoral Commission may, on its own initiative, order a recount of votes in any polling stations if it considers that there are reasonable grounds for believing that the votes were miscounted, and that, if they were, the miscount would have affected the result of the election.

Where the Commission orders a re-count of votes, it shall specify the polling station or polling stations whose votes are to be recounted, and, where appropriate, the votes that are to be recounted. The Zimbabwe Electoral Commission must also specify the date on which, and the place and time at which, the recount is to take place. The procedure to be adopted for the recount must be specified.

The Zimbabwe Electoral Commission is required to take all necessary steps to inform accredited observers and all political parties and candidates that contested the election of its decision and of the date, time and place of the recount. Accredited observers and representatives of candidates and political parties that contested the election are entitled to be present at any recount ordered by the Commission.

The Commission is required to ensure that any recount of votes is completed within five days after the announcement of the last result in the Presidential election and that the result of the re-count is announced within twenty-four hours of its completion. As indicated, under section 110(3)(4)(ii) of the Electoral Act, where a recount has been ordered in terms of section 67A of the Electoral Act, a declaration of a candidate who has received more than half the number of votes cast to be duly elected as President of the Republic of Zimbabwe shall be made not later than five days after the completion of the recount.

Section 70 of the Electoral Act provides for the custody of ballot papers and other papers.

Upon receiving such material, the constituency elections officer is not allowed to open any closed and sealed ballot box or sealed packets prepared by a presiding officer in terms of section 64(1)(a) and (b) of the Electoral Act. He or she is not allowed to open any sealed packet containing all the postal ballot papers cast in the election. The constituency elections officer may not open all un-opened ballot paper envelopes which have been endorsed “vote rejected”, and all unopened ballot paper envelopes which have been endorsed “vote rejected” but whose rejection has been objected to, while such ballot boxes and packets remain in his or her custody.

All the closed and sealed ballot boxes and packets referred to above must be transmitted to the places designated by the Chief Elections Officer by the constituency elections officer soon after he or she has received them into his or her custody. He or she shall also endorse on each packet a description of its contents and the date of the election to which it relates.

Where an election petition or application is not lodged in relation to the ward or constituency concerned, the Chief Elections Officer shall cause to be destroyed all the documents relating to the ward or constituency not earlier than the fourteenth day after the end of the election period. If an election petition is lodged in relation to any constituency within fourteen days after the end of the election period to which the election relates, he or she must retain, for six months, all the materials relating to that ward or constituency and then, unless otherwise directed by an order of the Electoral Court, shall cause them to be destroyed.

In terms of section 70(4) of the Electoral Act, all sealed ballot boxes and sealed packets cannot be opened except in terms of an order of the Electoral Court. The order may be granted when the Electoral Court is satisfied that the inspection or production of the contents of a sealed ballot box or a sealed packet is required for the purpose of a petition or application questioning an election or return.

Section 70(3)(a) of the Electoral Act ensures that the evidence which is sealed and safely kept in terms of the Electoral Act is available for the purposes of conducting a recount of the election votes forty-eight hours after the declaration of the election result in terms of section 67A(1) of the Electoral Act. Section 70(4) of the Electoral Act, however, requires that an application be made to the Electoral Court for an order to have the closed and sealed ballot boxes opened. The Electoral Court may also order that the separately sealed packets that contain the unused and spoilt ballot papers and counterfoils of the unused ballot papers, the counterfoils of the used ballot papers, including the counterfoils of the spoilt ballot papers, and the register of assisted voters, be opened for purposes of a recount.

WHETHER THE APPLICANT PRODUCED SATISFACTORY EVIDENCE TO PROVE HIS CASE

THE BURDEN OF PROOF IN ELECTION PETITIONS

In order to determine the issue before the Court, it is necessary to first determine who, between the applicant and the respondents, bore the burden of proving the allegations that were made by the applicant in this matter.

According to the applicant, the Zimbabwe Electoral Commission bore the burden to disprove the allegations made by him. He argued that it was the Commission which came up with the disputed number of votes cast for the first respondent after it counted the votes.

On the other hand, the respondents argued that the applicant bore the onus of proving his case beyond a reasonable doubt. The reason given for the standard of proof was that the allegations that the applicant levelled against the first respondent were mainly criminal in nature.

The declaration of the result of a Presidential election, in terms of section 110(3)(f)(ii) of the Electoral Act [Chapter 2:13] gives rise to a presumption of validity of the election result. An election is presumed to have been regularly conducted. The burden of proof of the allegations on which the relief sought was based lay with the applicant. It is standard procedure that the one who alleges a fact on the basis of which his or her cause of action depends bears the onus of proving that fact.

It was for the applicant to prove, to the satisfaction of the Court, that the irregularities he alleged were committed by the Zimbabwe Electoral Commission and its officers in the conduct of the election were, as a matter of fact, committed. It was for the applicant to produce sufficient and clear evidence to establish the grounds of the application to entitle him to the granting of the relief sought.

It would not have been enough, for the purposes of the discharge of the onus on the applicant, to prove the commission of the alleged irregularities by the Zimbabwe Electoral Commission. He had to show that the irregularities were of such a nature and effect that they either substantially undermined the electoral process, thereby disabling the Zimbabwe Electoral Commission from delivering a free, fair and credible Presidential election, or materially affected the result.

In Abubakar v Yar'Adua [2009] All FWLR (Pt. 457) 1 S.C, the Supreme Court of Nigeria held that the burden is on the petitioner to prove non-compliance with electoral law, and to show that the non compliance affected the results of the election.

In Buhari v Obasanjo (2005) CLR 7 (k) (SC) the Supreme Court of Nigeria decided the question of who bears the burden of proof in election petitions. It said:

“He who asserts is required to prove such fact by adducing credible evidence. If the party fails to do so its case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact it is said to have discharged the burden of proof that rests on it. The burden is then said to have shifted to the party's adversary to prove that the fact established by the evidence adduced could not, on the preponderance of the evidence, result in the Court giving judgment in favour of the party.”

The same position was adopted by the Supreme Court of Kenya in Raila Odinga and Five Ors v Independent Electoral and Boundaries Commission and Three Ors (Petition 5,3 and 4 of 2013) [2013] eKLR where the court explained as follows at paragraphs [195] and [196]:

“[195] There is, apparently, a common thread in the foregoing comparative jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the Court to determine whether a firm and unanswered case has been made.

[196] We find merit in such a judicial approach, as is well exemplified in the several cases from Nigeria. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority's departures from the prescriptions of the law.”

In Amama Mbabazi v Museveni and Ors (Presidential Election Petition No.01 of 2016) [2016] UGSC 3 the Supreme Court of Uganda said…,:

“An electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner to place credible evidence before the court which will satisfy the court that the allegations made by the petitioner are true. The burden is on the petitioner to prove…, non-compliance with election law but also that the noncompliance affected the result of the election in a substantial manner. Once credible evidence is brought before the court, the burden shifts to the respondent and it becomes the respondent's responsibility to show either that there was no failure to comply with the law or if there was any non compliance, whether that non-compliance was so substantial as to result in the nullification of the election.”

The same position was later adopted in Apolot v Amongin (Election Petition Appeal No.0060 of 2016) [2018] UGCA 18 where, speaking generally on the evidence required in election petitions, the Ugandan Court of Appeal held…,:

“It is now trite law in election petitions that the petitioner must adduce cogent evidence to prove his or her case to the satisfaction of the Court. In Masiko Winifred Komuhangi v Babihuga J. Winnie Election Petition Appeal No.9 of 2002, JUSTICE MUKASAKIKONYOGO DCJ, (as she then was) held in her lead judgment that:

'As I have already stated above, the decision of Court should be based on the cogency of evidence adduced by the party who seeks judgment in his or her favour. It must be that kind of evidence that is free from contradictions, truthful so as to convince a reasonable tribunal to give judgment in a party's favour.'”…,.

The above authorities present a clear trend that in an election petition it is the petitioner or the applicant who bears the onus of proving his or her case first. It is the petitioner or the applicant who seeks to have the election result annulled.

It was incorrect for the applicant to suggest that since the Zimbabwe Electoral Commission came up with the figures that were announced as the Presidential election result, the Commission bore the onus of proving that the figures were indeed correct. That position is unsustainable, most fundamentally in the light of the presumption in favour of the validity of the Presidential election.

THE STANDARD OF PROOF IN ELECTION PETITIONS

The general rule is that an election is not declared invalid by reason of any act or omission by a returning officer or any other person in breach of his or her official duty in connection with the election. It, however, has to appear to a court that the election was conducted in accordance with the law governing elections and that the act or omission did not affect the result.

The exception to the general rule is that a 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, a court must be satisfied that the breach has affected the result 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 compliance with the law.

Additionally, an election result which has been obtained through fraud would necessarily be invalidated.

The Supreme Court has had occasion to set out the relevant principles in Moyo and Ors v Zvoma N.O. and Anor 2011 (1) ZLR 345 (S). It was held…, as follows:

“The general rule is that a declaration of nullity must be confined to the conduct in respect of a particular vote or class of votes, the invalidity of which has been established, unless the non-observance of the requirements of the law governing the specific duty is of a character which is contrary to the principle of an election by a secret ballot and is so great that it might have permeated the process and affected the result of the election: Phillips v Goff (1886) 17 QB 805. There are numerous cases in which courts have struck off the invalid votes and declared conduct in respect of them void without affecting the election.”…,.

The essence of the principle that a Presidential election result will only be set aside when the irregularity is so great that it goes to the heart of the authenticity of the result was set out in the dissenting judgment at 386A-C. It was said:

“The purpose of voting is not only the differentiation of the electorate and the expression of the will of the individual voters but also the ability to accept such decisions based on the will of the majority. In my view, the principle of majority rule, on the basis of which results of democratic elections are determined, requires that courts should refrain from interfering with the will of the majority of voters expressed in accordance with the requirements of the law, on the ground that the official entrusted with the responsibility of conducting the election by a secret ballot unlawfully counted non-secret ballots as secret ballots, especially where there would be no confusion at all as to who is the winner following the discounting of the invalid votes. An election may be set aside if it is not clear, upon determination of the conduct forming the ground on which the validity of the election is impugned, who was the winner. In this case, there is clear evidence of the election of the Speaker of the House in accordance with the mode of voting prescribed by the law governing the election concerned.”…,.

At 386D-387A the judgment in Moyo and Ors v Zvoma N.O. and Anor 2011 (1) ZLR 345 (S) quoted a passage from Woodward v Sarsons (1875) LR 10 CP 733, where LORD COLERIDGE CJ said:

“As to the first point, we are of opinion that the true statement is that an election is to be declared void by the common law applicable to Parliamentary elections, if it was so conducted that the tribunal which is asked to void it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation or to be prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not open or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a Returning Officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void…,.”

The dissenting judgment in Moyo and Ors v Zvoma N.O. and Anor 2011 (1) ZLR 345 (S) at 387G-388B went on to state as follows:

“It would, in my view, be contrary to fairness and justice to say, as a matter of principle, that the Legislature intended that the election of the Speaker conducted by a secret ballot in terms of the law be nullified on account of, say, a single invalid vote counted by the official conducting the election as a secret ballot. The intention of the Legislature must be that only irregularities which undermined the achievement of the object or purpose of the legislation of ensuring an election of the Speaker based on universal, equal, direct and personal vote freely expressed by a secret ballot should vitiate the election. In the exercise of review powers, the court a quo came to the conclusion that the improper counting of invalid votes as secret ballots was not an irregularity of the class the Legislature intended would vitiate the election. The conclusion is, in my view, not evidence of a misdirection on the part of the court a quo. It is when the irregularity affected the actual discharge of the positive duty to conduct the election by a secret ballot and not by any other type of vote that it may be used as a ground for challenging the validity of the election by a secret ballot.”…,.

The position is the same in a number of other African jurisdictions.

Ghana

In Re Election of First President – Appiah v The Attorney General, reported at pp 1423 1436 “A Sourcebook of Constitutional Law of Ghana”, 1970, BANNERMAN ACJ, citing Medhurst v Lough Casquet [1901] 17 LTR 210 per KENNEDY J, stated …, as follows:

“'An election ought not to be held void by reason of transgression of the law committed without any corrupt motive by the returning officer or his subordinate in the conduct of the election where the court is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, that is the success of the one candidate over the other, could not have been affected by those transgressions. If, on the other hand, the transgressions of law by the officials being admitted, the court sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it was open to reasonable doubt whether these transgressions may not have affected the result and it [was] uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the court is then bound to declare the election void. It appears to us that this is the view of the law which has generally been recognised and acted upon by the tribunals which have dealt with election matters.'”…,.

In Nana Addo Dankwa Akufo-Addo and Ors v John Dramani Mahama & Ors [2013] (J1/6/2013) GHASC, the petitioners claimed -

(1) That the election had been marred by irregularities and electoral improprieties such as over-voting, lack of signatures on the declaration forms by the presiding officers, lack of biometric verification of voters, duplicate serial numbers, unknown polling stations and duplicate polling station codes;

(2) That the said malpractices were alleged to have affected the election. They contended that the irregularities vitiated the Presidential results in eleven thousand nine hundred and sixteen (11,916) polling stations by four million six hundred and seventy thousand five hundred and four votes (4,670,504); and

(3) That if these votes were to be annulled, the first petitioner would receive three million seven hundred and seventy-five thousand five hundred and fifty-two votes representing 59.69% of votes cast, while the first respondent would receive two million four hundred and seventy-three thousand one hundred and seventy-one votes representing 39.1% of votes cast.

The Supreme Court of Ghana…, held as follows:

“…, a petitioner is not entitled to an order quashing election results merely upon establishing some form of non-compliance with the rules governing the poll; the noncompliance must further either be of a substantial proportion or the non-compliance must produce a different outcome in the election, namely, result in some person emerging victor who would but for the non-compliance not secure such victory.”

In the words of the majority of the panel, compliance failures do not automatically void an election, unless explicit statutory language specifies the election is voided because of the failure.

It was also held by a majority of 5 to 4 that if the elections were conducted substantially in accordance with the principles laid down in the Constitution and all governing laws, and there was no breach of law such as to affect the results of the elections, the elections would have reflected the will of the Ghanaian people.

The Supreme Court of Ghana…, further held that the judiciary in Ghana, just like its counterparts in other jurisdictions, does not readily invalidate a public election but often strives, in the public interest, to sustain it. At p 42 of the same judgment, it went on to find that, in deciding whether to disturb the outcome of the Presidential election, the broad test to guide the court was whether the petitioner clearly and decisively had shown the conduct of the election to have been so devoid of merit as not to reflect the expression of the people's electoral intent.

The Supreme Court of Ghana also relied on Halsbury's Laws of England 4Ed Vol 15 (4)…, where it is stated as follows:

“No election is to be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate elections rules if it appears to the tribunal having cognizance of the question that the election was conducted substantially in accordance with the law as to the elections, and that the act or omission did not affect the result. The function of the court, in exercising this jurisdiction, is not assisted by consideration of the standard of proof, but, having regard to the consequences of declaring an election void, there must be a preponderance of evidence supporting any conclusion that the rule was affected.”

Kenya

Headnote 13 of Raila Odinga and Five Ors v Independent Electoral and Boundaries Commission and Three Ors (Petition 5,3 and 4 of 2013) [2013] eKLR reads as follows:

“13. The conduct of the presidential election was not perfect, even though the election had been of the greatest interest to the Kenyan people who had voluntarily voted. Although there were many irregularities in the data and information captured during the registration process, they were not so substantial as to affect the credibility of the electoral process, and, besides, no credible evidence had been adduced to show that such irregularities were premeditated and introduced by the first respondent, for the purpose of causing prejudice to any particular candidate.”

Uganda

The Supreme Court of Uganda, in Col. Dr Kizza Besigye v The Attorney-General (Constitutional Petition No.13 of 2009) [2016] UGCC 1, considered the question whether the 2006 Ugandan Presidential election could be annulled for irregularities and malpractices proved to have occurred. According to ODOKI CJ, to annul an election on the basis that some irregularities had occurred, without considering the impact of the irregularities, would be tantamount to the court usurping the will of the people in their determination of who their leader should be.

The Supreme Court of Uganda unanimously found that in the conduct of the Presidential election there was non-compliance with the provisions of the Constitution, the Presidential Elections Act and the Electoral Commission Act. It was the unanimous finding of the court that some voters had been dis-enfranchised by the deletion of their names from the voters register and that the counting, and, at some polling stations, the tallying of results had been marred by irregularities. Further, the court made a unanimous finding that in some areas of the country the principle of free and fair elections had been compromised by incidents of bribery and intimidation and that in some areas the principle of equal suffrage, transparency of the vote, and the secrecy of the ballot were undermined by multiple voting and vote stuffing.

Nevertheless, the Supreme Court of Uganda held, by a majority of 4 to 3, that it had not been proved by the petitioner that the failure to comply with the provisions of the law governing the Presidential election had affected the results of the election in a substantial manner. It held that although the conduct of the election could not be said to have been perfect, the broad test that guided the court in deciding whether it should “disturb” the outcome of the election was:

“Did the petitioner clearly and decisively show the conduct of the election to have been so devoid of merit as not to reflect the expression of the people's electoral intent?”

The Supreme Court of Uganda opined that, in a democracy, the election of a leader is the preserve of the voting public and that a court should not tamper with results which reflect the expression of the population's electoral intent. Inherent in the judgment is the philosophy that the fundamental consideration in an application challenging the validity of an election should be whether the will of the people has been affected by the irregularities or non-compliance with the provisions of the law governing the conduct of the election. It said, at p 27:

“In a democratic system constituted strictly on the basis of majoritarian expression through the popular vote, the essence of an election is that the people should be governed by individuals of their choice. It is the individual preferred by the majority that has the legitimacy to be in leadership. The Constitution gives power to voters to choose who is to govern them….,.”

At p 29 of the judgment, it went on to hold as follows:

“Annulling of presidential election results is a case by case analysis of the evidence adduced before the court. Although validity is not equivalent to perfection, if there is evidence of such substantial departure from constitutional imperatives that the process could be said to have been devoid of merit and rightly be described as a spurious imitation of what elections should be, the court should annul the outcome. The courts, in exercise of judicial independence and discretion, are at liberty to annul the outcome of a sham election, for such is not in fact an election. Although Morgan and Others v Simpson and Another (supra) was not a presidential election petition, but rather a challenge to the validity of results of a local government election, I am persuaded by the principle enunciated in the words of STEPHENSON LJ which I will adopt. HIS LORDSHIP said:

'For an election to be conducted substantially in accordance with the law there must be a real election….,. and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election.'”

Nigeria

In Muhammadu Buhari v Independent National Election Commission and Four Ors (2008) 12 SC (Part I) 1, the Supreme Court of Nigeria…, quoted with approval the following remarks of BELGORE JSC in Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1:

“It is manifest that an election, by virtue of section 235(1) of the Act, shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provisions of the Act. It must be shown clearly by evidence that the non-compliance has affected the result of the election. Election and its victory is like soccer and goals scored. The Petitioner must not only show substantial non-compliance but also the figures, i.e. votes that the compliance attracted or omitted.”…,.

England

In Morgan and Others v Simpson and Anor [1975] Q.B. 151 it was held as follows…,:

“1. If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not…, [that is, for example, where two out of 19 polling stations were closed all day].

2. If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls – provided that it did not affect the results of the election.

3. But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls – and it did affect the results – then the election is vitiated.”

Canada

In Ted Opitz v Borys Wrzesnewskyj 2012 SCC 55, [2012] 3 S.C.R. 76…, the Supreme Court of Canada held, in an election petition, that:

“The practical realities of election administration are such that imperfections in the conduct of elections are inevitable. As recognised in Camsell v Rabesca, [1987] N.W.T.R. 186 (S.C.), it is clear that 'in every election a fortiori, those in urban ridings, with large numbers of polls, irregularities will virtually always occur in one form or another' (p 198). A Federal election is only possible with the work of tens of thousands of Canadians who are hired across the country for a period of a few days, or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply multiple rules in a setting that is unfamiliar. Because elections are not everyday occurrences, it is difficult to see how workers could get practical, on-the-job experience.'”

One of the headnotes in the judgment reads:

“Lower courts have taken two approaches to determine whether votes should be invalidated on account of irregularities. Under the strict procedural approach, a vote is invalid if an official fails to follow any one of the procedures aimed at establishing entitlement. Under the substantive approach, an election official's failure to follow a procedural safeguard is not determinative. Only votes cast by persons not entitled to vote are invalid.

The substantive approach should be adopted, as it effectuates the underlying right to vote, not merely the procedures used to facilitate that right.

The substantive approach has two steps under section 524(1)(b). First, an applicant must demonstrate that there was a breach of a statutory provision designed to establish the elector's entitlement to vote. Second, the applicant must demonstrate that someone not entitled to vote, voted. He may do so using circumstantial evidence. This second step establishes that the 'irregularity affected the result' of the election. Under this approach, an applicant who has led evidence from which an 'irregularity' could be found will have met his prima facie evidentiary burden. At that point, the respondent can point to evidence from which it may be reasonably inferred that no 'irregularity' occurred or that, despite the 'irregularity', the voter was in fact entitled to vote. After-the-fact evidence of entitlement is admissible. If the two steps are established, a vote is invalid.

Finally, although a more realistic test may be developed in the future, the 'magic number test' is used for the purposes of this application. It provides that an election should be annulled if the number of invalid votes is equal to or greater than the successful candidate's plurality.”…,.

From the above persuasive foreign decisions, a court will only invalidate a Presidential election in the following circumstances -

1. Upon proof of commission of electoral malpractices of such a nature and scale as to make it impossible for the court to hold that the result of an election represents the will of the electorate.

2. The Presidential election was so poorly conducted that it could not be said to have been conducted in accordance with the principles for conducting a free, fair and credible election prescribed by the Constitution and the law of elections.

3. The proved irregularities, whilst showing non-compliance with particular provisions of the law of elections, are of such a nature and effect that they affected the result of the Presidential election.

It was for the applicant to prove, to the satisfaction of the Court, the commission of the alleged irregularities by the officers of the Zimbabwe Electoral Commission - and that the irregularities affected the Presidential election result.

There is a controversy on whether the standard of proof to be applied in election petitions should be the civil standard of balance of probabilities or the criminal standard requiring proof beyond a reasonable doubt. This is based on the fact that often the allegations relating to electoral malpractices include criminal and quasi-criminal allegations, such as bribery, fraud, corruption and violence.

In the decision of the Supreme Court of Kenya in Odinga and Anor v Independent Electoral and Boundaries Commission and Ors Presidential Election Petition No.1 of 2017 [2017] eKLR, the court struck a balance between the criminal and civil standard of proof. It said…,:

“…, where no allegations of a criminal or quasi-criminal nature are made in an electoral petition, an 'intermediate standard of proof', one beyond the ordinary civil litigation standard of proof on a 'balance of probabilities', but below the criminal standard of proof 'beyond reasonable doubt' is applied.”

The purpose of election laws is to obtain a correct expression of the will of the voters.

Where the allegations of electoral malpractices do not contain allegations of commission of acts requiring proof of a criminal intent, such as fraud, corruption, violence, intimidation and bribery, the standard of proof remains that of a balance of probabilities. In allegations that relate to commission of acts that require proof of criminal intent, the criminal standard of proof beyond reasonable doubt would apply. There is no basis for departing from settled principles of standards of proof to hold a petitioner to a higher standard of proof in electoral petition cases simply by reason of their sui generis nature. In the view of the Court, there is no justification for an “intermediate standard of proof” to be applied in election petitions.

THE NEED FOR THE APPLICANT TO HAVE PRODUCED PRIMARY EVIDENCE

A significant part of the applicant's challenge related to the results and the figures announced by the Zimbabwe 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…,. In short, it was alleged that there was rigging of the Presidential election result.

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. Evidence would have been required to prove allegations of complicity with the Zimbabwe Electoral Commission by the winner of the Presidential election alleged to be the deliberate beneficiary of the allegedly improper Presidential election.

Nevertheless, if the applicant had proved that the Zimbabwe Electoral Commission committed irregularities and had met the legal requirements of such a petition as to the requisite standard of proof, this alone would have been sufficient to invalidate the Presidential election even in the absence of direct involvement by the first respondent.

PRIMARY EVIDENCE RULE

It is important, at this juncture, to discuss the primary evidence rule to clearly show that the applicant's failure to resort to section 67A, as read with section 70(4) of the Electoral Act [Chapter 2:13] was detrimental to his case.

The primary evidence was required to be produced in order to prove that the Presidential election result had indeed been rigged. The evidence was to be found in the sealed ballot boxes and the sealed packets.

The earliest statement of the primary evidence rule was in Ford v Hopkins (1700) 1 Salk. 283, 91 E.R. 250, as referred to in DUHAIME's Law Dictionary, where it was stated that “the best proof that the nature of the thing will afford is only required.”

In Omychund v Barker (1745) 1 Atk 21…, as referred to in DUHAIME's Law Dictionary, it was said:

“The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will allow.”

The primary evidence rule disallows the use of evidence other than the primary evidence where that evidence is in existence. This was stated in Doe D Gilbert v Ross (1840) 7 M. & W.102…, as referred to in Duhaime's Law Dictionary, as follows:

“The law does not permit a man to give evidence which from its very nature shows that there is better evidence within his reach which he does not produce.”

The reason behind the primary evidence rule was explained in 1754 by GILBERT “The Law of Evidence” (1^st ed 1754). In that textbook, the author stated…, that:

“The first therefore, and most signal rule, in relation to evidence, is this, that a man must have the utmost evidence, the nature of the fact is capable of; for the design of the law is to come to rigid demonstration in matters of right, and there can be no demonstration of a fact without the best evidence that the nature of the thing is capable of; less evidence doth create but opinion and surmise, and does not leave a man the entire satisfaction that arises from demonstration.”…,.

As stated by GILBERT in “The Law of Evidence” (1^st ed 1754), the duty of a court in a matter where factual issues are heavily disputed is to establish the truth. The court becomes a trier of fact. The dispute is, however, between the parties who have the duty to place evidence before the court in order for the truth to be established.

It has already been established that the duty lay on the applicant to prove the factual allegations that he made regarding the authenticity of the Presidential election result that was declared in favour of the first respondent. He had the onus of providing evidence that would best facilitate the central task of accurately resolving the disputed Presidential election result. The applicant ought to have gone to the used ballot papers in terms of section 67A of the Electoral Act and sought the truth of the matter.

The truth sought lay in the determination of the question whether or not the votes, as declared by the twenty-fourth respondent, tallied with what was contained in the ballot boxes.

Section 67A of the Electoral Act was enacted upon the realisation that it is only the used ballot papers themselves that are clear, sufficient, direct and credible evidence of what actually transpired when the electorate made their choices in a Presidential election. The counterfoils from which the ballot papers are torn are the evidence of residue. They remain sealed in separate packets at the end of the poll. They are the evidence of residue of what actually transpired as to the number of persons that participated during the vote.

The purpose of the remedies provided for under sections 67A and 70(4) of the Electoral Act is to ensure that a decision to embark on unnecessary litigation challenging the validity of a Presidential election is not made. The remedies 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 Presidential election itself was properly conducted, and whether the true expression of the will of the voters was announced, would have been addressed by the parties before the court application was lodged.

The remedies provided for by the Electoral Act 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 Presidential election. These are not remedies for the respondent's benefit. They are meant to protect the rights of those who are aggrieved by the result of a Presidential election.

When the Presidential election result was declared, in the early hours of 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 right to challenge the result. Time was on his side to obtain such evidence from the Presidential election residue.

The applicant did not exercise his right in terms of section 70(4) of the Electoral Act as an aggrieved candidate in the Presidential election. His main reason for not resorting to section 70(4) of the Electoral Act was that “he could not drink from a poisoned chalice”. One wonders how he knew that the chalice was poisoned without establishing if indeed it was poisoned. It was the Court that needed to be satisfied, from real evidence, that the sealed ballot boxes and the sealed packets were indeed “poisoned chalices”.

There was no evidence that the closed and sealed ballot boxes and the sealed packets had been tampered with, save for the assumption by the applicant that the ballot boxes were “poisoned chalices”. 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.

Without the primary evidence, the applicant did not have proof of the reality of what actually transpired on the day of the vote. He did not have the evidence that is required by the law as cogent evidence for challenging the validity of a Presidential election result.

In order to prove fraud, collusion, lack of secrecy, and failure to properly conduct assisted voting, the applicant ought to have gone to the sealed ballot boxes and the sealed packets.

The applicant's election agents would have lodged complaints as the irregularities occurred. They were entitled to do so by the law. The applicant's election agents signed the V11 Forms to indicate that they agreed with what was contained therein.

Armed with the evidence, either from a recount where the figures are alleged to be incorrect, or an examination of the contents of the sealed boxes and the sealed packets, the applicant would have had a clear picture of the true result of the Presidential election. He would have been clear as to whether allegations of any malpractices and irregularities regarding the actual votes cast and the results announced would be substantiated.

An applicant for a declaration of invalidity of a Presidential election result is, of course, not bound to resort to the remedies for accessing the real evidence contained in the closed and sealed ballot boxes and the sealed packets for the purpose of the court application he or she intends to lodge with the Court. He or she is free to decide how to plead the case and choose what evidence to adduce to prove the allegations on the basis of which the application is made.

In Odinga and Anor v Independent Electoral and Boundaries Commission and Ors Presidential Election Petition No.1 of 2017 [2017] eKLR, the Supreme Court of Kenya nullified the Presidential election result, among other reasons, on the allegation by the petitioners that the electronic server used to transmit and store the results had been hacked or deliberately tampered with in favour of the winner of the presidential election. It had been argued by the petitioners that section 39(1C) of the Elections Act, which provided for simultaneous electronic transmission of results from the polling stations to the Constituency Tallying Centre (CTC) and the National Tallying Centre (NTC), immediately after the counting process at the polling station, had been violated.

What had transpired in Odinga and Anor v Independent Electoral and Boundaries Commission and Ors Presidential Election Petition No.1 of 2017 [2017] eKLR was that, contrary to the mandatory provisions of section 39(1c) of the Elections Act, after polling stations were closed on 8 August, 2017 the Independent Electoral and Boundaries Commission (“IEBC”) inordinately delayed in the transmission of the results. It is reported that on 17 August 2017 (nine days after the elections) the IEBC's Chief Executive Officer allegedly admitted that IEBC had not received all scanned Forms 34A and 34B (which contained results from the polling stations). The court concluded…, that section 39(1C) was mandatory and provided the imperative for electronic transmission of results from the polling station to the National Tallying Centre.

Section 39(1c) of the Elections Act of Kenya reads:

“For purposes of a presidential election, the Commission shall -

(a) Electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the Constituency Tallying Centre and to the National Tallying Centre;

(b) Tally and verify the results received at the National Tallying Centre; and

(c) Publish the polling result forms on an online public portal maintained by the Commission.”

The delay by the Independent Electoral and Boundaries Commission (IEBC) to avail the scanned copies of the Forms 34A and 34B formed the basis for a conclusion that the security of the electronic system had been compromised thus exposing it to unlawful interference and manipulation of results by third parties. This rendered the presidential election a sham.

Odinga and Anor v Independent Electoral and Boundaries Commission and Ors Presidential Election Petition No.1 of 2017 [2017] eKLR is distinguishable from the present matter on two grounds;

(i) First, section 39(1C) of the Elections Act of Kenya provided for simultaneous electronic transmission of results from the polling stations to the Constituency Tallying Centre (“CTC”) and the National Tallying Centre (“NTC”) immediately after the counting process at the polling station.

It meant that whoever required access to the presidential election results or copies of the polling station logs would have to access the Independent Electoral and Boundaries Commission (IEBC) server upon request. The IEBC server was, by operation of the law, the repository of the primary evidence the petitioners needed for proof of the allegations they made against the respondents.

In Zimbabwe, the counting and transmission of the results is wholly manual.

The process involves counting of all the ballots at the polling station - in the presence of election agents of candidates who participated in the election. A polling station return, the V11 Form, is completed and countersigned by the election agents. The import of sections 64-65B of the Electoral Act is that they lay down the processes and procedures for the counting of votes, securing of the voting material and transmission of the polling station returns together with the election residue.

The results obtained at the polling station, together with the election residue, are transmitted, physically, to the Ward Centre, where a similar process of collating all the results from different polling stations is repeated. The results from the Ward Centre are then transmitted to the Constituency Centre. A similar process is repeated, culminating in the collated results for the constituency again being physically transmitted to the Constituency Centre, and, finally, to the National Command Centre.

This distinction in the processes is important in that it brings to the fore the fact that in the Kenyan system election results, together with the residue thereof, are to be transmitted electronically and received almost instantaneously from the polling station to both the Constituency Tallying Centre and the National Tallying Centre.

(ii) Second, and even more importantly, the Independent Electoral and Boundaries Commission (IEBC) had been requested to provide access to its server where the election results and residue were stored electronically. It refused, neglected or failed to provide the access to the petitioners. Further, an order of the court compelling the IEBC to allow the petitioners access to the requested material had not been complied with. On account of this failure to comply with the requests and order of the court, the Supreme Court of Kenya concluded…, that the Independent Electoral and Boundaries Commission (IEBC) had denied the petitioners access to primary evidence which could have debunked their claims. It said:

“[279] It is clear from the above that IEBC in particular failed to allow access to two critical areas of their servers: its logs which would have proved or disproved the petitioners' claim of hacking into the system and altering the presidential election results and its servers with Forms 34A and 34B electronically transmitted from polling stations and CTCs. It should never be lost sight of the fact that these are the Forms that section 39(1C) specifically required to be scanned and electronically transmitted to the CTCs and the NTC. In other words, our Order of scrutiny was a golden opportunity for IEBC to place before Court evidence to debunk the petitioners' said claims. If IEBC had nothing to hide, even before the Order was made, it would have itself readily provided access to its ICT logs and servers to disprove the petitioners' claims.

But what did IEBC do with it? It contumaciously disobeyed the Order in the critical areas.

[280] Where does this leave us" (?)

It is trite law that failure to comply with a lawful demand, leave alone a specific Court Order, leaves the Court with no option but to draw an adverse inference against the party refusing to comply. In this case, IEBC's contumacious disobedience of this Court's Order of 28^th August, 2017 in critical areas leaves us with no option but to accept the petitioners' claims that either IEBC's IT system was infiltrated and compromised and the data therein interfered with or IEBC's officials themselves interfered with the data or simply refused to accept that it had bungled the whole transmission system and were unable to verify the data.”

In terms of the Electoral Law of Zimbabwe, if a Presidential candidate requires that a re-count of votes in a Presidential election be conducted by the Zimbabwe Electoral Commission, he or she must make a written request for the recount to the Commission within forty-eight hours of the announcement and before the declaration of the winner. The applicant had the opportunity to do so but consciously took a decision not to follow the law and make such a request. He was also free to apply to the Electoral Court, in terms of section 70(4) of the Electoral Act, for an order which would have given him the right of access to the primary evidence contained in the closed and sealed ballot boxes and the sealed packets. As a result, unlike in Kenya, there was no basis for the Court to conclude that the sealed residue contained different results from those announced by the Zimbabwe Electoral Commission or that such ballots had been tampered with in favour of the first respondent.

The ground on which the application challenging the validity of the Presidential election was premised was the allegation that officers of the body responsible for conducting and managing the election acted unlawfully and rigged the election result. It was said that the officers did so by crediting the first respondent, who was declared to be duly elected as President of the Republic of Zimbabwe, with votes not generated from the polling stations officially designated.

It would defeat the purpose of section 70(4) of the Electoral Act if the Court failed to hold to account an applicant who lodges a court application challenging the validity of a Presidential election, on the allegation that the Zimbabwe Electoral Commission rigged the election result, for failure to use primary evidence to prove the alleged rigging of the election result. The reason is that the purpose of the requirements of the provisions of sections 56 and 57 (on the verification of the identity of the voters and the manner of voting), section 59 (on the procedure for voting by illiterate or physically handicapped voters), section 63 (the counting and rejection of votes), section 64 (the procedure after counting of votes at polling stations) and section 110 (the verification of constituency returns by the Chief Elections Officer and the declaration of the result of election to the Office of President), is to ensure that cases of rigging of the election result do not occur.

The Legislature made provision for strict compliance with the procedures of voting, counting of votes and verification of the constituency returns to guarantee transparency of the actions of the officers of the Zimbabwe Electoral Commission at every stage of involvement in the processes. The intention was that the products of the processes should constitute real and credible evidence of compliance with the law and a guarantee of the credibility of the election result.

The persons the applicant accused of rigging the Presidential election result are the same that the relevant provisions of the Electoral Act subject to rigorous rules of conduct during the voting process, the counting and rejection of votes, the verification of the constituency returns, and the declaration of the result. The demand of strict compliance with the relevant provisions of the Electoral Act, under circumstances of transparency and accountability, ensures the fairness and credibility of the processes concerned.

Transparency and accountability in the performance of duties by officers of a body responsible for conducting an election are essential elements of a credible election. Public officials performing their official duties under a high degree of scrutiny and observation, as prescribed by the provisions of the Electoral Act set out in this judgment, are unlikely to slip into the unacceptable behaviour of rigging the election results.

The applicant did not allege, specifically, that officers of the Zimbabwe Electoral Commission, who were under the obligation to act in accordance with the requirements of the provisions of the statute referred to, did not so act.

If the applicant had placed before the Court the V11 Forms from all the polling stations where he had election agents, a simple analysis of those V11 Forms and comparison with the V11 Forms from the sealed packets would easily have achieved a number of positive results. The exercise would have resulted in the following benefits -

(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, as, 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;

(e) It would also have addressed issues of improbability of similar and identical results at polling stations; and

(f) It would have addressed questions regarding the accuracy of the results and data provided by the Zimbabwe Electoral Commission.

The entire challenge to the correctness of the figures relating to the result of the Presidential election would have been easily resolved. If there was any irregularity, it would have been easily detectable.

Assuming the applicant did not have election agents at every polling station, a sample constituency could have been used. If there were instances where, for one reason or another, the V11 Forms were not recorded as they should have been, specific evidence detailing the gaps or discrepancies would have had to be produced to the Court. Such evidence could then have been used to support the allegations of irregular conduct 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.

AN ANALYSIS OF THE CASE PRESENTED BY THE APPLICANT ON ALLEGED IRREGULARITIES

It is important to state, at this stage, that the Zimbabwe Electoral Commission was not alleged to have failed to conduct peaceful harmonised elections. The Commission put in place measures which ensured that the harmonized elections were conducted in a peaceful environment before and during voting. The peaceful environment in the period before voting ensured that candidates and political parties enjoyed freedom of association, assembly and expression. They were able to campaign freely.

Ensuring that an election is held in a peaceful manner is one of the fundamental principles of good governance. Acting in accordance with the principle of ensuring that there is peace during the period preceding the polling day as well as on the polling day and after the polling day is an important factor in the determination of the question whether an election was free and fair.

The applicant made several generalised allegations of irregularities against the Zimbabwe Electoral Commission. He made a startling submission that these generalized allegations would suffice to prove the case without having recourse to the primary source evidence. The Zimbabwe Electoral Commission, nonetheless, took time to analyse the allegations against it and produced clear 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 Un-annotated 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. There appeared 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 remained as refuted.

Disenfranchisement of 40,000 teachers

The applicant alleged that some 40,000 teachers were denied the 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 to other constituencies 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 letter dated 17 July 2018, addressed to the Amalgamated Rural Teachers' Union of Zimbabwe by the Chief Elections Officer, is telling. It shows that, contrary to the allegations made by the applicant, the Commission put in place measures to allow civil servants seconded to it during the harmonised elections to cast their votes. The letter advises the leadership of the organisation of the measures put in place by the Commission to ensure that civil servants voted on the polling day. The measures included posting them to polling stations where they were registered to vote. If that was not possible, an officer was deployed to wards with the polling stations where he or she was registered to vote. If that was also not possible, the officer was deployed to a constituency with the polling station where he or she was registered to vote. In the case of officers deployed to wards or constituencies, the Commission provided them with transport, on the polling day, to go and cast their votes and return to their duties.

The Commission produced affidavits by members of the Civil Service, confirming that the exercise of their right to vote was in fact facilitated by the Commission. The Commission also produced declarations by members of the Civil Service seconded to it, signifying that they were forfeiting their votes in preference to being posted as polling officers.

The allegations made by the applicant were too bald and general to form the basis for the relief sought.

The Constitution gives every Zimbabwean citizen who is eligible to vote a right to vote. It is not an obligation under the Constitution to vote. There was no evidence of how many of these teachers were registered voters. There was no evidence of the effect the allegation, even if it were proved, would have had on the result. There was no guarantee that every teacher would have voted for the applicant.

Ghost polling stations

The allegations relating to ghost polling stations and polling stations created at the time of voting lacked specificity and particularity. They were, in any case, disproved by the evidence adduced for the Zimbabwe Electoral Commission and the twenty-fourth respondent (Chairperson of the Zimbabwe Electoral Commission). These are the kind of allegations that would have been easily proved by the evidence in the closed and sealed ballot boxes and the sealed packets.

The allegation by the applicant that some polling stations disappeared was unfounded. For one to allege disappearance of polling stations, one should have had first-hand knowledge of the places where the polling stations were located before they were dismantled. The applicant did not state the names of the polling stations that he alleged disappeared on the polling day. It would have been easy to identify the polling stations, as they would have formed part of the list of polling stations officially made public by the Zimbabwe Electoral Commission.

The applicant sought to present misleading evidence to prove the allegation that polling stations were created on the polling day. He pointed to what are referred to as “1HRDC” and “2HRDC” as examples of created polling stations. It turned out that these were in fact not polling stations. They were Ward 1 Hurungwe Rural District Council and Ward 2 Hurungwe Rural District Council.

The applicant sought to rely on a document titled “Collation of ward returns in respect of National Assembly constituency election”. It is not clear why he would seek to present the document as a return showing polling stations.

To the extent that the allegation that polling stations were created was based on false information, it remained an unfounded allegation.

Bribery of rural voters

The allegations made by the applicant in relation to voters in the rural areas are unfortunate. In an effort to show that the harmonised elections were not free, fair and credible, the applicant rehashed the allegation which has had pride of place in previous applications challenging the validity of elections in the country. The essence of the allegation is that voters in the rural areas vote for food aid or grain they receive from Government. If they are not voting for food aid, they are voting under the undue influence of traditional leaders who allegedly ensure that they vote for ZANU-PF.

Rural voters are not respected as independent human beings capable of rationalising about the use of the vote to protect and advance their own social, economic and political interests.

Whether living in rural or urban areas, Zimbabweans are educated people who are capable of understanding the meaning and use of the right to vote.

The bald and unsubstantiated allegation that rural voters cast votes for food aid distributed by Government or voted under the undue influence of traditional leaders to vote for ZANU-PF was made without reference to any developmental programme the applicant and the political party that sponsored his Presidential candidature put to the rural populace to persuade them to vote for him. The applicant campaigned freely in the rural areas. One must assume that he was able to put to the rural people the promises of his programme of development on the basis that they were rational people capable of deciding who to vote for in the privacy of the booth designed to guarantee and protect the secrecy of the ballot.

The standard of measures prescribed by the Zimbabwe Electoral Commission and the law of elections is that there be a vote of equal weight to any other signified on a ballot paper by a registered voter in the secrecy of a compartment designed for the purpose of expressing the preference of the candidate of the voter's free choice. Nowhere does the law require that the voter and the ballot be described as “rural”. If the vote is the product of strict compliance by the officers of the body tasked with the responsibility of conducting the election with the procedures of processing the applications for ballot papers prescribed by the law to ensure transparency and accountability, it deserves equality of treatment.

No evidence was produced by the applicant of specific occasions where there was distribution of food or agricultural inputs geared at inducing the electorate to vote for a particular political party or candidate.

The influence of traditional leaders

The influence traditional leaders were alleged to have exerted on voters in rural areas to vote for the first respondent is not borne out by the facts. The allegation of involvement of traditional leaders was not linked to any other relevant information.

If traditional leaders had the influence the applicant alleged they had over voters in the rural areas during the harmonized elections, the number of votes received by a candidate in the Parliamentary election sponsored by ZANU-PF would tally with the number of votes received by the ZANU-PF Presidential candidate at every polling station situated in a rural area.

It was common cause that there were many polling stations situated in rural areas where the Parliamentary candidate sponsored by ZANU-PF received far more votes than the first respondent received. The difference between the Parliamentary and the Presidential votes in rural areas demonstrates the exercise by voters in these polling stations of the freedom of choice of candidates by secret ballot.

The closeness of the votes received by the applicant and the first respondent testifies to the enjoyment by the voters of the right to freely exercise the right to vote. The high number of Presidential candidates meant that the voters in rural areas were free to vote for a Presidential candidate of their choice.

It is also possible that some voters exercised the right conferred on a voter by section 56(3a) of the Electoral Act. The subsection provides that, if polling in two or more elections is being conducted simultaneously at the polling station, an applicant for a ballot paper may decline to accept a ballot paper for any one or more of those elections. If an applicant declines to accept a ballot paper for an election the presiding officer is required not to hand the applicant a ballot paper for the election.

He must, however, record in such manner as may be prescribed or directed by the Zimbabwe Electoral Commission that the applicant did not, at his or her request, receive the ballot paper or ballot papers.

All this evidence would have assisted the Court in determining the truth of the allegation about the influence traditional leaders had on voters in rural areas. The evidence formed part of the sealed packets.

The Zimbabwe Electoral Commission indicated that the applicant did not complain to it in terms of section 239(k) of the Constitution about specific cases of traditional leaders actively influencing their subjects to vote for a particular political party.

Section 281 of the Constitution imposes a duty on a traditional leader not to be a member of any political party or in any way participate in partisan politics. He or she must not act in a partisan manner or further the interests of any political party or cause.

Accusations of undue influence made against traditional leaders have their basis in the personal behaviour of individual traditional leaders. The allegations had to be specific and particular. The applicant remained content with making bald and generalised allegations against traditional leaders.

Lack of independence of the Commission

The allegation that the Zimbabwe Electoral Commission lacked independence was without foundation. It was made for the sake of making it. It must have been known to the applicant that the Commission is one of the Independent Commissions established under Chapter 12 of the Constitution. One of the general objectives for which Independent Commissions were established is to support and entrench human rights and democracy.

Apart from the Chairperson of the Zimbabwe Electoral Commission, who is appointed by the President after consultation with the Judicial Service Commission, the other members of the Commission are appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders. Needless to say, the Committee on Standing Rules and Orders includes Members of Parliament from the applicant's political party.

One of the specific functions of the Zimbabwe Electoral Commission, under section 239 of the Constitution, is to prepare for, conduct, and supervise elections to the Office of President and to Parliament. The Commission is under a duty to ensure that the elections are conducted efficiently, freely, fairly, transparently and in accordance with the law.

The Constitution makes it clear that the Commission is independent. It is not subject to the direction or control of anyone. It must exercise its functions without fear, favour or prejudice. The only control over the exercise of its functions is that it must act in accordance with the Constitution.

In fact, no person may interfere with the functioning of the Zimbabwe Electoral Commission.

Members of the Zimbabwe Electoral Commission are required to be non-political. They are not to act in a partisan manner. They are not to further the interests of any political party or cause.

Wearing of partisan clothing

The applicant took issue with the fact that the Chairperson of the Zimbabwe Electoral Commission appeared in a photograph with a scarf containing colours of the national flag hanging over her shoulders. He alleged that she supported the first respondent, who usually wears a similar scarf.

To then suggest, without more, that because the Chairperson of the Commission had the scarf over her shoulders when a single photograph was taken of her she would be biased towards the first respondent and influence the whole electoral process to be conducted in favour of the first respondent is not to take the Court seriously. The applicant ought to have known that a challenge to the validity of a Presidential election could not be successfully mounted on flimsy allegations of this nature.

The facts show why the applicant ought not to have made the allegations of bias against the Chairperson of the Commission based on the incident of the photograph depicting her wearing the scarf. The Chairperson of the Commission was photographed wearing the scarf bearing the colours of the national flag on 05 February 2018. The Nomination Court for the harmonised elections sat on 14 June 2018. The photograph was taken during the pre-election period. There was no connection, at the time, with any Presidential election campaign.

It is in the public domain, and is a matter of fact, that the scarf first appeared when it was being worn by all members of the Zimbabwe delegation at the World Economic Forum in Davos, Switzerland, held from 23 to 26 January 2018. At that time, it was not a partisan but a national symbol. It could not have morphed from being a symbol of national pride to a symbol of a Presidential election campaign within ten days to the time the photograph was taken.

It was baseless to assert that the wearing of the scarf by the Chairperson of the Zimbabwe Electoral Commission, in the circumstances, is evidence of bias on her part in favour of the first respondent.

Failure of the State-owned media to comply with section 61(4) of the Constitution

The applicant alleged that the State-owned media followed the ruling political party, and, by extension, the first respondent in its programmes. That is all he could say.

It was a bald and general allegation.

There was no attempt at all to show any connection between the alleged favouritism extended to the first respondent in the programmes and the outcome of the Presidential election.

The applicant did not, however, deny that he and the MDC-Alliance were given access to the State owned media.

Section 61(4) of the Constitution imposes on the State-owned media the duty to afford fair opportunity for the presentation of divergent views and dissenting opinions without compromising the independence to freely determine the editorial content of their broadcasts or other communications.

Acceptable evidence produced by the Zimbabwe Electoral Commission showed that the applicant and the MDC-Alliance were free to buy airtime from the ZBC. During the period extending from 02 July to 09 July 2018 political parties and candidates contesting the harmonised elections were invited to take up advertising airtime on the ZBC platforms. The applicant and the MDC-Alliance bought advertising time on 14 July 2018. After having advertising material flighted on 14, 16, 24 and 28 July 2018, on radio, no more advertising material was forwarded to the ZBC because the applicant and the MDC-Alliance could no longer afford to pay for the advertising airtime on the ZBC platforms.

The evidence produced by the respondents showed that the applicant and the MDC-Alliance had their manifesto and programmes recorded and transmitted through the ZBC-TV. The applicant and the MDC-Alliance also took part in political debates on national radio.

Evidence produced by the respondents showed that the applicant and the MDC-Alliance were invited to place advertisements in Zimpapers newspapers. They indicated willingness to place advertisements in the newspapers in the last week of July 2018. They did not fulfil the promise.

In terms of section 10 of the Zimbabwe Electoral Commission (Media Coverage of Elections) Regulations S.I.33 of 2008 (“the Regulations”), remedies are provided to participants in an election who allege malpractices or breach of the law by the State-owned media.

It was open to the applicant, in terms of the Regulations, to lodge an appeal with the Zimbabwe Electoral Commission against any decision of any State-owned media institution that he considered to be outside the parameters of the law. This included any questions of bias, as alleged by the applicant.

A further right to appeal to the Electoral Court from any decision of the Commission on the issue is afforded. All the remedies are provided in the interest of speedy and effective resolution of any grievances that may arise during an election period relating to media coverage.

It was common cause that the Zimbabwe Electoral Commission did not receive any appeal from the applicant with respect to media coverage during the electoral period in terms of the Zimbabwe Electoral Commission (Media Coverage of Elections) Regulations, S.I.33 of 2008.

Threats to voters of injury, damage, harm or loss

On the allegations of the presence of “rogue elements”, who identified themselves as being from the security sector, who went about “campaigning and threatening villagers”, nothing more was provided.

It remained a bald allegation.

There was no indication as to where this happened, when it happened, or which of the candidates in the harmonised elections the alleged “rogue elements” were campaigning for. There was no indication in the founding affidavit whether a report was made to the police. There was no attempt to show the relevance of the allegation to the court application challenging the validity of the Presidential election.

The averment lacked particularity in an application seeking relief declaring an election or the result invalid. There was need to have specific incidents of actions of the alleged rogue elements referenced. Affidavits by the affected people ought to have been furnished. This was important as there was no guarantee that the people concerned were members of the security sector.

Investigations would have had to be carried out to establish the true identity of the people vaguely described as “rogue elements”. All that was presented to the Court were bald averments.

Failure by the Commission to provide a complete Voters Roll

It was not easy to understand why the applicant found it necessary to make the allegation that he received a voters roll that did not contain any biometric data on it, such as photographs and fingerprints. Photographs are not biometric data. It is not clear why a candidate in an election would seek to have a voters roll in his or her possession containing the fingerprints of all the registered voters.

The MDC-Alliance had been a party to the case of Mpezeni v ZEC and Ors HH475-18. The High Court granted an order interdicting the Zimbabwe Electoral Commission from publishing photographs of voters in the voters roll. It was held that doing so would violate the voter's right to privacy, as protected in the Constitution. The applicant would have been well aware, before the election, that the voters roll which he was going to receive would not contain photographs. He could not blame the Zimbabwe Electoral Commission for acting in terms of the law.

There is a court order which was not appealed against. The contents of the order remain extant. The effect of the order was to dispose of the issue of publication of photographs in the voters roll. For some reason, the applicant brought the matter before the Constitutional Court as if it was a fresh issue to be decided upon.

Discrepancies in the Voters Roll

The applicant made bald and unsubstantiated allegations that the Zimbabwe Electoral Commission produced a voters roll riddled with discrepancies. He alleged that reports indicated that 625,000 voters were missing from the voters roll - the reports that formed the source of the allegation were not named.

On 10 June 2018, the Commission called on stakeholders who wished to conduct independent audits of the voters roll to do so. They were asked to share their findings with the Commission. The Zimbabwe Election Support Network (“ZESN”) conducted an independent audit of the voters roll. It gave a positive assessment of the voters roll prepared by the Zimbabwe Electoral Commission.

Section 28(1) of the Electoral Act [Chapter 2:13] gives the right to a voter to object, in writing, to a voter registration officer, to the retention of any name on the voters roll of the constituency in which the objecting voter is registered. A voter may object to the removal of his or her name from a voters roll.

The applicant did not state whether, upon receiving the reports he referred to, he or the compilers of those reports availed himself or themselves of the remedies outlined in the Electoral Act to redress the alleged anomalies. He did not say whether he or the compilers of the reports caused properly placed voters to take up such processes as are provided for under section 28 of the Electoral Act.

There was no connection shown by the applicant between the allegation of the 625,000 voters missing from the voters roll and the Presidential election result. The fact that the applicant did not attempt to show why such a large number of voters could have been allowed to vote without the system detecting the fact that they were missing from the voters roll proves that he knew that the allegations were baseless.

Voter education

The allegation by the applicant to the effect that the Zimbabwe Electoral Commission allowed only ZANU-PF to conduct voter education using sample ballot papers for the purposes of rigging the harmonized elections was unfounded.

In terms of section 40C(1)(c) of the Electoral Act [Chapter 2:13], political parties are permitted to conduct voter education.

The twenty-fourth respondent (the Chairperson of the Zimbabwe Electoral Commission) averred that ZANU-PF requested that it be provided with a sample ballot paper relating to each ward or constituency under contestation in the harmonised elections.

The request was refused.

All the political parties contesting the harmonised elections, including the MDC-Alliance, were given three sample ballot papers. One sample ballot paper was provided for each election. The sample ballot papers were given to each political party for the purpose of enabling it to conduct voter education in terms of the law of elections.

There was no evidence produced by the applicant for the bald and general allegation that the giving of the sample ballot papers to ZANU-PF “created fertile ground for rigging through ballot swapping and stuffing”. The applicant did not say why the same allegation could not be levelled against the MDC-Alliance. It had also received three sample ballot papers for the purpose of conducting voter education.

The Court understood that ballot swapping would involve marking sample ballot papers to signify votes for the first respondent. The marked sample ballot papers would be placed in the ballot boxes as substitutes for used ballot papers in favour of the applicant. The ballot papers in favour of the applicant would be removed from the ballot boxes. Stuffing would involve putting in ballot boxes sample ballot papers marked with votes for the first respondent.

A number of questions arise from these unsubstantiated allegations.

The first relates to the fact that all the sample ballot papers were clearly endorsed “SAMPLE”. The applicant did not have any evidence to show how such a sample ballot paper could be swapped and passed for the actual ballot paper used in the election. The applicant did not relate to the rigorous process of voting prescribed by the Electoral Act. He had to relate to the process to show the stage at which the ballot swapping or stuffing would have occurred. He did not do what was expected of him because he must have known that the allegations he was making were baseless.

The number of ballot papers received is recorded on the V11 Forms as well as the number of ballot papers used. The latter number is determined by counting the counterfoils of issued ballots. Once that number is ascertained, the ballot boxes are then opened and the actual ballots in the boxes counted. If there had been stuffing of ballots, as the applicant suggested, the number of ballots in the boxes would be more than the number of issued ballots according to the counterfoils.

If the applicant held a well-grounded fear that there could be ballot swapping or stuffing in the harmonised elections using the sample ballot papers, he had the opportunity to seek the unsealing and re-opening of the election residue. The election residue would have been inspected for the presence, if any, of sample ballot papers.

Postal ballots

The applicant's premise that 7,500 police officers voted through the postal ballot system in the 2018 harmonised elections was not correct. Acceptable evidence produced by the Zimbabwe Electoral Commission showed that the total number of people who were permitted to cast a postal ballot paper in the 2018 harmonised elections was 7,464. Police officers constituted 4,482 of the total number of postal ballot voters. It was misleading for the applicant to aver that 7,500 postal ballots for police officers were processed in the 2018 harmonised elections and ought to be invalidated.

The issue was still whether there was any evidence that the secrecy of the vote in respect of the 4,482 police officers who voted by postal ballot was not maintained.

The twenty-fourth respondent (the Chairperson of the Zimbabwe Electoral Commission) indicated in the opposing affidavit that the Zimbabwe Electoral Commission did not receive complaints from any of the police officers who participated in the postal vote. No-one complained that he or she was not allowed to mark his or her ballot paper in secret and in the manner he or she wished in respect of choice of candidate.

The applicant did not place before the Court any affidavit from a police officer alleging that there was a coercive process by which postal voters were made to vote other than by secret ballot.

In Movement for Democratic Change v Zimbabwe Electoral Commission and The Commissioner-General of Zimbabwe Republic Police EC01/18, a challenge to the validity of the postal voting process for the 2018 harmonised elections was lodged with the Electoral Court. The application was dismissed on the ground that the applicant had failed to put before the Electoral Court any evidence in the form of affidavits by affected voters showing that the postal voting process had been compromised. There was no appeal against the decision of the Electoral Court.

The grounds for the dismissed application in the case before the Electoral Court were the same as those taken up by the applicant in the present application. There was still absence of evidence to prove the bald allegations made.

Design of the Presidential ballot paper

The allegation that the Zimbabwe Electoral Commission designed a Presidential election ballot paper with the aim of affording the first respondent an advantage in respect to votes over other candidates had no legal or factual basis. It ought not to have been made because the same allegation had been the subject of litigation in the Electoral Court.

In People's Democratic Party v Chairperson of ZEC and Anor EC09/18, the design of the Presidential election ballot paper had been challenged on the same grounds on which the applicant's allegation is based. The Electoral Court found that the Presidential election ballot paper, as designed by the Zimbabwe Electoral Commission, was in compliance with the law.

There was no appeal against the decision of the Electoral Court.

The design of the Presidential election ballot paper, having been found by the Electoral Court to be in accordance with the law, it could not give rise to a bona fide allegation of bias against the Zimbabwe Electoral Commission.

A ballot paper designed in accordance with the law cannot be said to give an unfair advantage in respect of voters to one candidate over another. The applicant should have stopped to reflect on what the founding affidavit contained lest he be accused of making frivolous and vexatious allegations against the Zimbabwe Electoral Commission.

Allegation that 21% of polling stations had no V11 Forms affixed on the outsides

Common sense and caution required that before the applicant made the bald allegation that the Zimbabwe Electoral Commission had failed to have affixed completed polling station returns on the outsides of 21% of the total polling stations on the polling day, he should have fact-checked the allegation.

The mere making of the allegation would, under normal circumstances, mean that the maker has identified and counted the polling stations affected. The applicant did not indicate at which polling stations the V11 Forms were not affixed on the outside. He did not say whether he had election agents stationed at such polling stations. If the applicant had election agents at every polling station, as he should have had, he did not say why no affidavits were deposed to by such election agents attesting to the fact that no V11 Forms were affixed outside their polling stations.

The process of voting at a polling station involves a number of clearly defined procedures with which a presiding officer is bound to comply. Each procedure relates to specific duties, the contents of which are acts the presiding officer must perform. Section 64(1)(c) of the Electoral Act provides that, after the counting of the votes in accordance with the procedure prescribed in section 63(1) of the Electoral Act, the presiding officer shall start completing the V11 Form. He or she is required to record on the V11 Form the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the count for each ballot box is shown on the return.

Section 64(1)(d) of the Electoral Act requires the presiding officer to display the completed V11 Form to those present and afford each candidate or his or her election agent the opportunity to subscribe their signatures thereto. The presiding officer is required to provide each candidate or his or her election agent with a copy of the completed V11 Form. Section 64(1)(e) of the Electoral Act then requires the presiding officer to affix a copy of the V11 Form on the outside of the polling station so that it is visible to the public. He or she is required to ensure that the V11 Form remains there so that all members of the public who wish to do so may inspect it and record its contents.

A few minutes of reflection by the applicant on the nature, content and purpose of the duties imposed on the presiding officer by the procedures prescribed under sections 64(1)(c), (d) and (e) would have dissuaded him from making the rather outlandish allegations against the Zimbabwe Electoral Commission under oath.

An applicant in motion proceedings ought to make out his or her full case in the founding papers. If he or she, as the applicant did, makes bald and unsubstantiated allegations his or her application cannot possibly succeed.

The applicant had election agents at the un-identified polling stations he alleged did not have completed V11 Forms affixed on the outside. The election agents would have been given completed V11 Forms. The applicant did not present the completed V11 Forms given to his election agents. If he had done so, he would have been in a position to contend that the V11 Forms that the Zimbabwe Electoral Commission had were different from the ones he had in his possession. If the applicant did not have election agents at the unidentified polling stations, how was he able to conclude that a failure to affix V11 Forms on the outside of polling stations occurred in 21% of the polling stations set up by the Zimbabwe Electoral Commission in the harmonised elections? The claim is, with respect, outrageous.

Verification of the Presidential election result

The allegation by the applicant that his election agents were not present during the verification of the Presidential result is false.

An e-mail was sent by the Zimbabwe Electoral Commission to all Presidential chief election agents, including that of the applicant, inviting them to come and take part in the verification of the Presidential election result. The twenty-fourth respondent (the Chairperson of the Zimbabwe Electoral Commission) averred, in the opposing affidavit, that she personally called, in a live ZBC broadcast, on all chief election agents for candidates in the Presidential election to come for the verification of the Presidential election result.

The acceptable evidence proved the fact that the applicant's election agents, Mr Morgan Komichi and Mr Jameson Timba, were present. Mr Komichi was the applicant's chief elections agent. Both men had full access to the room where verification of the result was conducted.

The twenty-fourth respondent (the Chairperson of the Zimbabwe Electoral Commission) stated that the two requested and were furnished with V11 and V23 Forms for them to check and verify any issues that they wished to verify during the verification process.

Over the two-day period of the verification of the Presidential election result, the applicant's election agents had unlimited access to all the original V11 and V23 Forms relating to the Presidential election. They had the opportunity, at their own discretion, to make notes from those V11 and V23 Forms. They had the opportunity to raise any queries with the Chief Elections Officer where they had problems with information that was on the V11 and V23 Forms being used by the Zimbabwe Electoral Commission when compared with what they had collected from their election agents from various polling stations.

It was not correct to say that the verification of the Presidential election result was done under a cloud of secrecy. The applicant's Chief Election Agent initially attended and observed the initial stages of the verification but later left and became un-cooperative. He refused to sign the form showing the number of votes received by each candidate. He disrupted the proceedings in which the Presidential election result was declared.

In paragraph 5.1 of the founding affidavit, the applicant admitted that his Chief Elections Agent and Mr Timba were invited to attend and witness the verification of the constituency results. He admitted that the two men attended and took part in the verification process that went on for two days.

It is clear from the evidence that the attitude of the applicant's Chief Election Agent was that he would co-operate with the Chief Elections Officer only if the applicant won the Presidential election. The only reasonable inference to draw from the conduct of the applicant's Chief Election Agent is that his deplorable behaviour was pre-meditated.

By withdrawing from the process of the verification of the Presidential election result, when they realised that the applicant had lost the election, his election agents thought that the process would not continue to completion without their presence.

They were wrong.

The provisions of section 110 of the Electoral Act are such that the absence of any candidate or his or her chief election agent does not stop the prescribed process from proceeding to its conclusion. An illustration can be found in the provisions of section 110(3(d) and section 110(3)(e) of the Electoral Act. The subsections require the Chief Elections Officer to act in the presence of those election agents as are present.

Section 110 of the Electoral Act does not therefore mandate that a declaration in terms of section 110(3)(f) shall only be done where the candidates' election agents have signed off on the result of the Presidential election. The purpose is to ensure that the process outlined in section 110 of the Electoral Act is not susceptible to being taken hostage by any of the candidates contesting the Presidential election.

It was also misleading for the applicant to accuse the Zimbabwe Electoral Commission of deliberately delaying the announcement of the Presidential election result when he knew that in terms of section 110(3)(h)(i) of the Electoral Act the Commission had five days within which to declare the Presidential election result.

The voting ended on 30 July 2018. The Presidential election result was declared on 3 August 2018. The applicant must have known that the Zimbabwe Electoral Commission had acted lawfully.

Stopping of counting of the Presidential election result

There was nothing placed before the Court to support the allegation by the applicant that the counting of votes at polling stations stopped in response to what he alleged were the results from polling stations showing him as leading in the Presidential election. Election agents did not file affidavits stating that the counting was stopped. No observer reports recording the occurrence of the event alleged by the applicant were made.

The only reasonable inference is that the counting of votes at polling stations across the country proceeded as prescribed by the Electoral Act, without any stoppages as alleged by the applicant.

Failure to produce V11 Forms

The applicant alleged that, at the close of voting at 19:00 hours on 30 July 2018, sample results in the form of completed V11 Forms were released. He said they were all over social media. According to the applicant, the results showed that he was well ahead of the first respondent in all the Provinces of the country. He said when it was realized that he was leading in the Presidential election, the polling station returns were not released until 31 July 2018. To buttress the allegation that the V11 Forms circulating in the social media showed him leading in the Presidential election, the applicant attached to the founding affidavit only five V11 Forms.

There was a total of 10,985 polling stations in operation during the 2018 harmonised elections. There are ten Provinces in Zimbabwe. That meant that at least five Provinces were not represented on the V11 Forms produced by the applicant. Five V11 Forms out of 10,985 polling stations was by no means representative of the pattern that the applicant alleged.

The samples of the V11 Forms produced by the applicant were meant to buttress the hypothetical postulation that he won the Presidential election. Where the actual data on the Presidential election was available and accessible, the hypothetical postulation was unnecessary.

The fact that the V11 Forms were sourced from social media raised doubt about their authenticity. Polling stations returns are obtainable in terms of the provisions of section 64(1)(d1) of the Electoral Act [Chapter 2:13].

The applicant ought to have produced authentic completed V11 Forms collected from his political party's election agents and compared what they established to the Presidential election result with the figures announced by the Zimbabwe Electoral Commission. He did not do so.

Mashonaland Central voting

The applicant claimed that there were 200,000 votes created in Mashonaland Central Province. He said less than 200,000 people voted in the Province, yet the Zimbabwe Electoral Commission announced votes in excess of 400,000. He said he based the conclusion that less than 200,000 people voted in Mashonaland Central Province on information emanating from a ZBC reporter, who said the Zimbabwe Electoral Commission had announced that at 17:30 hours 105,000 people had cast their votes.

The applicant did not state where he got the figure of 200,000 as the number of people who voted in Mashonaland Central Province. The Zimbabwe Electoral Commission proved that the Province has a total voter population of 531,984. With a voter turnout of 85.1% in the Presidential election, the number of votes cast in the Province would exceed 400,000.

The question whether more than 400,000 voters cast their votes in Mashonaland Central Province in the Presidential election could easily have been answered by consideration of the election residue. Without access to the evidence of the election residue, the applicant's allegations remained bald and unsubstantiated allegations.

Over-voting

The allegation by the applicant that there were more votes announced for some polling stations than the voters registered for the polling station was un-substantiated.

Every V11 Form has a ballot paper account. Immediately before the unsealing of the ballot boxes and commencement of counting, the presiding officer at every polling station accounts for the ballot papers received at the beginning of the poll.

The applicant did not put before the Court V11 Forms that showed higher numbers of counted ballots to those issued at the polling station. He did not place before the Court any affidavits from his election agents stating whether at certain polling stations the count yielded a higher number of cast ballots than those issued.

The Zimbabwe Electoral Commission proved that there were no polling stations where more people voted than appeared on the voters' roll for the polling station.

The allegation on over-voting was based on what the applicant described as G-series documents. The falsity of the nature of the information in the applicant's G-series was easy to expose.

The applicant's G-series alleged that a polling station at Mandara Primary School in Bikita West Constituency had 809 people who voted in the Presidential election out of a total registered voter population of 447. Contrary to the applicant's assertions, the V11 Forms in respect of Mandara Primary School polling station recorded that 371 people voted in the Presidential election.

The applicant's G-series alleged that at a polling station at Bikita Minerals Primary School in Bikita West Constituency 831 people voted in the Presidential election when the voter population was 341. Contrary to the applicant's assertions, the V11 Form for Bikita Minerals Primary School polling station recorded that 309 people voted in the Presidential election.

The applicant's G-series alleged that at a polling station at Nharira Primary School in Gutu North Constituency 536 people voted in the Presidential election out of a voter population of 271. Contrary to the applicant's assertions, the V11 Forms for Nharira Primary School polling station recorded that 236 people voted in the Presidential election.

The trend was the same in respect of polling stations in the G-series, which was produced as proof of the allegations of over voting. The conclusion by the Court was that the information contained in the documents produced as G-series was false.

Identical votes

The allegation by the applicant to the effect that identical figures of results in respect of polling stations can only be explained in terms of manipulation of votes proves nothing.

The actual returns from the polling stations concerned were available and accessible. They would have shown that identical results of votes cast at different polling stations were a real occurrence. In other words, there were polling stations that returned identical results.

To show that identical results do not have to be a result of manipulation, the Zimbabwe Electoral Commission produced copies of two V11 Forms, one for Mapengula Tent polling station in Tsholotsho North and one for Mashala Top Butiti Pre-school polling station in Hwange East. Each V11 Form for the respective polling station was signed by election agents for the Presidential election candidates.

The V11 Forms showed that at each polling station the applicant received 86 votes against the first respondent who received 52 votes. If the applicant's allegation of identical results being products of manipulation, the Zimbabwe Electoral Commission would have manipulated the results of the Presidential election at the two polling stations in his favour.

THE PRESIDENTIAL ELECTION RESULT AND THE ADMISSION BY THE ZIMBABWE ELECTORAL COMMISSION

On 3 August 2018, the Zimbabwe Electoral Commission announced that the first respondent had received more than half of the votes cast in the Presidential election. The first respondent was declared to be duly elected as President of the Republic of Zimbabwe in terms of section 110(3)(f)(ii) of the Electoral Act [Chapter 2:13].

The declaration, as set out in the relevant provisions of the law, is a legal event. It follows upon any candidate reaching the 50% plus one vote threshold. Whether a candidate has received 50% plus one vote of the number of votes cast in the Presidential election is a question of fact.

The declaration can only be changed or altered by the Court in terms of section 110(3)(i) of the Electoral Act, 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 the admission that the figures initially announced had mathematical errors. 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 Presidential election.

The applicant alleged that there were discrepancies between the Presidential election result, as announced by the Zimbabwe Electoral Commission, and that arrived at by adding figures on the V11 and V23 Forms.

The calculations by the applicant were wrong. They were based on an incorrect figure of voter turnout. The total voter population for the purposes of the 2018 harmonised elections was 5,695,936. It was not 5,659,583 as indicated by the applicant.

The previously announced number on the polling day had been 5,695,706. The figure was adjusted by the addition of 230 voters who had been registered during a BVR registration exercise in Chegutu, Mashonaland West Province, prior to the cut-off date for the registration of voters for the 2018 harmonised elections. The number of 230 voters had not been uploaded into the database.

The final voter turnout in the Presidential election was 85.1%. When applied to the total voter population, it equated to 4,847,233. The results of the Presidential election announced by the Zimbabwe Electoral Commission totalled 4,847,996. There was a variance of 763 votes from the actual 85.1%. The variance was accounted for by mathematical errors in the data capturing exercise.

The computation by the applicant was based on a voter turnout of 72%. This did not yield a correct result, reflective of what happened on the polling day. As a result of the use of 72% as the final voter turnout in the Presidential election, instead of the correct 85.1%, the applicant arrived at the figure of 700,000 votes that he alleged were unaccounted for.

Using 72% of the total voter population to calculate the voter turnout, the applicant arrived at the figure of 4,032,000. By necessary implication, the figure would include votes that would, during the counting process, be deemed to be invalid for one reason or another. The applicant then gave the figure of 4,775,640 as votes announced by the Zimbabwe Electoral Commission.

The figures of 4,032,000, on the one hand, and 4,775,640, on the other, represented two different things. The former figure included all votes, whether valid or invalid. The latter figure would have represented valid votes only. The applicant proceeded to subtract, in turn, the elements of the latter category of votes from the former category of votes. As a result of the use of 72% as the final voter turnout in the Presidential election instead of the correct voter turnout of 85.1%, the applicant fell into error and made wrong conclusions on figures that he brought to Court as the basis of his argument. The error by the applicant in the computation of the total voter turnout, amongst other errors, would have caused him to come up with the variance of the figure of 700,000. He did not take into account in the computation the difference between the two sets of votes he had subtracted from each other.

The applicant's computation did not establish the 700,000 allegedly un-accounted for votes.

In terms of the applicant's G-series documents, he identified a variation in the result of the Presidential election of 0.1%. That gave him 44.4% of the total votes cast. The first respondent received 50.7%. The variation did not affect the outcome of the Presidential election. The first respondent still passed the statutory threshold of 50% plus one vote.

Any mathematical error that may have occurred in the process of verification of the Presidential election result, in terms of section 110 of the Electoral Act, was not gross or sufficient to overturn the outcome of the election. It cannot be a ground for the vacation of the declaration made in terms of section 110(3)(f)(ii) of the Electoral Act.

It is important to understand what the result of the Presidential election is within the meaning of section 93(1) of the Constitution and section 110(3)(f)(ii) of the Electoral Act. The result of the Presidential election is the declaration of a winner having received more than half of the votes cast in the election. The winner only has to receive 50% plus one vote of the number of votes cast in the Presidential election. Any votes after that point have no bearing on the question whether or not one must be declared the winner of the Presidential election.

The correction of the mathematical errors in the number of the votes announced as having been received by the first respondent by the Zimbabwe Electoral Commission had no effect at all on the result of the Presidential election and the declaration of the first respondent to be duly elected as President of the Republic of Zimbabwe.

An error in counting and amendment of figures is envisaged by the Electoral Act itself, which makes the provisions of section 110 subject to those of section 67A. Section 67A(4) of the Electoral Act provides that the Zimbabwe Electoral Commission may, on its own initiative, order a recount of votes in any polling stations if it considers there are reasonable grounds for believing that the alleged miscount of votes occurred and that, if it did occur, it would have affected the result of the Presidential election. The law allows for the adjustment - where it is found necessary to do so.

If the applicant was aggrieved by the verification, he should have utilised the remedies availed to him by statute to get the relevant evidence. The applicant needed more evidence than just the mere admission by the Zimbabwe Electoral Commission of the mathematical inaccuracy of the figures to show that the result was affected.

ESSENCE OF THE APPLICANT'S CASE

The applicant did not so much rely on the allegation that the Presidential election was not free, fair and credible on the basis of the generalised and unproved allegations he made against the Zimbabwe Electoral Commission. The essence of the case was that the applicant was the winner of the Presidential election.

That is the allegation he failed to prove.

CONCLUSION

In the final analysis, the Court found that the applicant failed to place before it clear, sufficient, direct and credible evidence to prove the irregularities he levelled against the Zimbabwe Electoral Commission. He also failed to prove the allegation of electoral malpractices he levelled against the first respondent. 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 the alleged irregularities affected the result of the Presidential election.

It is an internationally accepted principle of election disputes that an election is not set aside 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 laws governing the conduct of the elections it would have reflected the will of the people. An election can only be set aside if it is proved, on a balance of probabilities, that the irregularities, shown by clear and credible evidence, to have been committed by officers of the body charged with the duty to conduct the election in accordance with the law of elections, affected the result.

It is not for a 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 as their will.