The hearing of the petition over the presidential election will commence at the Constitutional Court on 22 August 2018. Nelson Chamisa of the MDC Alliance is the aggrieved party with the Zimbabwe Electoral Commission and the declared winner Emmerson Mnangagwa as the principal respondents. Other respondents cited in the petition, namely Dr Noah Manyika, Daniel Shumba and Elton Mangoma also filed their papers. This is a compressed synopsis of the case before the Court.
Law, not politics
While the matter is highly political, the Court will only be concerned with the legal issues. The Court has no competence to deal with political questions. As such, the consequences of success or failure of the petition are the least of the Court’s considerations. Zimbabwean judges are not the first to face a matter that is so politically charged. Within the region, the courts in Ghana, Zambia, Uganda and Kenya have in recent years had to deal with similar petitions. History was made in Kenya last year when its Supreme Court set aside the result of the presidential election.
Back in 2013, Zimbabwe’s Constitutional Court dealt with a similar petition, although that was low key and the stakes had been significantly reduced since the petitioner, Morgan Tsvangirai, had withdrawn his petition. Still, the Court decided in its wisdom that technicalities would not stand in the way and went on to deliver judgment on the matter.
Judges in the United Kingdom were similarly faced with a politically-charged matter last year when it was called upon to decide the Brexit case. The words of Lord Neuberger, the UK’s top judge at the time are poignant. “The justices of the court are of course aware of the strong feelings associated with the many wider political questions surrounding the United Kingdom’s departure from the European Union. However, as will be apparent from the arguments before us, those wider political arguments are not the subject of the appeal. This appeal is concerned with legal issues and as judges, our duty is to consider those issues impartially and to decide the case according to the law. That is what we shall do.”
Likewise, the Zimbabwean judges have to put aside the political considerations and focus on the legal issues presented in the matter. Political questions are for the politicians to worry about. Still, the weight of the matter on the shoulders of the judges cannot be overstated. The election is a core part of the democratic process and in their wisdom, the people of Zimbabwe entrusted their judges to assist them in resolving disputes arising from its conduct. It is a responsibility that must be discharged judiciously and with the transparency and fairness of the highest degree. Nothing can be left to speculation or doubt – all issues deserve the fullest consideration.
The parties' positions
What then are the parties arguing in this historic case? Hundreds of pages have been filed and many arguments, both technical and substantive have been advanced by the respective parties, each reflecting the seriousness with which the parties attach to the matter. This, after all, is a matter upon which the conferring of political authority and consequently, the legality and legitimacy of government, rest.
First, Chamisa is challenging the conduct of the election process, arguing that it did not comply with the Constitution and the Electoral Law. He advances various grounds in an effort to demonstrate that the ZEC failed to conduct the election in accordance with the law. Among these violations are the failure to provide the voters roll used in the election, non-compliance with vote counting procedures, abuse of state resources, abuse of traditional leaders, state media bias, etc. He argues that non-compliance on any or all of these grounds invalidates the election. The respondents dispute this assertion, arguing that there was sufficient compliance with electoral rules and that Chamisa has not provided evidence to support his claims.
The second principal ground is that elections results presented by ZEC do not represent a true reflection of voters’ choices at the election. This argument is based on mathematical/statistical grounds. At the core of this is that Mnangagwa was declared the winner by a slender margin – 0.8% above the threshold that would otherwise necessitate a run-off election. He argues that there were serious irregularities in the counting and tallying of votes the result of which is an outcome that does not reflect how people voted. Chamisa raises various issues including discrepancies in results that were announced publicly and the actual results that were published, unexplained discrepancies in presidential and parliamentary votes when turnout should be the same and a number of other discrepancies.
Chamisa’s argument is that these discrepancies gave Mnangagwa an unfair advantage and disadvantaged him. ZEC has in turn admitted to the discrepancies but puts them down to “clerical errors”. Chamisa argues that these discrepancies cannot be explained as random or clerical errors because, in his view, they reveal a suspicious pattern that shows deliberate manipulation. Overall, Chamisa is arguing that these ZEC failings affect the credibility and integrity of the election process. Mnangagwa and ZEC dispute this, arguing that there is not enough evidence to prove the claims. They have submitted their own expert evidence to challenge Chamisa’s claims.
If it goes that distance, the Court will have to delve into the world of mathematics and statistics as it tries to untangle this dispute. The experts will be challenged and interrogated to determine the validity of their evidence. It is hard to see how this can be done without calling them to the stand to submit to examination and cross-examination since there are serious disputes of opinions. Judges are not trained in mathematics or statistics and it will need help. After all, that is the mandate of experts – to assist the Court in the decision-making process.
Violation of rights and freedoms
The third argument is that ZEC’s failings in the conduct of the electoral process constitute a violation of fundamental rights and freedoms guaranteed by the Constitution. This brings a human rights angle to the dispute. Therefore, while this is a section 93 petition, the Court will be called upon to deal with the fundamental rights and freedoms question. The Constitution demands everyone, including public institutions and the Courts to protect fundamental rights and freedoms.
Apart from the substantive defences ZEC and Mnangagwa have also raised preliminary and technical issues concerning the filing of the application. The principal argument by both is that there is, in fact, no valid petition before the court. This, they argue, is on account of defects in the filing and service of the application. They also argue that Chamisa has not advanced enough evidence in his founding case for the Court to assume jurisdiction in the matter. In other words, they argue that there is no case before the Court.
They argue that Chamisa did not file and serve the documents within the 7-day deadline required by the Constitution and rules of court. Chamisa denies this and argues that the Sheriff was given instructions to serve the documents and had ample time to do so. It is worth noting that both ZANU PF and ZEC were unable to serve their responses by the 3-day deadline on Monday 13th August because the courts were closed due to a public holiday.
There is obviously a dispute of facts and interpretation of the law as to the counting of periods within which certain things were to be done. Although the Court refused to accept Mnangagwa’s documents because it was a public holiday, it went on to order Chamisa to submit his answering papers and heads of argument on a weekend. Are weekends and public holidays to be taken into account in counting the days? This is an issue which will need determination by the Court. Mnangagwa and ZEC also raise further technical objections, such as that the petition was incomplete, and that it was, in any event, abandoned for want of satisfying certain requirements.
One more looming battle from a technical point of view seems to be over the admissibility of evidence submitted by the parties. An issue addressed by both sides related to expert evidence which has been tendered by experts chosen by both. The validity and admissibility of this evidence will have to be determined. Indeed, it will be necessary to interrogate these experts and their evidence. Clearly, resolution of the substantive issues raised in this case will turn on the evidence submitted by the parties and any decision on the admissibility or denial of certain evidence will have a serious bearing on the outcome of the case.
Mnangagwa is also arguing that Chamisa scandalised the Court because of comments made during the election campaign. He must cleanse himself before he can be heard, Mnangagwa avers. The framers of the Constitution understood the need to ensure that technicalities should not stand in the way of a case where fundamental rights violations are concerned. Mnangagwa argues that those constitutional provisions do not apply because this is not a case under the declaration of rights.
The Court will have to deal with these technicalities at the preliminary stages of the case and this is an arena where the lawyers will do heavy battle, drawing upon rules of procedure, evidence and precedent. Indeed, this is an area where the lawyers will earn their fees. The entire matter could stand or fall on technical grounds at this preliminary stage. If that happens, the Court would have avoided going into the merits of the election dispute. It remains to be seen whether the matter could be disposed of entirely on technicalities.
Burden of proof
Another issue that is likely to occupy the Court is the question of burden of proof. Lawyers for Mnangagwa insist that the burden of proof is beyond a reasonable doubt. This is an issue that also concerned the Kenyan Supreme Court in a similar presidential petition last year. The Court held that the burden of proof is above a balance of probabilities but below reasonable doubt except for specific cases where criminal conduct is alleged. It’s likely there will be a lot of arguments over this issue before the Court delves into the merits of the case.
Mnangagwa is also asking the Court to strike out and disregard the submissions of co-respondents who were also candidates in the election. These are the submissions made by Dr Noah Manyika, Daniel Shumba and Elton Mangoma made submissions in response to Chamisa’s petition. They all generally support Chamisa’s petition. Mnangagwa, who had initially believed all other candidates were happy with the election outcome now wants their submissions to be disregarded on technical grounds. They are petitions disguised as opposing papers, Mnangagwa and ZEC argue and they must be disregarded since they were submitted beyond the 7-day limit. These co-respondents argue that they have a constitutional right to be heard. The Court will have to make a decision on the status of these submissions before delving into the merits.
Test for setting aside an election
If the matter does get to the merits, an issue for the court will be over the test to be used for determining whether or not to set aside the outcome of the election. The dispute will revolve around section 177 of the Electoral Act which sets out requirements for setting aside an election. One part is that there must be non-compliance with the law and the second is that non-compliance must have an effect on the result. Should both of these two parts be proved for an election to be set aside or is it enough to prove one of them? One view is that it’s enough to prove that there was an irregularity which affected the validity of the election. Another is that irregularity must also have affected the result. It is likely that there will be a lot of legal contestation over this critical question.
At the end of the day, there are three critical parts in this matter. The first is interlocutory, where Chamisa is seeking access to evidence held by the ZEC on its servers. The second is preliminary, where technical objections raised by Mnangagwa and ZEC must be disposed of. It is possible that the matter could end at this stage, without delving into the merits. The third part is the merit-based analysis – the core of the matter - where the courts will weigh the substantive submissions and evidence before coming to a conclusion. This is a matter that comes once every 5 years and the anticipation for the matter to be resolved in its fullness cannot be overstated.
What can the Court do?
As has been stated in a previous BSR, the Court has very wide powers under section 93(4) of the Constitution.
First, the court can declare a winner.
Second, the Court can declare that the election is invalid in which case it must order a fresh election to be held within 60 days. This is the order that was granted by the Kenyan Supreme Court last year.
Third, the Court may make “any order as it considers just and appropriate”. This is broad discretion in the hands of the Court, whose only limitation is reasonableness and compliance with the Constitution. The Court can be as creative as possible as long as it is reasonable and in line with the Constitution. The significance of this discretion cannot be overstated.
A court can give judgement ex tempore (at the time). This means delivering judgment soon after the hearing. Alternatively, it may reserve judgment until a later stage. This allows judges to go away and deliberate before returning with their judgment. The only qualification, in this case, is that there are strict timelines within with the Court must decide the matter. Section 93 requires the Court to determine the matter within 14 days of the filing of the case. When exactly the 14 days expire will depend on how the Court counts the dates. As we saw earlier, there is a dispute as to the manner of counting days.
Does judgment have to be unanimous?
Court decisions are made on the basis of a simple majority. There is no need for unanimity. This is why the full bench which will hear and determine this matter consists of nine judges. The odd number ensures there can at the very minimum a 5-4 majority.
The papers are vast and voluminous. We have tried to focus on the main issues as they appear in the papers. This is not to say this is exhaustive. Consider this, instead, as the bare bones of the matter. We have tried as much as possible to remain descriptive and not to offer an opinion on the strength or weaknesses of the respective parties' positions. That is for the Court to decide.
Needless to say, the next couple of days present an historic moment for the Court. Nearly 4 weeks after Zimbabweans voted, it is now down to the nine men and women on the Constitutional Court bench. The eyes of Zimbabweans and many interested parties around the world will be glued on their every step and word tomorrow and probably for the next few days depending on how long this momentous case goes. I can only wish them the best as they execute this important constitutional mandate.