Final Analysis Before Tomorrow’s Constitutional Court Hearing

Zimbabwe will be the centre of the world tomorrow as all eyes will be fixed on its Constitutional Court as it presides over MDCA Presidential Candidate Nelson Chamisa’s Historic Petition.

I have now had the opportunity to read all the relevant documents that will be before the court tomorrow. There can be no doubt that this is an extremely complex case and all the respective Counsel in the matter have done a tremendous job to set out their client’s respective positions.

It will be borne in mind that I have previously provided an analysis of the case, albeit at an earlier stage before all the documentary evidence in the case had come out into the public domain.

The case will turn on the following key issues:
i. Preliminary matters relating to Procedural Issues.
ii. The respective overall merits of the Petition based on the evidence that was placed before the court.
iii. The legal-politico realities.

1. In respect of point number i., it is now widely known that President ED & ZEC are both arguing that there is no valid Petition before the court.

2. They are basing this on the fact that, i. the Petition was filed out of time; ii. there was no proper service, which should have been done by the Sheriff in line with the requirements of the Rules; iii. ZEC was served with an incomplete bundle, which saw documents being filed in “instalments”; iv. the Petition does not comply with certain legal requirements, such as completing the correct form in the correct manner; v. Chamisa should not be entertained by the Court because he has shown contempt towards the Judiciary by making disparaging remarks towards it, particularly during the campaign season, including claiming that he did not have confidence in it, and, finally; vi. that what was argued in the Petition does not conform to the requirements of the provision under which such a Petition is made.

3. In response to the above, the Petitioner, Chamisa contends that: i. the Petition was not filed out of time; ii. the Respondent, ED, filed his Opposing Affidavit on the 15th of August out of time; iii. there were extra-judicial attempts which were made to frustrate service of the Petition within the deadline and finally, that the Petition is properly before the Court and the law (decided cases & Rules) makes it clear that the case should proceed on merits and not be defeated on technicalities.

4. In respect of point number ii. pertaining to merits, it is now widely known that the Chief Justice has ruled that certain evidence which was left by the Petitioner, Chamisa’s legal team at the Registrar’s Office, presumably as an attempt to file it, should not be admitted. This includes a considerable amount of significant evidence. The CJ has concluded that this was because it was served out of time.

5. The above effectively means that the CJ has already formed an opinion concerning timelines. This is because, as the letter communicating this is dated / stamped the 15th of August, had he been minded to read the time provision as meaning that it was “working”, rather than “calendar” days, then it follows that the evidence would have been admissible as it would have still been in time.

6. As the Procedural Issues will be heard first, the above naturally makes ominous reading for the Petitioner. This is because, a combination of a restriction of the evidence that he is relying upon, as well as ZEC’s contention that it was not served with a proper Petition and a completed bundle effectively means that the Petitioner is starting from a very difficult position. Whereas it would have been possible to “cure” arguments relating to late service given that the Respondent also appears to have served the Opposing Affidavit late, the question of the incomplete documents which ZEC claims to have received are problematic as the latter proceeded to defend the Petition using this as a pretext of claiming ignorance / lack of knowledge of some of the key issues raised in the Petition.

7. The CJ’s decision to limit / restrict Chamisa’s evidence effectively means that the proceedings will be proceeding tomorrow with ZEC still claiming ignorance and still without Chamisa’s full bundle. There is simply no way that a full hearing can be conducted on the substantive merits of the case on this basis. This for me is a tell-tale indication that technicalities will likely carry the day.

8. Still on merits, one of the most striking points to ponder in this case is that none of the parties has tendered before the court a full range of all the V11 & V23 Forms that were used in the election. Chamisa and his legal team have applied to the court to compel ZEC to do this. This is a shocking indictment of ZEC’s conduct in this election. This is because, it is a public body and is constitutionally mandated to prove to the court and to Zimbabweans that it conducted the election in a transparent manner. It owes a duty of candour / full disclosure to the court to provide not only all the materials that were used during the election, but to also show the verification process that it used, which is another responsibility that is placed on it by the Constitution. As it ran the entire election process, it follows that it is reasonable to expect it to have full custody of all such materials. Outside of chicanery, there is simply no reasonable basis upon which it can escape responsibility in relation to this.

9. It has been suggested by others that the above information needed to be “requested” from ZEC. I totally disagree. It clearly has such a role to act “mero motu” or on its own accord arising from the specific Constitutional obligations that it has. By failing to do this ZEC has rightly left itself open to charges that this is a deliberate act calculated to obfuscate any attempts to subject its conduct to rigorous scrutiny which by extension means that it is fearful of being exposed. Given that ZEC has already admitted to making vote tallying mistakes only after being challenged in this Petition, it follows that the credibility of the results that it announced can rightly be questioned.

10. By extension, it follows that President ED’s very strange & shocking decision to only file a limited number of the forms while keeping the rest “tucked away” when these could have easily exposed Chamisa’s Petition as being baseless smirks of collusion and also rightly leaves him exposed to charges of seeking to use the cover of “darkness” to avoid scrutiny of his actual vote tally. Surely it would be a scandal of historic proportions if he was to defeat the Petition on technicalities, without the court being afforded the opportunity to fully examine the verification process that ZEC used to reach its finally tally.

11. I will go further and boldly assert that, by taking this approach, ED is practising self-immolation, as this will rightly deal a blow to his desperate and long running attempt to garner legitimacy. If such a development was to materialise, given the scale and breadth of Chamisa’s allegations and some of the evidence that was attached in his Petition, the world would view such a decision with scorn, ridicule and incredulity. He would simply not be accepted as a legitimate leader by a significant portion of the country and the international community and Zimbabwe would be risking being a pariah again. Furthermore, such an approach is likely to leave the country brooding, divided and facing the risk of an implosion, meaning that politics and rancour would dominate any attempt to forge ahead with the economic agenda. Zimbabwe would simply be bogged down in politics for the next 5 or so years.

12. While it is ordinarily true that Chamisa would also have been expected to file all the returns of his V11 & V23 Forms, the fact that he is claiming that his Polling Agents have been systematically targeted since 01 August 2018, that some of them were forced to sign them, the shameful raid on Harvest House after the 01st of August 2018 and the well publicised events of that day and the Bronte Hotel episode followed by selective application of the law through the arrest of opposition figures only and dead silence in holding the Army to account simply means that his account is likely to be more accepted by the wider world in respect of this.

13. In my view, Chigumba’s figures simply do not add up and the Petition is well-founded. If had not been, both Chigumba & ED would have defeated it in a transparent manner, through the provision of all of the V11 & 23 Forms, and not through technicalities. It’s been handicapped by a combination of what appears to be chicanery by the system and miscalculations by Chamisa and his team in not anticipating such and taking putative / pre-emptive steps. It is simply the case that when you are challenging such a regime which is obsessed with controlling all facets of the landscape, you do not leave anything to chance. You want to start from a position where everything is perfect and you have covered every angle of every item under your control, procedurally or otherwise. Leaving everything to the last day and the last few working hours of the day was simply way too risky a manoeuvre. The apparent service of an incomplete bundle on Chigumba being the coup de grace.

14. As things stand, it has to be accepted that ED has rightly taken the “low hanging fruits” that Chamisa has presented him with. This is politics and not a tickling contest. It has to be further accepted that there are now genuine, cogent, procedural grounds for the Judiciary to make a decision against the Petition predicated on reasons which can not be objectively attributed to any real or perceived bias against Chamisa and the MDCA. The situation could have been so different.

15. At this stage, given the above points, it follows that “legal politics” becomes somewhat redundant as a factor as these tend to only come into the play when there are no genuine, objective reasons for dismissing a case. In other words, where the bench is clearly presented with credible, convincing reasons to dismiss a politically sensitive case, it tends to be grateful as this allows it to defend the decision jurisprudentially without being tainted with allegations of bias.

16. I must make it clear that this is not a criticism of Chamisa and his legal team. The reality is that without an intimate knowledge of what him, his legal team, Polling Agents, etc went through / experienced from 01 August 2018 onwards, from escaping the clutches of a rampant Army, collating the evidence from across the country, including from Polling Agents in hiding whilst keeping it secure, dealing with successive raids at Harvest House, the Party HQ, addressing world leaders, Press Conferences, putting the Legal Team together – just the whole act of feeling under siege – it becomes difficult to understand the scale of the challenge that him and his team were facing to file the Petition.

Conclusion

As previously stated, I just think that too much is at stake for the court to be generous in interpreting the procedural challenges in Chamisa’s favour. The CJ’s decision to limit / exclude evidence which he says was served late is a useful indicator of the direction the wind will blow in tomorrow’s historic court challenge. We have already seen the shocking opening salvo in ED’s Counsel’s Heads of Argument which alluded to “consequences”, a clearly ominous warning to the Judiciary concerning what is at stake. The Judiciary is not naive. It’s got a long memory and fully knows the reality of our legal and political environment. We have also read from those Heads of Argument, ZEC and ED’s Opposing Affidavits of the calculated attempt to whip the Judiciary into a hostile frame of mind against Chamisa based on his previous political utterances. In fact, they have gone as far as arguing that Chamisa should not be granted a right of audience before the court, a clearly shocking and preposterous development which smirks of desperation and would risk chaos and implosion.

Source: Brighton Mutebuka