Daniel Nemukuyu and Fidelis Munyoro
YOUTHFUL Zimbabwe Electoral Commission (ZEC) lawyer Mr Tawanda Kanengoni yesterday stole the show at the Constitutional Court (Concourt) with his impressive arguments that crushed the allegations MDC-Alliance leader Mr Nelson Chamisa relied on in his application challenging President Mnangagwa’s win in the July 30 harmonised elections.
The soft-spoken Mr Kanengoni (34), who is a senior partner with Nyika, Kanengoni Legal Practitioners, remained calm and composed despite a barrage of questions from the Bench, while making his points with so much clarity.
Mr Kanengoni demonstrated to the court the imprecision of Mr Chamisa’s allegations in the main challenge and the correlative lack of evidence to substantiate his claims and consequently his inability to discharge his onus as defined by the law.
He debunked the statistical evidence alluded to by Mr Chamisa in his founding papers and proved there were no mathematical errors made by ZEC sufficient to change the results of the presidential poll.
Mr Kanengoni told the court that Mr Chamisa had no evidence to buttress his rigging claims, saying the figures he sought to rely on in the application were just plucked from nowhere.
“Application before you is so deficient of evidence,” he said.
“It is deficient of particularity. The figures do not justify what applicant claims. In fact, there is no evidence before this court.”
Advocate Thabani Mpofu, who was representing Mr Chamisa, sought to rely on the mathematical calculations, arguing that at least 67 000 votes were unjustifiably awarded to President Mnangagwa.
Adv Mpofu argued that at least 40 000 teachers, who were on ZEC duties, were denied the right to vote.
He also argued that ZEC was now continuously changing its results, a development he said compromised the credibility of the electoral body.
He questioned the number of people assisted to vote, saying most of them could have been coerced to seek assistance.
But Mr Kanengoni said the changes in figures made by ZEC so far were so insignificant they were due to clerical errors.
“The entire variance in the figures represents 0,1 percent and that does not change the validity of the declaration made,” he said. “The declaration remains valid.”
Mr Kanengoni said the errors were only discovered when ZEC conducted an investigation into its figures in preparation for a response to the petition.
“When we were served with the papers, we read the allegations and launched an investigation to the claims,” he said. “That is when we discovered the clerical errors.”
Mr Kanengoni questioned the source of the figure of 40 000 teachers who are said to have been denied the right to vote.
He argued that the figures were just thrown into the court papers without evidence.
“There is no evidence that the said 40 000 were registered voters,” he said. “Even if the 40 000 were to be given an opportunity to vote, no one knows who they were going to vote for. The figures were simply thrown from nowhere.”
Mr Kanengoni said none of the teachers ever complained of being denied the right to vote.
“ZEC made arrangements for all the teachers to vote, but some made a free choice not to vote and in terms of the Constitution, no one is forced to vote,” he said.
He argued that ZEC did all that it could to ensure those who wanted to vote were taken to their wards to cast the ballot.
On assisted voters, Mr Kanengoni said ZEC’s duty was to ensure those who required assistance to vote were helped.
“ZEC does not seek to inquire as to why a voter asks to be assisted to vote,” he said. “We only facilitate the assistance of those who seek help. In any event, the allegation is not linked to the result. There is no affidavit from any voter alleging coercion.”
Mr Kanengoni further argued that Mr Chamisa’s calculations were based on wrong voter population and wrong voter turnout.
The youthful lawyer also attacked the analysis of Dr Otumba Edgar Ooku on the figures on V11s provided to him by Mr Chamisa’s lawyers.
“It is not stated whether the V11s related to all polling stations operating during the disputed elections or to those where applicant had polling agents and thus access to V11 forms,” he said. “The said V11s used in the analysis are also not made available together with the application as evidence. They form part of the absent evidence under discussion here.
“The figures are not attributed to either the applicant (Chamisa) or the first respondent (President Mnangagwa). They are also presented as postulations and not hard facts.”
Mr Kanengoni told the court that Mr Chamisa’s claims that the absence of a tally between parliamentary and presidential votes found no clear and precise expression in his founding despositions.
Mr Chamisa, he said, made bald and bare allegation that the votes for both elections must match, but fails to account for variant voter behaviour that was shown by ZEC and Justice Chigumba.
Mr Kanengoni was assisted by Mr Charles Nyika.