By Brighton Mutebuka
1. It was a marathon, riveting, historic, unforgettable process. The world of most Zimbabweans in Zimbabwe and abroad ground almost to a standstill as they were glued to their TV sets & other electronic devices to follow the process.
2. I am absolutely proud of all my legal colleagues and the wonderful exhibition of the legal talent and skills that they showed not only to Zimbabweans, but to the rest of the world following the proceedings as well. Given their respective ages, the future can only be bright.
3. I feel privileged that I studied my Law & practised in Zimbabwe first, and so was able to follow all the proceedings without any difficulty. I also feel as if I missed out in playing a pivotal part in the proceedings. The terraces were too much for me. I was lucky enough to see George Bizos, Mandela’s Lawyer during Morgan Tsvangirai’s treason trial in 2003 at the High Court in Harare and it’s a moment that has stayed with me since and perhaps will for the rest of my days.
4. Returning to the matter, the Constitutional Court deftly chose to entertain all matters together, rather than separating them and hearing the Preliminary Points first or “Points In Limine” as is referred to formally. This meant that the procedural and substantive aspects of the case were heard together and there would not be an “anti-climatic” element to the proceedings caused by an adverse decision dismissing the Petition on procedural grounds.
5. Without a shadow of doubt, the unheralded ZEC Lawyer, Tawanda Kanengoni was the unlikely star of the show. He was understated, deliberately slow, methodical, articulate with a just above whispering voice and very thorough.
6. He led a valiant effort in pushing back and basically decimated significant chunks of Chamisa’s case, moving point by point to address each and every challenge head on, whilst demystifying significant swathes of areas that were in contention.
7. For me Chamisa’s Lawyer, Advocate Thabani Mpofu had a spectacular first half of the proceedings and a difficult second period. In my opinion, he came under sustained attack unfairly some might say, during the first half of the proceedings in an act that was led by CJ Malaba.
8. He was confident almost to the point of arrogance, articulate and authoritative in his submissions. He might have sold himself short throughout the rest of the proceedings by constantly asking for a shorter amount of time than he actually needed but I am sure he will learn from this.
9. The Judges were pretty much what I had warned they would be, very resistant and conservative in interpreting legal provisions. For me a key part of the proceedings was the exchange that they had with Thabani, Chamisa’s lead Counsel concerning the absence of the V11 Forms & the failure to ask for the “residue” or ballot papers to be unsealed before the court in their Petition.
10. ED’s Lawyers, Advocate Lewis Uriri and Magwaliba also did a sterling job. The former was authoritative on the law, especially pertaining to technical aspects and case law. The latter’s delivery was impeccable and he also addressed all the pertinent points with clarity. They were ready and met the moment.
11. I think the CJ did not do himself any favours by repeatedly interfering during Advocate Thabani Mpofu’s submissions even on petty and irrelevant matters, whilst no such discourtesy was visited upon ED’s Team. Don’t get me wrong, Judges are entitled to make polite enquiries during submissions but care must be taken to ensure that this is not excessive and does not create a perception of bias to members of the public. He needed to balance out the approach he made in Thabani’s case to ED’s case by asking similar, prodding, pertinent questions but he did not. In fact, Patel, Makarau & Gwaunza did a better job of this. As an example, he did not pose any pertinent questions to ZEC relating to why it had a separate Voters Roll to Chamisa & other Respondents and the failure to file all V11 & V23 before the court, a question that was posed by Makarau, as I will show below.
13. This related to Team Chamisa’s contention concerning exact voting returns at certain Polling Stations. Justice Makarau asked how many V11s ZEC had filed to vitiate Chamisa’s contention and he replied that only 2 had been submitted, despite the fact that Chamisa’s team had referred to anomalies in at least 11. The very obvious question to be asked is why only 2 when the matter was in contention and you have got access to all of them? No convincing response was given in relation to this.
14. There was no similar convincing response that was given when it came to the issue of the 40 000 that were disenfranchised. ZEC’s response was trained on challenging the numbers and whether or not they were registered to vote, something that it could have addressed, and not on the irregularity itself of blatantly ignoring a Court Order and standing Statutes while denying a constituency associated with the opposition an opportunity to vote.
15. In the end, this was always going to be a tall order for Chamisa to surmount. As previously opined, I cannot see a successful outcome for him. In my view, there are reasonable grounds to conclude that ZEC & President ED colluded in limiting the number of V11 & V23 Forms that were filed before the court as a means of defeating Chamisa’s Petition. There was a strategic decision undertaken to disclose as little as was possible pursuant to making the situation as opaque as was possible to make rigorous scrutiny virtually impossible. I think they were both aware that Team Chamisa did not have such returns.
16. The case will now NOT turn on either the Procedural or Substantive aspects. I think they will decide in ED’s favour on both accounts. The way I see it, Chamisa and his team have not been able to furnish the court with a credible reason pertaining to why they were unable to provide all their V11 & V23 Forms to the court. If it was violence / intimidation by ZANU PF or both, they needed to have gone out of their way to provide Affidavits from their Polling Agents addressing this. This is absolutely crucial, as Tawanda Kanengoni, ZEC’s Lawyer, submitted some V11 Forms directly contradicting Team Chamisa’s claims, which forms were said to have been properly signed by MDC Polling Agents. There was no come back on this, and remember that the CJ, Patel, Makarau, Garwe, Gwaunza, Hlatshwayo all took turns to press on this point.
It has been a privilege to follow these proceedings. Chamisa and his team need to take stock and wait for the decision. Stranger things have happened but, realistically speaking for me, I see the court clarifying the computation of time riddle and providing future guidance about this whilst ruling in favour of ED but going further to consider the substantive merits of the matter and also ruling this in ED’s favour on the basis of the absence of primary evidence. Although there are still very serious concerns pertaining to ZEC’s conduct, I expect the court to conclude that these are concerning but were not serious enough to affect the rest of the Election. As I previously stated, whether in the law or in the politics, it is not easy to set aside a declaration in favour of an incumbent in Africa. Judges have got a subconscious approach to the evidence which raises the bar in terms of evidence and submissions. There were many times that Advocate Thabani Mpofu made impressive submissions but which did not penetrate the bench’s subconscious or find favour with them. That’s because of the long memory I referred to yesterday. It’s also why I had suggested that Team Chamisa needed to concentrate on a mathematical or scientific approach predicated on the V11 & V23 Forms & avoid getting bogged down in politics as they would meet resistance there. To their credit this they tried to do but a combination of the restrictions that they faced on the evidence that they could submit and a lack of their own V11 & V23 Forms means that they were unable to lead the matter to its logical conclusion.