Tendai A Toto Correspondent
I HAVE followed up on the hearing of the election petition. Its determination is on August 24, 2018.
I noted that the Constitutional Court decided to hear technical arguments at the same time with the merits of the petition.
I commend the approach adopted as it curtailed on time spent in court.
It was also both good case management and the management of societal emotions.
My conclusion on the petition is that it fails.
I will not labour on comparative analyses of all submissions and legal arguments.
These are in the public domain and in any event, the Constitutional Court is placed better to provide judicial guidance and the required detailed analysis of what forms its court record.
I provide below the cursory basis of my earlier conclusion;
I noted that Zimbabwe Electoral Commission (ZEC) had a handful of allegations that it faced.
It, however, articulated its case in defence very well, confirming that Chamisa was relying on hearsay statements and rumour.
At the end of the hearing of the petition, it became apparent that Chamisa also relied on own imaginations “some real and reasonable ones”, but not backed up by direct evidence or admissible secondary evidence that is acceptable, reliable and dependable.
The very bottom line of fundamentals was for Chamisa to prove his case (the petition) beyond a reasonable doubt.
When credible and acceptable doubts are cast on the petition by the respondents, the petition no longer falls within the ambits and category of being unassailable and, therefore, not proven beyond a reasonable doubt.
The petition is bound to fail on that basis alone. This is in terms of rules of procedure, substantive law, the provisions of the Electoral Act and its regulations. The failure to prove fraud, gross irregularities and fundamental infringements of electoral laws can be conclusive irrespective of one or two aspects of the petition conceded by the respondents.
The aspects conceded are sufficiently and satisfactorily explained out by the respondents and such aspects not having the significance and materiality to effectively expose massive rigging, fraud and gross irregularities sufficient enough to influence the results of the vote or to alter the significant portion of President Mnangagwa’s votes to a percentage below the required winning vote of 50 percent plus 1 vote, the concessions made by ZEC, if any, only work to bind the confidence of the Constitutional Court.
It can also show respondent’s (ZEC’s) benevolence in opposing the petition and enough to dispel issues around bias, mala fides and candidness.
Apart from the unsubstantiated general rhetoric and efforts to expose the alleged multiple deficiencies of ZEC, I was not impressed by the evidential onus required and expected considering the hype and alarm that Chamisa had abundant and credible evidence.
Advocate Thabani Mpofu argued the petition to the best of his abilities, experience and skill, unfortunately without cogent and sufficient backing up evidence to score to the level expected, that of proving the case for the petitioner beyond a reasonable doubt.
Adv Mpofu acquitted himself well. He deserved his earnings in legal fees.
However, if I was the Constitutional Court, I would still dismiss the petition both on technical issues and on its merits. There was nothing placed before the Constitutional Court that shifted onus upon ZEC and President Mnangagwa in rebuttal.
The “alleged” overly publicised and advertised “damning evidence” that Chamisa said he had was not placed before the Constitutional Court.
Only available were statistical compilations from own and independent sources, not the official records of the election.
There was no convincing technical and scientific evidence on the figures that mattered forming the core of the petition.
Also the petitioner in his summary of facts, evidential material relied on the voters’ roll that was preliminary, which in fact was not the official one also without the said credible scientific evidence and of course direct evidence or admissible secondary evidence.
So how could the Constitutional Court have dealt with non-existent and imaginary evidence?
The Constitutional Court could not have justification and basis to assist the petitioner somehow?
In the overall, I consider that the evidence relied upon was based on conjecture and summation and far from outstanding and being unassailable to discharge the evidential onus.
The issue of disenfranchised teachers and other civil servants became a non-issue.
It was not shown and proven if all the alleged disenfranchised voters would have cast ballots for the petitioner, Chamisa only imagined they could have been his voters.
Chamisa also relied upon the false confidence built along the campaign trail, social media and street popularity. The opening of ballots was perhaps going to be necessary to ensure that the alleged massive variables existed and that the alleged vote stuffing was done by ZEC in connivance or conspiring with Zanu-PF and its winning candidate.
Depending on what individual citizens and or selected groups of the general public prefer as a favourable outcome, the election petition failed to establish substantiated facts on alleged massive rigging, electoral fraud and gross irregularities beyond a reasonable doubt.
The onus was upon the petitioner.
As I said earlier, the changing of figures by ZEC was to bind the confidence of the Constitutional Court also demonstrating the acceptable variables (in this case a paltry 0.1 percent), in an election (margin of error).
The 0.1 percent has no significance to alter the actual result announced and the declaration made.
The loss on the petition will be upon well-founded failure by the petitioner to establish the validity of and the worthiness of the petition in the first place.
It did not get any closer to establish good and sufficient ground to overturn both the results announced in their entirety and also the declaration that President Mnangagwa was the winner.
As judgment was reserved and matter postponed to August 24 2018, the nation waits for the determination of the petition by the Constitutional Court in terms of the provisions of Section 93 (2) of the Constitution.
If President Mnangagwa is successful in defence of his declaration as winner, possibly the inauguration will be on Monday or Tuesday next week.
What is now of importance is the acceptability of the verdict by the constituencies of Zanu-PF and the MDC -Alliance.
It is necessary for Chamisa and his party to accept the verdict as it comes and contain his constituency which has already been prepared and motivated not to accept anything else other than a declaration of a win in favour of Chamisa.
I am convinced restraint and responsible citizenship shall prevail.