OPPOSITION MDC Alliance leader Nelson Chamisa reportedly faced serious legal obstacles in mounting his Constitutional Court (ConCourt) challenge against the presidential results last month, with fresh details emerging that the ConCourt bench demanded a lot of supporting evidence, which legally could not have been obtained within the given time-frame.
Chamisa’s lead lawyer Thabani Mpofu told NewsDay in an exclusive interview at the weekend that his team avoided seeking a recount of the votes because it was not the focus of their case and that it would have been impossible to access the residue within seven days. He cited a 2013 Supreme Court case where he represented Chamisa’s chief election agent Jameson Timba, who then had lost in the Mt Pleasant parliamentary election, but was denied access to the ballot boxes.
“I represented Timba in 2013. What the Supreme Court upheld was that if you want residue in harmonised elections, you have to cite everyone involved — councillors to presidential candidates — because this involved opening all the ballot boxes. So technically, it means you can’t get the residue in seven days to challenge the results,” Mpofu said.
If Chamisa wanted to access election residue, he would have had to serve, over 3 000 respondents 48 hours after announcement of the results, get the residue and challenge the election results within seven days.
Chamisa had indicated to the ConCourt that he had sufficient evidence, including V11 forms, whose tallies when added together, gave him a little over 2,6 million votes, beating Mnangagwa by over 400 000 votes.
Mpofu said the V11 forms had been placed before the ConCourt, but the Chief Justice Luke Malaba-led bench insisted on evidence adduced from ballot papers and other electoral residue, which they ruled was the only avenue to get substantial evidence to prove the rigging allegations.
“The exchange that I had with the judges was not about the V11, it was about the residue and what it means was what was in the ballot boxes. So when they were saying after the elections, if you decided that you wanted to challenge, you should’ve opened all ballot boxes, you obviously know that’s not possible. We had our V11 forms and presented them before the courts,” he said.
Chamisa reportedly faced a hostile judicial system, where his lawyers alleged that the deputy sheriff and registrar connived to ensure that their case would collapse.
Said Mpofu: “We had an unco-operative and hostile system to contend with, you know what the sheriffs did on instructions. You know the complaint that we had with the registrar refusing to accept process. If you go to court with a subpoena, nobody should ask you why you are issuing the subpoena, it just should be issued. It is for the person who has been subpoenaed to then object when they come before a court, so the subpoena must be issued.
The person must come to court, if there is an objection, they must raise it. We cannot have a system which says to a litigant you can’t issue legal process. One thing that is completely unacceptable, much the same way you cannot have a system which says you instruct the sheriff to issue service and he deliberately doesn’t do so, and he tells you he was ordered not to do so. He had eight hours within which to effect service, and he completely refused. It’s totally objectionable. So that is the kind of system that we had to come up against, not only did we do our best.”
Mpofu added that their case also hinged on the Zimbabwe Electoral Commission (Zec)’s server, but they could not access it because the registrar refused to issue processes and Chief Justice Malaba had indicated that he would not accept any court applications, leaving Chamisa’s case hanging on the strength of Zec’s own admissions of its faulty election figures.
“So before the case, we had a case management meeting and the Chief Justice had indicated that no application would be heard at courts on the hearing day. If any application was heard, it would be dismissed. So technically, when we went to court on that day, we had an option of making an application to have the registrar compelled to issue the subpoena, but we knew that it would be dismissed, because clearly that is what we had been told. So we knew the state of that application and also we knew that it was clear that the registrar had refused to issue the subpoena, which would’ve told the truth, a truth which would have declared Chamisa as the winner,” he said.
Mpofu, whose eloquence failed to win the argument of the day, said the case was strong and did not need residue back-up.
“So this issue that has gotten the country crazy about the fulcrum and the pith, it comes in that context of saying that once you want to show that he (Mnangagwa) did not win, that’s the fulcrum of the case and it does not depend on the residue and I think you can see that. It depends on Zec’s own numbers,” he said. MDC Alliance has since uploaded the evidence on the Internet to prove that they had all the V11 forms and that they did not challenge the poll result from the blues.