UPDATED: Court upholds ED victory…Chamisa election case dismissed with costs

25 Aug, 2018 - 00:08 0 Views
UPDATED: Court upholds ED victory…Chamisa election case dismissed with costs

The Chronicle

Chief Justice Malaba

Chief Justice Malaba

Daniel Nemukuyu, Harare Bureau
THE Constitutional Court yesterday upheld President Mnangagwa’s victory in the July 30 election saying the petition by MDC Alliance leader Mr Nelson Chamisa was deficient of evidence buttressing his litany of poll rigging claims.

Mr Chamisa, who lost the presidential election to President Mnangagwa, challenged the validity of the election.

He alleged that the election was rigged in favour of President Mnangagwa.

Mr Chamisa raised a host of allegations including vote buying, existence of ghost polling stations, denial of 40 000 teachers the right to vote, skewed media coverage by the State media and inflation of figures among others.

Chief Justice Luke Malaba, sitting with eight other judges of the Constitutional Court, found no fault with the conduct of the 2018 harmonised election.

The court, unanimously threw out the application with costs.

“In the result, Application is hereby dismissed with costs. In terms of Section 93 (4) (e) of the Constitution, Emmerson Dambudzo Mnangagwa is duly declared the winner of the Presidential elections held on the 30th of July 2018,” said the Chief Justice.

He said the failure by Mr Chamisa and his lawyers to produce primary evidence substantiating the rigging claims was fatal to the case.

“The best evidence in this instance, would have been the contents of the ballot boxes themselves. That is the primary source evidence. Evidence of the contents of the ballot boxes compared to the announcement by the electoral commission and the evidence within the applicant’s knowledge, would have given the court a clear picture of electoral malpractices, if any had occurred.

“The applicant needed more evidence than the mere admission by ZEC on the inaccuracy of the mathematical figures,” said the judiciary boss.

The court also found that Mr Chamisa’s failure to send polling agents to all polling stations also deprived him of the much needed evidence to prove his claims.

Desperation on the part of Mr Chamisa, the court said, resulted in him fabricating evidence in a failed bid to mislead the judges.

The court ruled that Mr Chamisa deliberately lied to the court that some V11 forms were only signed but not populated.

“ZEC proved through the V11 forms that the allegation that some V11 were signed but not populated was false and there appears to have been a deliberate fabrication of evidence with an intention to mislead the court,” he said.

Chief Justice Malaba said Mr Chamisa failed to establish the alleged infractions by both ZEC and President Mnangagwa in the conduct of the election.

“The court finds that the applicant failed to place before the court, clear, direct, sufficient and credible evidence that the irregularities alleged to have marred the process, materially existed.

“There was no proof of the happenings of these irregularities as a matter of fact,” he said.

The court held that the allegations against President Mnangagwa were general in nature and unsubstantiated.

“Applicant made general allegations against first respondent. No allegations of personal, and direct manipulation of the process were put forward against first respondent.

“All allegations were made without particularity and specificity. This would have been required to prove allegations of complicity against the winner of the election.

“Nevertheless, if the applicant had proved that the electoral commission committed irregularities and met the legal  requirements of such a petition to the requisite standard of proof, this alone, would have been sufficient to invalidate the election even in the absence of direct involvement by the first respondent,” he said.

It was also the court’s finding that Mr Chamisa lodged his application out of time but the court just condoned the violation due to the importance of the case.

“It is common cause that the application was served on the 11th of August outside the timeframes stipulated in the constitution and contrary to the rules of the Constitutional Court.

“The applicant however, clearly breached the rules of the court and filed a defective application. But due to the importance of the matter, the court has the power to condone such breaches.

“This court is prepared to and hereby grants the application due to the importance of the matter and public interest involved,” said the Chief Justice.  *See Comment on Page 4




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