Fidelis Munyoro Chief Court Reporter
The Zimbabwe Electoral Commission (ZEC) says MDC-Alliance leader Mr Nelson Chamisa’s petition challenging the July 30 presidential election results which declared President Mnangagwa the winner is “fatally and incurably defective” to nullify the results.
Mr Chamisa has approached the Constitutional Court claiming that ZEC engineered the presidential election results in favour of President Mnangagwa.
But ZEC chairwoman Justice Priscilla Chigumba said no valid application has been filed by the MDC-Alliance leader challenging the election of Cde Emmerson Mnangagwa to the office of the President of the country.
She said this while responding to Mr Chamisa’s petition lodged with the apex court last Friday. Mr Chamisa, Justice Chigumba said, not only failed to comply with the court rules, but filed an uncompleted record to render his petition invalid.
“He has failed to effect valid service of his application within the prescribed seven-day period,” she said.
“His application is thus fatally and incurably defective and ought to be struck off the roll.”
Justice Chigumba, in her response, alluded to rule 23(2) of the Constitutional Court Rules that the application provided for in terms of Section 93(1) should be filed with the Registrar of the Constitutional Court and served on the respondents within seven days of the date of announcement of the election results.
“Both such filing and service within a seven-day period are constructive of the proper lodging of a challenge to the election of the President,” she said.
“Any filing and service that is done outside that timeframe is accordingly invalid with the correlative effect of rendering the entire application fatally and incurably defective.”
Turning to Mr Chamisa’s claims of malpractices by ZEC, Justice Chigumba said there was no basis for the conclusions made that there were constitutional and electoral law violations she committed in the administration of the July 30 harmonised elections.
She said Mr Chamisa’s founding papers have not proven an irregularity as alleged and all he makes are bare allegations.
“The conclusion made by the applicant from this bare allegation is that the electoral commission rigged the presidential election with no evidence given to show the alleged rigging,” she said.
Justice Chigumba said Mr Chamisa should make out a full case in his papers and if he brings bald and unsubstantiated allegations, his application cannot possibly succeed.
The ZEC boss further argued that if Mr Chamisa had polling agents at the unidentified polling stations he claims did not have the returns affixed, those agents would have been given V11 forms before the return for the polling stations is posted outside the voting booth in terms of the law.
“The applicant does not in this context present his V11 forms and contend that the V11 forms that the electoral commission has are different from what he has,” she said.
“If he did not have polling agents at the unidentified polling stations how does he conclude that the alleged failure to affix a return in terms of the law occurred or resulted in the alleged rigging at those unidentified polling stations.”
Justice Chigumba said in the context of a challenge to an election return, it was not enough for Mr Chamisa to give broad, sweeping statements as basis for the relief he seeks.
“He must illustrate in his papers how the tally of votes was affected by an issue that he raises as a ground for his challenge. He fails to do so.”
Justice Chigumba said she had not been served with a bundle of evidence, which Mr Chamisa claims contained proof of malpractices he alleges occurred during postal voting.
She will also argue that as part of the verification process, Mr Chamisa’s election agents, agents for other presidential candidates and election observers had full access to the original V11 and V23 forms with respect with presidential election from which they could make notes as they required.
Justice Chigumba also explained that transmission of results from polling stations, wards, constituencies is done manually in accordance with the provisions of section 64(2) of the Electoral Act.
“The electoral commission had no server set up at the national command centre or anywhere else on which results were sent and stored in real time as the applicant suggests,” she said.
Justice Chigumba also averred that the verification of presidential election return was done over the two-day period that Mr Chamisa acknowledges his elections agents were present and participating at the national command centre.
“The verification itself consisted of election agents verifying the V11s and V23s that the electoral commission had and was using to compile the full result of the presidential election,” she said.
Justice Chigumba said over the two day period Mr Chamisa’s election agents had unlimited access to all V11 and V23 forms relating to the presidential election and had the opportunity, at their discretion, to make notes from the forms or to raise queries with the electoral commission officials where they had problems with information that was on the V11s and V23s being used by the commission versus what they had through their own election agents from various polling stations.
Mr Chamisa is seeking an order nullifying the results and have him declared the winner or alternatively the court to order a fresh election.
The hearing has been set for August 22 before the full bench of the Constitutional Court led by Chief Justice Luke Malaba.