Zimbabwe’s Constitutional Court has declared Emerson Mnangagwa’s victory in the presidential election last month valid, effectively declaring the incumbent the winner.
The court’s ruling is final and paves way for Mnangagwa to be sworn in as president within 48 hours following the ruling.
The bench consisted of nine judges, Chief Justice Luke Malaba and Justices Chinembiri Bhunu, Elizabeth Gwaunza, Paddington Garwe, Ben Hlatshwayo, Rita Makarau, Lavender Makoni, Bharat Patel, and Tendai Uchena.
Giving the judgement Chief Justice Malaba said the applicant [Movement for Democratic Change (Alliance) leader Nelson Chamisa] provided no evidence to back up allegations of rigging, and should have sought for a recount within 48 hours as he already knew that he was aggrieved, but waived the right. The Chief Justice also said the applicant made general and “unsubstantiated allegations” of rigging, lacked particularity and specificity, and required to show complicity that the 1st respondent [Mngangagwa] benefited from deliberate and improper election.
In determining the petition the Constitutional Court had three options to consider under Section 93 of the Constitution, to declare a winner; invalidate the election, in which case a fresh election could have been be held within 60 days after the determination; or make any other order it considers just and appropriate.
August 22 ConCourt hearing
On Wednesday (22 August) the court sat to hear the election petition by lawyers representing opposition leader Chamisa, who was challenging Mnangagwa’s win in last month’s presidential election.
Mnangagwa won the July 30 election with 50.8 percent of the vote, enough to meet the 50 percent plus one vote threshold needed to avoid a run-off against MDC Alliance leader Chamisa, who garnered 44.3 percent of the vote.
Chamisa rejected the result, and went to court alleging that the Zimbabwe Electoral Commission (ZEC) had manipulated the counting process in favour of Mnangagwa. His lawyers filed an application alleging widespread discrepancies between official V11 forms recording results from polling centres, and tallying command centres and the final results announced by ZEC.
Chamisa’s legal team argued that the election must be set aside because of a plethora of irregularities, and anomalies including voter intimidation, disenfranchised voters, identical results for Chamisa and Mnangagwa in some polling stations, and ZEC’s revision of final results.
In court Chamisa’s lawyer, Advocate Thabani Mpofu effusively argued that the irregularities erase the slender margin by which Mnangagwa managed to avoid a run-off.
Mpofu argued that “There were at least 16 polling stations with identical results, identical results for Chamisa, identical results for Mnangagwa”.
In their submissions, the Electoral Commission, and Mnangagwa’s lawyers argued that the case should be dismissed on technicalities, saying Chamisa failed to file his petition within the period stipulated by the constitution. The lawyers further argued that the applicant failed to bring to court the evidence alleged to be the primary source of the allegations of voter fraud or manipulation (primary evidence).
Missed opportunity for Zimbabwe’s democracy?
The court ruling does not come as a surprise considering the judiciary has previously had a notable cozy relationship with the executive, and courts are widely seen as subservient to the executive. Across Africa in general, and Zimbabwe in particular rarely does it happen for a court to rule against the sitting president, or government. In Zimbabwe, there have been some cases where the judiciary delivered judgements against the government, and the response from the executive has been harsh (in the form of verbal attacks and threats).
Last year following Kenya’s disputed election, the country’s Supreme Court declared Uhuru Kenyatta’s victory in the August 8 presidential election invalid, and ordered a new vote to be held within 60 days. The Court ruled that the vote was marred by “irregularities and illegalities” and the election “was not conducted in accordance with the Constitution”. The ruling was widely celebrated and seen as a triumph for democracy and constitutionalism, welcomed as an important precedent.
While Kenya’s unprecedented case gave hope for the consolidation of democracy, and the rule of law in the country and for other African countries, the judgement by the Con Court is Zimbabwe is rather inimical to democracy.
Commenting on the August 22 Con Court hearing, legal expert Brighton Mutebuka wrote that, “The Judges were…very resistant and conservative in interpreting legal provisions”. The result of this resistance is a ruling, which fails to take full consideration of the merits of the applicant’s case, particularly the Electoral Commission shortcomings, and electoral irregularities which the body itself acknowledges.