Chamisa v Mnangagwa: Between the PITH and the FULCRUM lies the need for primary evidence.

The Zimbabwe Constitutional Court did it’s “rachet” or “immaculate” job depending on who you are talking to. What is clear though is that Emmerson Mnangagwa is now the duly elected President of Zimbabwe. A few points to digest and questions to ponder over the constitutional court case as we move forward especially with regards how the applicant’s case was handled and presented on that fateful Wednesday morning.

Were the teachers going to vote Chamisa anyway?

Firstly, there was an issue of the 40 000 teachers who were reportedly disenfranchised by being posted on duty to polling stations far away from their registered polling stations. Clearly, there is an issue here because of the polling station based system and the close contest that was the Presidential elections, those votes could have swayed the vote in any one of the candidates’ favor. Moreover, in a country as poor as Zimbabwe where the same teachers were already rubbing their fingers for a run off so that they could get more “election” allowances there clearly is need for them to be afforded a chance to vote first before their deployment. I’m sure ZEC knows this and if they really wanted or if it was going to work in the incumbent’s favor they would have made provisions for it to happen. The situation in Zimbabwe worked well for ZEC, ZANU PF and the teachers and all chose to hear nor see evil when election time came.

Questions linger: would the teachers have voted for either of the candidates in the petition if they had been given a chance to do so before the election; were the 40 000 teachers registered voters anyway?

There was always going to be a real risk of making so much noise about these so called disenfranchised voters and being proven wrong in the end. A take away point remains though for ZEC that the people and civil servants it deploys must as a matter of principle be afforded a chance to vote before they are deployed.

The teachers argument – was it Chamisa’s bone to chew?

A concomitant question is related to the strategy by Chamisa’s counsel to bring the issue of the supposedly disenfranchised teachers before the courts. Was it their bone to chew?

Even if they had done so, would Chamisa have locus standi?

A better strategy for the MDC Alliance would have been to get the aggrieved teachers who supposedly wanted to “work” as polling agents to then approach the courts as individuals or as a class with like issues challenging ZEC and the government of Zimbabwe on the disenfranchisement. But alas, that did not happen. The argument posed by the MDC Alliance was quite weak here.

The question of state sponsored and politically motivated violence

In the applicant’s averments, allegations of politically motivated violence, state sponsored violence and intimidation were raised. While it is a known fact that Zimbabwe has always struggled with the scourge of election related violence and intimidation, a stronger case would have emerged if solid evidence to back the allegations had been provided. A number of international bodies and foreign observer missions had already set the bar very low by arguing that “Zimbabwe was at least not very violent this time around”.

While it is a sad phenomenon that as Zimbabweans we have to measure the credibility of our elections based on the absence of violence, the truth of the matter is that the MDC Alliance had to then prove that the violence and intimidation alleged prior, during and after the election influenced the result against them. Evidence for these allegations was scanty. It is not clear why this was so but it certainly worked against them.

A take away point for Mnangagwa is that he must work on ending state sponsored and politically motivated violence in Zimbabwe. Moving forward, Chamisa needs to have a stronger team that documents such intimidation and violence and be able to show how it influences election trends against his party.

A point can also be made about the different civil society organisations operating in Zimbabwe and working on these issues of political violence and state sponsored violence. If they have or had the evidence they could also have approached the court as friends of the court or to support or oppose the applicant and the first respondent. The issues of violence have been with Zimbabwe for ages since Mugabe’s time. An open and transparent Constitutional Court would have taken more time to hear out this part of the matter carefully for the sake of Zimbabweans. We all know that the legal bench remains inundated with legal cases of political violence that have not been finalized or compensated and the judiciary has remained quiet, unbothered and reticent about these cases stretching as far back as 2008.

The farce that was the EU report on V 11 form posting

Then there was the rather farcical argument about the EU observations that ZEC had not posted V11 forms outside polling stations. A question was posed to Advocate Mpofu on the names of the polling stations but he dodged the question and do not provide the answers. I failed to understand why it was so difficult for him to give the names of the alleged polling stations as reported by the EU unless if the information was not just there at all.

Such kinds of gaffes in my opinion only led to the defence and the bench poking holes in Chamisa’s case unnecessarily. The alleged report by the EU actually raises more important questions for me:

• did the EU have the names of the polling stations;
• at what time did the EU observers note that the results had not posted;
• are there any other missions that reported the same anomalies as the EU;
• what did the MDC polling agents at the said polling stations report?

If no one can answer these questions and more then it would have been difficult for this point to sail.

The question of primary vs secondary evidence

A vexing issue arose over the use of primary vs secondary evidence in the Constitutional case. Advocate Thabani Mpofu prompted on the matter by Chief Justice Luke Malaba quickly noted that it was not necessary to delve into primary evidence because the secondary evidence based on the numbers was sound enough.

But the question that begs answers is whether this was true? Thabani Mpofu kept arguing that to consider the evidence from ZEC would be akin to drinking from a poisoned chalice. This could be equally true but I think the onus still fell on Chamisa to bring out the V11 and V23 forms which they say contained all the evidence that the election had been rigged.

This should not have been a complicated act or process. Chamisa for some time after the election noted that he had this information. This is not information that is sold or difficult to find because it is easily available from their polling agents. So if the MDC Alliance had this information why was it not made available in court? If the MDC Alliance fielded polling agents in all the polling agents across Zimbabwe why then did it become difficult to produce such information where it was most needed – that is the Constitutional Court?

There were insinuations that there had been ghost polling stations. It is known that ZANU PF has employed such crude tactics before. However, it is important that the MDC Alliance proves at least that this actually happened. This allegation was dismissed by Kanengoni, the ZEC lawyer and leaves one wondering whether the MDC Alliance had been clutching at straws or they had been using hearsay and past allegations against ZANU PF to bolster their case against Mnangagwa.

The case would have been thrown out by the judges anyway?

Allegations have been made against the Constitutional Court judges who are said to enjoy lavish lifestyles at the expense of the taxpayer through ZANU PF. There are allegations that the verdict was already known and this process was just to rubber stamp an already made decision. Chief Justice Luke Malaba in certain instances kept interjecting Advocate Thabani Mpofu and asking prodding questions. People are raising dust over this and asking why he did not do the same to Magwaliba and Uriri. But I honestly don’t see any problem with that. Any one in their right mind would have asked the same questions but maybe in a different manner but that cannot be a matter that would carry so much weight as to derail such a case.

So what if you speak Latin and the Queen’s language?

Then comes the fascination with the “Qui facs” and “pith fulcrums”. Thabani Mpofu played around with Latin and the Queen’s lingo much to the amusement of those attending the court and much of the whole country. But then, so what? Speaking a different language and knowing small phrases here and there is not what makes a case strong. It will excite people but will not win you any case. It is all well and good to be a dribbling player and one who dances on the ball but if you cannot score goals, and the other team focuses on scoring goals they will definitely win the game anyway.

Were some of the questions not already anticipated?

Questions abound on whether the MDC Alliance did not anticipate some of the questions they were asked especially with regards the need for primary evidence, the issue of the teachers and even small things like the EU allegation on the posting of the V11 forms:

• Did they do their homework;
• Did they do their own scenario mapping before they went to the court?

Chamisa must not waste his time with the African Commission on Human and People’s Rights!

He will be taken in circles. We all know what happened with Chinamasa and the SADC Tribunal. The African Commission has funny rules with regards admissibility of cases. Strange questions are asked about “disparaging language” in the complaints etc. If you call someone a murderer, a dictator etc. you will not be liked by the Commission. The case will drag till Mnangagwa’s five years are done. And the funny one is that whatever decision is passed by the African Commission will have to be ratified by the African Union Heads of States.

After the debacle with Paul Kagame early this year, Chamisa must know better. Moreover, the show of support at ED’s inauguration by the SADC states must  send a clear signal of what will happen at the AU when the time to deal with Chamisa’s case comes. Honestly, people must do their homework before embarking on the long and winding trip to Banjul.

Anyway, Mnangagwa is now the President for the next five years

Anyway, it is all too easy to poke holes and ask questions in the aftermath.

Maybe the MDC Alliance knows better why they took the route they embarked on at the Constitutional Court.

I guess it is all lessons learnt for the two contestants and ZEC as well.

One important one for Mnangagwa though is that he knows he is leading a very divided nation and he must do more to bring Zimbabwe together and lift the country out of this debilitating poverty that we find ourselves in.

For Chamisa I guess its back to the drawing board to assemble the MDC party and also rally his forces in Parliament, councils and outside government to continue holding ZANU PF accountable.

ZEC is just beyond correcting – their mistakes, gaffes and blunders are too glaring – they must go home. I wonder how Mnangagwa is even prepared to work with such sloppy people. My advice to him is that he spares us such from his Cabinet and other senior appointments.

The message for Mnangagwa is clear: REPAIR THE BROKEN COUNTRY MR PRESIDENT!