By Godfrey Mupanga, LLB
There may be faults with the law and the interpretation of the law by the judiciary in Zimbabwe as compared to Malawi, but my observation is that the main reason why the Nelson Chamisa petition failed is the combination of lack of coordination, feelings of entitlement and an attitude of ‘I know it all’ that pervades the Zimbabwean political elites.
Across the board, once they can discern some kind of a following, politicians in Zimbabwe tend to be rather arrogant and treat their followers like complete idiots. It is not uncommon at rallies in Zimbabwe to hear a politician abusing people in attendance and the crowds bursting out laughing hysterically.
Perhaps a certain 19th Century French philosopher, Joseph de Maistre’s contempt for ‘the people’ who elect political leaders is not all misplaced. ‘The people’, he wrote, ‘…is always a child, always foolish, always absent.’
Wondered another philosopher, ‘was this population (of electors), supposed to be composed of pure idiots, not prone to choose also idiots as their representatives?’
Only once in Bulawayo have I seen crowds showing disapproval at being abused by Mrs Grace Mugabe and walking away from the rally in disgust.
Petitions: Malawi vs Zimbabwe
I do not know much about Malawian politicians, but from a reading of the petitions submitted by doctors Chakwera and Chilima, it appears that none of them considered themselves bigger than the other. They seemed to have communicated and worked well to gather evidence. There is no duplication, but desirable corroboration in the evidence and the arguments raised in the case. Consequently, the Malawi High Court consolidated the two petitions and heard them as one case. It all makes very beautiful reading!
Firstly, there was no coordination between Chamisa himself and the MDC administration team. Secondly, there was no coordination between the MDC and the other losing candidates who were also planning to challenge the declaration of Mnangagwa as the winner. The lack of coordination in these two respects resulted in two awkward situations emerging.
With respect to the MDC and Chamisa, it seemed that each one of them did not know what the other was doing resulting in near duplication of efforts. With respect to lack of coordination among the losing candidates, the other twenty-three candidates failed to file their own petitions and sought to insert themselves into the petition by hanging onto Chamisa’s coat tails.
The MDC administration led by Mr. Timba quite sensibly sought to seek the services of a large team of lawyers with a variety of skills and expertise. This team had resolved to draw upon the skills and expertise of seasoned strategic litigation experts like Ms. Rose Hanzi, the Executive Director of Zimbabwe Lawyers for Human Rights, very senior advocates like (Eric) Matinenga and very seasoned elections and human rights litigators like (Tendai) Biti.
Lesser legal practitioners like myself and others who had worked on various electoral law related issues in the run-up to the election had been invited to be part of the large team of lawyers.
I had been specifically invited to participate because I had worked on the issue of partisan traditional chiefs including successfully obtaining an order against Chief Fortune Charumbira to retract some of his unconstitutional utterances and the Minister of Local Government to find ways to institute disciplinary proceedings against Chief Charumbira. I had also litigated the so-called ballot paper case where the listing of the candidates on the final ballot paper was clearly done to favour the incumbent Mnangagwa.
While Timba’s efforts were going on, Chamisa had also been talking to two of his young friends at the Advocates Chambers and possibly in South Africa and instructing them to commence a petition.
Being aware of the strict time limits in the presentation of an election petition, a meeting to obtain instructions from Timba was quickly organised on a Saturday where everyone was feeling energised and looking forward to putting the shoulder to the wheel for no remuneration at all, but simply for the sake of democracy and the rule of law.
The ‘young advocate’
While the meeting was afoot, one of Chamisa’s friends at the Advocates Chambers waltzed in and to the great embarrassment of Timba, pontifically announced that a petition on behalf of Chamisa had already been drawn up.
The large team of lawyers had many questions to ask. By whom had the presidential election petition been prepared? What kind of evidence had been cited to support the petition? Had arrangements been made in terms of the Constitutional Court Rules for the Electoral Court to record testimonies from witnesses before the Constitutional Court set to consider the petition? Where had the evidence to support the petition been obtained?
Did Mr. Timba really have instructions from the petitioner as he had made us believe or he was on, as lawyers say, a frolic of his own? I specifically sought to ask a few questions on the availability of evidence to support the petition.
Clearly frustrated and probably feeling exposed, the young advocate snapped, and looking straight at me he asked: ‘have you ever argued an election petition in a court of law?’
Having argued just one election petition in my whole humble carrier, I was of course mortified and duly arranged my tail between my legs! Colleagues at the meeting sincerely wished the young advocate good luck, whereupon the meeting ended. It had been a very awkward end to the meeting.
But that was not the end to the display of arrogance, feelings of entitlement and ‘I know it all’ attitudes.
Two other very embarrassing situations, one of them with adverse results occurred when the matter was called for hearing before the Constitutional Court.
In the first situation, it appeared that Chamisa had sought to insert two advocates from South Africa among the two young local advocates appearing for him. Surely, Chamisa and his two advocates should have known from previous experiences with Advocates Bizos and Gauntlet in the Morgan Tsvangiral legal battles that the two South Africans would not have any right of audience in our courts.
Much like Advocates Bizos and Gauntlet were allowed audience before our courts, the two young foreign advocates needed to seek temporary limited licences by way of an application to the High Court and be accepted to the Zimbabwean Bar for the purposes of appearing in this case only.
The Constitutional Court would not have it and relegated the two young advocates to the public gallery.
At how much the two South Africans came in terms of their airfares, lodging at five-star hotels and legal fees, only Mr. Chamisa’s inner circle knows.
The second embarrassing situation at the hearing of the presidential election petition arose from the attempts of the other twenty-three losing candidates to enter the arena by hanging onto Mr. Chamisa’s coattails. Instead of filing their own petitions challenging the declaration of Mnangagwa as the winner, the other twenty-three losing candidates who had been cited in Chamisa’s petition as respondents ended up filing notices of opposition and opposing affidavits.
However, none of the twenty-three opposing affidavits actually sought to oppose Mr. Chamisa’s petition.
Instead, each one of the twenty-three respondents in their purported opposition actually sought to support Mr. Chamisa’s challenge. Surely, all of the twenty-four candidates including Chamisa were going to raise the same grounds for challenging the election and rely on the same kind of evidence to prove their allegations.
If efforts had been coordinated among all the litigants, the work would have been much lighter and the Constitutional Court might have had before it, overwhelmingly corroborated evidence from all twenty-four losing candidates.
The Constitutional Court would not have it and threw out all the purported oppositions from the twenty-three candidates. No one would be allowed to argue their grievances on the substance of their purported challenges by attaching themselves to the lead losing candidate.
Mr. Chamisa was too big and would not work with the lesser twenty-three candidates. Once again, arrogance, feelings of entitlement and ‘I know it all’ attitudes springled with dark granules of selfishness deprived the Constitutional Court of the opportunity to hear from twenty-three different petitioners on the substance of the grounds upon which Mnangagwa’s election was being challenged.
In Malawi on the other hand, the two losing candidates each filed their own petition, thereby entering the ring in their own right. The High Court and Supreme Court in Malawi had the opportunity to hear from the two candidates who had been declared losers on the substance of the challenge to Mutharika’s election.
Evidence to prove electoral malpractices
The lack of coordination and communication and the arrogance to go it alone in the Zimbabwean case soon showed when the Constitutional Court asked the petitioner to produce cogent evidence to support his petition.
In the case of Chamisa, no evidence whatsoever was led to prove the alleged electoral malpractices.
On the other hand, the humility to work with others in Malawi led to the High Court having before it, overwhelming evidence to support electoral malpractices by the incumbent.
In the history of election petitions in Zimbabwe, lack of evidence has always been an issue. It appears that many a lawyer representing petitioners in election petitions do not seem to take any lessons from the old case of Margaret Dongo v Vivian Mwashita and Others. In that case, Mr. Biti, who represented Margaret Dongo requested that the ballot boxes be opened in order for a scrutiny of the ballots to be carried out.
In this case, the dispute was resolved without further ado when the scrutiny showed that there had been serious tampering with ballots that had inflated the numbers for Mwashita, the candidate who had been declared the winner.
In the case of Chamisa, no evidence whatsoever was led to prove the alleged electoral malpractices. A dispassionate consideration of the case shows that the petitioner sought to rely on anecdotal evidence.
Unfortunately, our courts require real evidence before they can set aside an election. In many cases in Zimbabwe and other jurisdictions, there exists a settled rule is that an election will not be disturbed on flimsy grounds. Proper, uncontroverted evidence ought to be marshalled by the petitioner to move the court to set aside an election.
In previous petitions where the Zimbabwean Electoral Court has set aside an election, it is clear that uncontroverted oral and documentary evidence had been led.
I would cite here one example of the Buhera Election Petition, where Justice Devittie set aside the election of Kenneth Manyonda and ordered a fresh election. A reading of that case shows that both viva voce and documentary evidence was led on the offences committed by a local businessman, one Kitsiyatota and an officer of the Central Intelligence Organisation, referred to as Mwale.
It appears that it is the gruesome details provided on the killing of Talent Mabika and Tichaona Chiminya that convinced the Court that electoral malpractices that affected the result of the election in that constituency had indeed taken place.
In the case of Doctors Chakwera and Chilima, the petitioners were able to call witnesses to provide viva voce evidence on the electoral malpractices and how these malpractices had affected the results of the election. In addition, the petitioners were able to take the Court through the numbers on the various returns and show that serious errors that had affected the outcome of the election had been committed.
On the other hand, in Chamisa, the petitioner’s lawyers were invited by the Constitutional Court to a scrutiny of the ballot papers.
They declined the invitation on the basis that the ballot boxes were the ‘poisoned chalice’ from which they could not drink.
With respect, like the Chief Justice, I too am unable to follow the reasoning. Surely, the ‘poison’ in the chalice is the very thing that was needed to be identified in order for the election to be set aside. Without identifying and exposing the poison, how could the election be set aside?
In many election petitions, the petitioners invariably argue that the ballot boxes were stuffed, but they forget or overlook to ask for the ballot boxes to be opened. To be fair to petitioners, the provisions of section 67A of the Electoral Act on the time limits for the ballot boxes to be opened is unfairly restrictive.
It is difficult to understand why the law requires that the request for the ballot boxes to be opened should be made within 48 hours of the declaration of the results by a constituency elections officer. In 48 hours, the results from other constituencies are probably still being announced.
The parties are still soaking up the results that have been announced and consulting on how they should proceed. Within 48 hours of the declaration of the results in a constituency, too much is still going on to expect a political party or a candidate to ask for the ballot boxes to be opened. Political parties and candidates usually wait until the end of the elections to decide the constituencies where they have the best chance of winning a petition.
Surely, the rule ought to be that the ballot boxes can be opened at any time until the time for presenting an election petition has expired; or better still, where an election petition is filed, the ballot boxes should be available for opening until the final decision in the petition is made.
Where the petitioner appeals all the way to the Constitutional Court, the ballot boxes should be open for inspection of their contents until the Constitutional Court passed judgment on the case. In this respect, would propose an amendment of section 67A of the Electoral Act to ease the time limit within which a candidate can make a request for the ballot to be opened.
A better practice would be to include the procedure of scrutiny in the election petition process.
48 hours: An amendment
I would go further than simply extending the 48-hour period to propose that the Electoral Act be amended so that the procedure of scrutinising the ballot papers is included as part of the election petition procedure.
An example can be gleaned from the procedure adopted in England and Wales where the Representation of the People Act allows for scrutiny of the ballot papers as an inherent procedure of the election petition process.
Under the law in England and Wales, the election petition procedure includes a process called ‘scrutiny’, which can be used to correct the result. Using this procedure, the Electoral Court can examine election materials that include used and unused ballot papers and particular votes, the voter register and the completed polling station returns, among other materials, to determine whether the electors who cast them were entitled to do so.
During this process the Court has the power to strike off any invalid votes. The election result can be corrected without going all the way to hear evidence in court.
To election candidates, my advice would be that meanwhile, while the Electoral Act insists on the 48-hour rule for opening of ballot boxes, candidates and their campaign teams might consider including an election petition at the close of the elections as part of their campaign strategy.
Candidates should not wait until the end of the election to think about presenting an election petition. An example of such campaign strategies can be gleaned from the United States of America. If candidates adopt this approach, during the course of the campaigns, they will be able to strategically collect and properly document evidence in a form that is acceptable by the Electoral Court and identify witnesses.
That way the candidates will not rely on anecdotal evidence as Chamisa did at the hearing of the petition. If they win the election, they will simply file away the evidence. They will not lose much apart from the cost of collecting and documenting the evidence.
The cost of not gathering the evidence in the event that they lose the election far outweighs the cost of gathering the evidence and winning the election.
Godfrey MupangaLLB (Hons)(UZ), LLM (Leeds), LLD (Fort Hare) is a lawyer with Mupanga
Bhatasara Attorneys in Harare. He is a member of the Zimbabwe Lawyers for Human Rights.
This submission was first published via Academia Letters