What you should know about the presidential petition procedure

Zimbabwe's Constitutional Court will hear a petition against the July 30 presidential election on August 22

NELSON Chamisa’s presidential election petition challenging President Emmerson Mnangagwa’s win in their tight July 30 contest is due to be heard Wednesday.

It is a significant event in Zimbabwe’s electoral history as well as the country’s jurisprudence. Here, newZWire explains some of the key aspects of the case:

How many presidential petitions have been lodged before?

The Chamisa petition is the third of its kind since 1980.

The first was filed by the late MDC leader, Morgan Tsvangirai, in April 2002 after a disputed election held from March 9-11 that year.

Incredibly, that petition remains unresolved to date.

The second was yet another Tsvangirai versus Mugabe petition filed after the 2013 election. Although Tsvangirai sought to withdraw his 2013 petition citing failure to access key election material to support his application, the Chief Justice ordered that the case be heard. The court later ruled that election as “free, fair and credible” and “a reflection of the will of the people”.

The presidential petition will not deliver movie-style cross-examination

Will there be witness cross-examination?

Given the heightened tensions and expectations around the case, many have imagined the scenes reminiscent of ‘A few good men’ when Tom Cruise’s character, Daniel Kaffee, faced down a snarling, belligerent Colonel Nathan Jessup (played by Jack Nicholson) and elicited, not just a confession, but one of Hollywood’s most memorable dialogues.

Kaffee: I want the truth.

Jessup: You can’t handle the truth!

Kaffee: Did you order the Code Red?

Jessup: I did the job

Kaffee: Did you order the Code Red?!

Jessup: You’re goddamn right I did!

Lawyers for both Chamisa and Mnangagwa have shown an inclination for the dramatic. Both Thabani Mpofu and Lewis Uriri, who are expected to lead Chamisa and Mnangagwa’s cases, respectively, are known for their courtroom histrionics, but Wednesday’s proceedings – with millions of viewers thanks to an unprecedented live broadcast – will mostly be a staid affair. We’re unlikely to have many Harvey Specter moments.

Because this is a court application, the Constitutional Court will determine the case on papers filed on record and not on oral witness evidence. The matter will not be ‘tried’ – no witnesses will be called for cross examination.

So, in terms of procedure, Chamisa’s lawyers will kick off proceedings, presenting his case as the applicant.

The lawyers for the respondents, Mnangagwa and the Zimbabwe Electoral Commission, will then take the floor to react to issues brought up by the applicant. 

After the respondents have taken their turn, Chamisa’s lawyers will get the opportunity to reply. A lot of time is likely to be spent arguing on the technical aspects; such as whether papers were filed in time or not. 

Can you appeal against the ruling?

Short answer; no. The Con Court’s decision is final. If the declares a winner, an inauguration will be held within 48 hours.

Titanic battle…Nelson Chamisa and Emmerson Mnangagwa

What can the court order?

The Constitutional Court may:

  • declare a winner;
  • nullify the election, leading to a fresh election within sixty days after the ruling; or
  • make any other order it considers just and appropriate.

How long will the court take to make a ruling?

Unsurprisingly, the timing around the presidential petition has been a hotly disputed matter, with divergent interpretations. As the case has played out, the timelines do seem to point to the matter being concluded by August 24, which is 14 days after Chamisa’s papers were filed.

Who constitutes the Constitutional Court bench?

In terms of the Sixth Schedule of the Constitution, the Constitutional Court bench will, until 2020, consist of:

  • The Chief Justice
  • Deputy Chief Justice
  • Seven Supreme Court judges

After 2020, the Constitutional Court will be made up of:

  • The Chief Justice
  • Deputy Chief Justice
  • Five Constitutional Court judges

How many judges will hear the presidential petition?

The full bench – nine judges – is required to hear any constitutional case. The include the Chief Justice, Deputy Chief Justice and seven Supreme Court justices.

Who will hear the case?

Until 2020, the Constitutional Court will call upon the Supreme Court bench to adjudicate matters.

Currently, apart from Chief Justice Luke Malaba and his deputy Elizabeth Gwaunza, there are 11 other Supreme Court judges from whom seven can be called upon to hear the presidential petition.

These, in order of appointment date, are:

Rita Makarau

Paddington Garwe

Marie-Ann Gowora

Ben Hlatshwayo

Bharatkumar Patel

Antonia Guvava

Chinembiri Bhunu

Susan Mavangira

Tendai Uchena

Francis Bere

Lavendar Makoni