In this third week of August 2018, the Constitutional Court in Zimbabwe has the opportunity to provide a positive trajectory for Zimbabwe, out of the political turmoil that has plagued the country for years. Unfortunately, depending on what the court decides, this opportunity also bears the potential of worsening the situation if the judiciary fails to uphold the Constitutional principles of efficacy, fairness and transparency.
The Constitutional Court is expected to finalise the challenge lodged by Nelson Chamisa of the Zimbabwe Movement for Democratic Change (MDC). The challenge relies on section 93 of the Constitution which allows any aggrieved party to challenge the validity of the recently held elections.
The founding affidavit by Chamisa raises a number of issues which, if proved correct, will render the manner in which the elections were conducted unconstitutional on many grounds. Some of the allegations include irregularities in the collating, verifying and counting of the ballots, the threatening of rural inhabitants with injury, loss of their landholdings, loss of food aid, a lack of transparency in the conduct of the elections, and a biased Electoral Commission as well as state media.
President Emmerson Mnangagwa as the first respondent has also filed opposing papers with the Court. The initial parts of his papers are based on technical objections including that the application was not lodged within the right time frame, incomplete service, service at incorrect addresses and how it does not comply with the procedures set out by rules of the Court.
The opposing papers by Mnangagwa further argue that the applicant lost the Presidential election on account of not having a visible election strategy, no budget and no clear campaign strategy. He also argues that there is insufficient and inaccurate evidence to support the allegations outlined in Chamisa’s founding affidavit. Finally, Mnangagwa challenges Chamisa to prove that the alleged malpractice or irregularities materially affected the outcome of the election.
In my opinion, the crux of this case rests on the Courts ability to resolve some of the following difficult scenarios.
If Mnangagwa is successful in proving his claims that Chamisa did not adhere to the time frame and service procedures as stipulated by the Constitution and Rules of the Court, the Court will have to decide if the procedural shortfalls by Chamisa, in their isolation, are sufficient to dismiss the case. If the court dismisses the case on these grounds, it will obviously then not hear the merits of Chamisa’s arguments. The Court is obliged to take a wider perspective in such a scenario.
The reality is that Chamisa and Mnangagwa are not the only parties affected by the outcome of this election. The people of Zimbabwe and the SADC region have endured long periods of political instability in Zimbabwe and this is an ideal opportunity for the judiciary to redeem itself and heal the wounds of the nation. The Court may acknowledge the procedural shortfalls by Chamisa, if any, and carefully weigh these against the requirements of justice. They should strike a balance between compelling the litigants to strictly adhere to time frames (and or service requirements) versus the Court’s own duty to rectify a constitutional injustice that was triggered by the flawed electoral processes, provided Chamisa is able to prove his allegations.
The guiding principle in this scenario would be to weigh the prejudice that could be suffered by Mnangagwa and the other respondents as a result of Chamisa’s procedural shortfalls against the prejudice that Chamisa and the people of Zimbabwe would have to endure should the election results be declared final, free and fair despite the existence of prima-facie credible evidence to the contrary before the Court, evidence which will only be heard if Chamisa is allowed an opportunity to prove his allegations.
The second possibility in this case depends on whether Chamisa will be able to successfully rebut Mnangagwa’s procedural arguments or if the Court condones his errors in procedure. If Chamisa is allowed to proceed arguing the merits of his case, and successfully presents his evidence to prove his allegations of electoral irregularities, what weight will the Court accord to each claim that is factually proven?
What necessitates this determination of weight is the fact that Chamisa will have to convince the Court that the irregularities had an adverse and undesired effect on the outcome of the elections. It is cardinal to establish this so that the Court has enough reasons to either call for a re-election or order any other remedy they may deem fit.
Considering this hypothetical situation, one may argue that it would amount to “using a sledgehammer to crack a nut” if, as a result of one isolated case of intimidation, the Court then proceeded to order that elections be started afresh. However, in the current scenario, the allegations outlined by Chamisa, if proven true, show a systematic and deliberate effort to undermine the constitutional foundation of free and fair elections. The Court should therefore view each piece of evidence in a serious light. The Court has wide powers in its decision making which includes declaring a winner, invalidating the election and requesting fresh elections to be held within 60 days or any other order that it deems just and appropriate.
The credibility of the judiciary in Zimbabwe, and in particular judicial independence in politically charged cases has been widely questioned in the past. For instance, in 2008, the High Court decided that the “provision barring an appeal simply means ZEC has been given a very wide discretion as to whether or not to order a recount. The provision that ZEC’s decision shall not be subjected to an appeal also means this court cannot inquire into that decision. This should therefore be the end of the inquiry, as ZEC’s conduct can only be open to the jurisdiction of this court when it strays from the law”.
This decision stood as a symptom of the inability of the judiciary to re-affirm constitutional values against state institutions when circumstances required it to do so. The SADC region and the people of Zimbabwe can therefore only hope that the thinking and philosophy of the Constitutional Court will be different this week.
Prof Ilyayambwa Mwanawina
