Court bid to overturn Zimbabwe election result
Publish date: 13 August 2018
Issue Number: 4521
Diary: Legalbrief Today
The MDC has lodged a court bid to overturn the results of Zimbabwe's presidential election that it alleges was rigged to ensure victory for Robert Mugabe's successor, Emmerson Mnangagwa. The opposition has accused the ruling Zanu-PF party and the election commission of ballot fraud in the 30 July vote. Mnangagwa's inauguration – planned for yesterday – was immediately postponed until the court makes its ruling. ‘We will rest when this country is liberated,’ Jameson Timba, a senior member of the MDC, told journalists outside the Constitutional Court. A report on the News24 site notes that international monitors largely praised the conduct of the election itself, although EU observers said that Mnangagwa, a former long-time Mugabe ally, benefited from an ‘un-level playing field’ and some voter intimidation. Mnangagwa narrowly won the presidential race with 50.8% of the vote – just enough to avoid a run-off against the MDC's Nelson Chamisa, who scored 44.3%. Analysts say that the legal challenge has little chance of success given the courts' historic tilt towards Zanu-PF, which has ruled since independence from British colonial rule in 1980. Judges have 14 days to rule on the case, and could declare a winner, call another election, or order a run-off or recount, according to the Veritas legal group. The inauguration should take place within 48 hours of the court's ruling, it added.
Leading SA lawyer Tembeka Ngcukaitobi said the MDC Alliance's challenge ‘looks solid’. Two legal minds from SA, Advocates Ngcukaitobi and Dali Mpofu SC, are fighting in the alliance's legal corner. A fierce battle looms as the ruling Zanu-PF party has assembled its own team of 12 lawyers to represent it. Patrick Chinamasa, one of the lawyers on the team, said the party was prepared with responses to the ‘unwarranted’ litigation by the MDC Alliance. ‘Zanu-PF will defend the will of the Zimbabwean people as expressed through free, fair, transparent and credible elections,’ he said. In an interview with the Sunday Times, Ngcukaitobi said: ‘The case looks solid on the facts at our disposal at this stage. We shall wait to see what the Zimbabwe Electoral Commission (ZEC) brings up by way of its defence.’ It is understood that evidence the alliance intends to present to the court includes witness accounts, videos of unsealed ballot boxes being taken to unknown locations, and proof that forms – posted up outside polling stations to show the results when vote-counting has finished – were manipulated. Legal experts said the court's decision on the presidential results would be final and could not be contested further. ‘It can, under section 93(4) of the constitution, declare a winner that conforms to the ZEC's declaration or declare another candidate the winner,’ said one legal expert. ‘It can invalidate the election, in which case a fresh election must be held within 60 days, or make an order that it considers just and appropriate. (The ZEC) can invalidate the election, in which case a fresh election must be held within 60 days. This order could include a recount of votes, or a run-off (election) if the court finds that none of the candidates had a 50%-plus-one-vote threshold.’
Mnangagwa has claimed credit for intervening to ensure that opposition MP Tendai Biti was released on bail after two days on the run. In a Daily Maverick analysis, Carien Du Plessis notes that if this is part of a presidential strategy, it could spell bad news for the challenge to the election results. In a brief statement early on Thursday evening, following the People’s Democratic Party leader’s release on $5 000 bail, Mnangagwa said it was due to his intervention. ‘At such a crucial time in the history of the new Zimbabwe, nothing is more important than unity, peace and dialogue. Equally important, however, is an adherence to the rule of law. I repeat – no one is above the law. Thus due to the serious nature of the allegations of incitement, due process will continue,’ he tweeted. Du Plessis questions whether Mnangagwa gave instructions to state prosecutors not to oppose bail . ‘Or, possibly worse, did he make presiding Magistrate Francis Mapfumo understand that the presidential wish was that Biti be released? After all, Biti’s arrest was so messy and such a PR disaster that it would make Biti look a martyr if he were made to languish in a jail. Biti managed to cross the border into Zambia on Thursday before he was dragged back to Harare by law enforcement, so why wasn’t he considered a flight risk by the court?’
In other developments, hopes of an economic turnaround in Zimbabwe are slowly fading after US President Donald Trump last week signed into a law a Bill meant to extend sanctions that were imposed on the southern African country back in 2001. A report on the Fin24 site notes that Trump signed the Zimbabwe Democracy and Economic Recovery Amendment Act of 2018' (Zidera Act), which amends the Zimbabwe Democracy and Economic Recovery Act of 2001. The new Bill had laid out US expectations for a free and fair election. ‘The expectations of the 2001 legislation hold true today – Zimbabwe must make credible progress towards holding free and fair elections, restore the rule of law and ensure military subordination to the civilian government, among other desperately needed reforms,’ said the US in a release by its Foreign Affairs Committee ahead of elections.