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Historic Presidential Election Court Challenge Grips Zimbabwe

FILE - Tinomudaishe Chinyoka, one of the lawyers representing ZANU PF's Presidential candidate Emmerson Mnangagwa, arrives to file opposing papers at the Constitutional Court in Harare, Zimbabwe, Aug. 15, 2018.
FILE - Tinomudaishe Chinyoka, one of the lawyers representing ZANU PF's Presidential candidate Emmerson Mnangagwa, arrives to file opposing papers at the Constitutional Court in Harare, Zimbabwe, Aug. 15, 2018.

Zimbabwe’s opposition MDC Alliance leader Nelson Chamisa finally gets his day in court, Wednesday, when the full Constitutional Court sits to decide on whether or not the July 30th election was rigged in favor of incumbent President Emmerson Mnangagwa.

Chamisa, a 40-year-lawyer and ordained minister who took over from the late MDC-T leader Morgan Tsvangirai, is challenging the results of the Zimbabwe Electoral Commission (ZEC), which initially gave Mnangagwa a 50.8 percent margin before revising the margin downwards to 50.67, and again to 50.6percent.

The Commission’s chairperson Priscilla Chigumba is blaming data capturing errors for the initial poll results.

Legal experts are warning that the odds are stacked against Chamisa, seeking to become only the second African presidential aspirant to have courts annul election results. In 2017, Kenya became the first African nation and only third in the world after Ukraine, Maldives and Austria to have courts annul an election result.

But constitutional law expert and former presidential candidate Lovemore Madhuku of the National Constitutional Assembly, says Chamisa’s case may be dead on arrival.

“The law says that you must file within 7 days, but then there’s another law which also says you must file and serve your documents on the other party within 7 days of … so what happened in this case which is not disputed is that some of the respondents only received their court papers after seven days - they received them the next day on the 8th of August, actually on the 11th of August, which was the 8th day.”

Madhuku says if the court wants, it can refuse to grant the applicants room to negotiate.

“They’ll then have to decide as applicants if they want to seek forgiveness which is called condonation, and the court might condone them. Or they seek forgiveness or condonation if it and the court doesn’t grant it, if it doesn’t grant it, that will be the end of the matter.”

Despite that technicality which the Electoral Act gives the courts the power to dismiss a case, Chamisa says he is confident that his legal team would overturn the electoral fraud he claims was engineered by ZEC in favor of Mnangagwa.

Douglas Mwonzora, one of Chamisa’s legal team members, argues the allegation of late submission is a ploy by Mnangangwa’s Zanu-PF party to circumvent justice. He says Chamisa will ultimately prevail.

“Unfortunately, this aspect was overdwelled in the press and it may have misled members of the public. The jury is still very much out there. I don’t think it’s going to be as easy a point as some people have said. I have read two sets of arguments which are in the public domain anyway, and it appears to me that it is going to be a very, very hot issue.”

The legal team representing Mnangagwa however, is confident that the MDC Alliance case will not see the light of day. Zanu-PF Secretary for Legal Affairs, Paul Mangwana, expects the hearing not to go far.

“We expect this matter to be dealt with probably on preliminary grounds, which are quite strong, whether or not there’s a valid application before the court. That is the main issue which should be deliberated upon by the court before they get into any other issue.”

The MDC Alliance was dealt another blow this week, when the high-powered lawyers they had recruited from South Africa, failed to get permits to legally represent them in the country. The team, which includes South Africa’s Jeremy Gauntlet, Dali Mpofu and Tembeka Ngcukaitobi, were expected to argue in support of Chamisa’s claim that he was cheated out of victory in the July 30 poll.

In an exclusive interview with VOA Zimbabwe Service, Zimbabwe Justice Minister Ziyambi Ziyambi says he received the requests to give the foreign lawyers working permits but the MDC Alliance had informed his office late.

“What is very surprising and apparent in this is, when they brought in the application on Friday, they then indicated on social media that I had refused to grant when they had brought in an application which they have acknowledged by giving me all the necessary information, that it did not have sufficient information. And how on earth they expected me to complete the exercise in a few hours, an exercise which ordinarily does not take less than two weeks, I’m surprised.”

As the odds seem stacked against the MDC Alliance, the party remains confident that the Constitutional Court, will overturn the election results and give Chamisa the mandate he says he received from the citizens on July 30th.

But Mwonzora refutes Ziyambi’s account. “Any excuse that the government is giving is in order to try and disable the team. They are afraid of the strength of the MDC Alliance case, and they want to simply delay. They simply want to disable the team, to hopefully disorient it. But we are very focused, we are very confident that the lawyers of our choice will be representing our candidate, advocate Nelson Chamisa. There’s no question about it.”

The decision, however, lies squarely with the Constitutional Court, whose ruling is final. Comparing it to a World Cup match, Constitutional lawyer Lovemore Madhuku says the MDC should brace itself for any outcome, including defeat.

“It’s like the World Cup … You get to the penalties whichever team has won the penalties, that’s the end of the matter, you wait for the next four years for another World Cup … When you get to a Constitutional Court, you are going to the last, last court as far as the law is concerned. You cannot say after a Constitutional Court ruling, that you are not in agreement. You don’t even need to be in agreement with the constitutional court. You are bound. Whether you agree with it or not, that is what our law says.”

The Constitutional Hearing will be recorded live by the Zimbabwe State Broadcaster for the world to see. According to Zimbabwe’s constitution, the Constitutional Court has 14 days from the day a presidential challenge is lodged to render a decision. That day is up on Friday, August 24th.