Zimbabwe – Update on Constitutional Court proceedings

Zanu has given its submission as the first respondent. Its legal tean led by Uri want the MDC application dismissed on a technicality.

It is their submission that they were served with papers on the 8th day. This is a fact but the delay was not because of MDC but the sheriff who delayed in serving them.

– Zanu also claim MDC must have applied for the recounting of the votes to get primary evidence.

Court has taken a break and Zec will be giving its evidence soon. MDC lawyers would be given an opportunity to rebut their submission and respond to Zanu pf and Zec submissions.

Mnangagwa’s lawyers keep referring to Dr Otumba Edgar Ouko as “nothing more” than an expert on fish migration, who knows nothing about elections. This has been repeated many times in the newspapers. It is simply not true. I doubt they are malicious, just ignorant.

His PhD in Applied Statistics focused on fish migration. That is what applied statistics means, It is applied to observable phenomenon! Dr Otumba is a world class statistician whose evidence was presented before the Kenya Supreme Court exposing statistical irregularities in the 2017 Presidential Elections. The case was won on that evidence.

The lawyer representing ZEC, Mr Kanengoni says the applicant must place before the courts enough evidence with enough clarity, to substantiate all his claims.

Kanengoni says Chamisa’s legal team filed an incomplete application, which had missing papers. He says the applicant tried to serve papers on the 10th of August without the assistance of the sheriff.

The figures presented by Chamisa showing a variance of figures has been mischaracterised by the applicant. The only variance is the total figure. There is no indication that all the teachers who were deployed as election officials were registered, says Kanengoni.

ZEC lawyer saying: ‘We don’t know how they got their data, how they did comparisons’ talking of Chamisa’s petition and their data.

He continues by saying that Chamisa’s petition makes an allegation that in some of polling stations there was over voting i.e., larger vote count than number of registered voters. He rebuts it strongly saying “That is not true…..We have given the V11 forms with Schedule….NONE of the polling stations have over voted” .

And takes the Court through an example of one polling station data and says it should conclusively put to rest the allegation of over voting.

Kanengoni said there is effectively no validly filed challenge. The jurisdiction of the court has not been properly invoked.
Mr.Kanengoni is saying the Applicant is misleading the Court by saying there are blank V11’s.

He walks through a V11 example in detail and says there are cases where multiple V11 pages are present attached in a bunch if there are a large number of ballot boxes and the applicant is showing only one page and saying it is a blank or orphan V11 which is a false claim, according to him.

‬ The V11 forms were also signed by all polling agents including MDC Alliance agents, says Kanengoni.
Adv. Kanengoni: The scarf issue was just thrown in for mischief.

ZEC lawyer Kanengoni insists ZEC made the correct declaration that Pres Mnangagwa won.

“The relief sought by Chamisa -that he be declared winner – cannot be granted as it is not supported by evidence”
Mr Kanengoni said the issue of voters being coerced to be assisted has nothing to do with the result but was just included to cast aspersions against the commission. He said there are no affidavits by assisted voters claiming that they were coerced included as evidence.

Kanengoni summarizes saying: Figures do not say what applicant says they do. uses the wrong voter turnout. uses and mischaracterizes v11 forms to say they were forged, missed, blank. Not a single name has been given for substantiating claim of “missing” polling stations instead providing incorrect information in a particular light to the Court.

He adds: Net effect is there is no basis for applicant’s relief, standard of proof not met, evidence not there before you. Application is so deficient of evidence and particularity that it cannot give rise anything to the Order sought by the Applicant and it is prayed to be dismissed.

CJ asks Kanengoni what do you say about repeated allegation of ZEC changing results. Kanengoni says there were minor and immaterial “data capture” errors were fixed with no significance to the final declaration.

He adds what is before you that what is before the Court is to overturn the results but there is no evidentiary burden of proof to overturn the results with only minor, clerical errors done and the results remain and are true. The Applicant should have opened a ‘smoking gun’ but did not do it. ZEC’s data

“What about the allegation pertaining to Mash Central? The alleged influx of voters beyond 6pm”, one of the Judges asks.
Kanengoni says that can be answered by saying that there are anomalous voter behaviour in certain places at certain times. He says behaviourial scientists should look at it and it has nothing to do with ZEC if voters chose to come at a particular town.

Adv. Kanengoni admits to minor clerical errors which constitute 0.1% but insists that it does not change the overall result.