Big guns fight Zimbabwe election result in top court

SA advocates join local lawyers and say alliance has solid case

12 August 2018 - 00:05 By RAY NDLOVU
Activists and demonstrators protest outside the Zimbabwe embassy in London after the announcement of the result of Zimbabwe's presidential election.
Activists and demonstrators protest outside the Zimbabwe embassy in London after the announcement of the result of Zimbabwe's presidential election.
Image: Reuters

Top SA lawyer Tembeka Ngcukaitobi has said the MDC Alliance's court challenge of the Zimbabwe presidential election results "looks solid", as all eyes shift to the Constitutional Court to decide on the hotly disputed results of the poll held on July 30.

The Constitutional Court - the highest court in the land - has 14 days to make a judgment on who won the presidential poll.

The challenge to the results moved to the courts on Friday after the MDC Alliance disputed the victory of president-elect, Emmerson Mnangagwa.

Two legal minds from SA, advocates Ngcukaitobi and Dali Mpofu SC, are fighting in the alliance's legal corner. Earlier in the week, the Alliance boasted that it had a top "team of local, regional and international" lawyers who would lead its court challenge.

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 held on July 30," he said.

In an interview with the Sunday Times on Friday, 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 V11 forms - posted up outside polling stations to show the results when vote-counting has finished - were manipulated.

Asked why he had agreed to represent the MDC Alliance in challenging the presidential results, Ngcukaitobi said: "Constitutional rights must be tested for the rule of law to survive, and only courts can lend credibility to the results when politics have failed to produce a credible winner."

"The MDC Alliance is entitled to proper constitutional arguments to advance its cause, and if I can help in a small way then I should."


Local lawyers Chris Mhike, Sylvester Hashiti and Jameson Timba, the latter being MDC Alliance leader Nelson Chamisa's chief election agent, arrived at the Constitutional Court about 30 minutes before the court closed for the day at 4pm, to file papers.

He said it was "not true" he and Mpofu had been barred from representing the MDC Alliance by authorities in Zimbabwe. On Friday, there were strong rumours in Harare that the pair would not be allowed to work in the country as they did not have work permits requisite for them to stand in a Zimbabwean courtroom.

Thabani Mpofu, the MDC Alliance's legal representative, said on Friday the application contained a declaration that the July 30 presidential poll was "not properly conducted".

He added: "It [the election result] is null and void and must be set aside.

"The court must declare the proper result, which is [for] my candidate. In the alternative there must be another election. We would not have come to court if we thought we could not get a fair judgment. It is for the court to make a determination. There's no inauguration until the matter is resolved."

Last week, Mnangagwa was announced the winner of the election by the electoral commission, with 50.8% of the votes. This is being challenged by Chamisa, the MDC Alliance candidate, who was reported to have come second in the election, with 44.3% of the votes.

Pending the outcome of the Constitutional Court case, the inauguration ceremony for president-elect Mnangagwa, which was scheduled to take place today, has been cancelled, according to an announcement by the foreign affairs ministry on Tuesday.

Several heads of state from countries in the Southern African Development Community (Sadc) were expected to attend the inauguration ceremony. The countries included SA, Botswana, Angola and Tanzania.

South African President Cyril Ramaphosa, who is also the Sadc chairperson, was among the regional leaders who initially had confirmed their attendance at the inauguration ceremony.

Ramaphosa's spokesperson, Khusela Diko, said on Friday: "We had received an invite from the Zimbabwe government to participate in the inauguration but now understand that the same ceremony has been cancelled."

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
Legal expert

"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."

The court challenge is the latest episode in an election that has sparked severe tension over the past few weeks.

In the run-up to voting day, Chamisa had said he would not accept a result from the ZEC that did not declare him the winner, amid clashes with the electoral commission.

Post-election violence in central Harare killed six people - the biggest blight on the first election in the post-Robert Mugabe era.

Mnangagwa has vowed to set up an independent probe to investigate the deaths, which have been widely condemned by local, regional and international organisations.