Zimbabwean opposition has good court case against ‘president’

Zimbabwean opposition has good court case against ‘president’

By Prof Michelo Hansungule

Nelson Chamisa has a formidable case against his opponent President Emmerson Mnangagwa, presumed winner of last week’s presidential elections. Politics aside, Chamisa’s election petition confirms his remarks earlier in which he declared that he had won the 2018 elections. Chamisa’s petition chronicles a litany of allegations of irregularities and blatant violations of the Constitution and the electoral Act by ZANU PF.
There are at least three killer punches in the petition which really would leave Mnangagwa scampering for cover. First is the accusation in paragraph 4.5.14 against ZEC Chairperson Judge Priscilla Chigumba that after she was appointed Chairperson by President Mnangagwa on 1st February 2018, she celebrated the appointment on February 3 by accepting President Mnangagwa’s now typical insignia the scarf of the Zimbabwe flag which was Mnangagwa’s. Wearing this scarf, Judge Chigumba in breach of regulations prohibiting ZEC staff wearing materials associated with one of the candidates campaign material.
Second is allegation that Chamisa’s election agents were not called to sign the presidential results before they were announced as required by law. Viewers who watched the ZEC announcements of the presidential results will recall the drama that took place shortly before the ZEC returned to the podium to announce the last outstanding results, Chamisa’s election agent also MDC Chairman took to the floor to announce that he had not signed the results. In the petition, Chamisa avers that this was after the ZEC CEO promised to call the agent so that he can verify and sign the results before they were announced yet Judge Chigumba and her colleagues proceeded to announce the results ignoring the statutorily mandatory signatures only to ask for them after the announcements.
Third is the unbelievable allegation in paragraph 6.5.3 that even based on their own figures, the results they announced do not match. He alleged ‘…..The evidence attached hereto and marked ‘1 Series’ shows that more people than were registered voted. ………..Further, there are polling stations where ZEC there was a plus 90% turnout. This is unimaginable. In those areas where there was a plus 90% turnout, first respondent (Mnangagwa) was given a total of 352 897 votes……….’. He attached ZEC’s own analysis sheet.
The petition makes several other allegations including the biased role of the security forces which he accused of promoting the interests of only the ruling party. In particular, he mentions the deplorable event of Wednesday 1st August when the military opened live fire in Harare in response to unarmed MDC demonstrators who were calling for release of the results.
It is common knowledge that since independence ZANU PF has been using the army and other security forces to maintain their grip on power. This is what Chamisa is talking about when he complains about the role of the security forces during the elections. Of course it was good for the army to step in as they did and remove Mugabe from power because without that act, Mugabe would still be in power. No one, not even Mnangagwa would have removed Mugabe from power had the army not done what it did. Everyone agrees that it was too much Mugabe had to go. But removing Mugabe from decades in power is one thing and trying to illegally keep power under the facade of Mnangagwa or is it Chiwenga is quite another. There was absolutely no basis for the army to have used live ammunition on civilians on 1st August.
Besides the security forces, Chamisa makes several allegations against the conduct of state media which is another well known story of primitive bias. Just like in Zambia, state media in Zimbabwe have no clue the difference between ‘state media’ and ‘government media’. During elections, so-called ‘state media’ behaves like it is ‘government media’ openly biased in favour of government which is illegal.
Distribution of seed and other farming requests especially to people in rural areas is another serious allegation raised in the petition. He argues that distribution of farming inputs to people in rural areas under the facade of empowering rural people unduly advantaged the first respondent. Anyone with basic knowledge of rural areas in Africa and particularly with massive poverty levels in these areas should easy understand the reason behind sudden ‘love liaisons’ between governments and people during elections. Coupled with strong relationships between chiefs and governments in these areas, and the influence chiefs exert on people in their areas, the story is complete.
Of course we are still to hear from Mnangagwa and ZEC their responses. The issue, however, is that based on previous election petition judgments, Chamisa no doubt has a edge over Mnangagwa. In previous election petitions, judges in several jurisdictions have dismissed petitions challenging results of elections on the ground that while there were irregularities and even illegalities, overall the elections were substantially free and fair. What this means is that courts mean is that no election is free of irregularities and that courts are not there to nullify every election based on proof of any irregularity.
But this is different in the case of the Chamisa-Mnangagwa election. Mnangagwa’s win was only with the slightest of margins. In previous case law, courts have if the difference between the loser and the winner is very large, they will be reluctant to invalidate the election merely upon proof of an irregularity. This is also in line with the decision of the George Bush versus Al Gower case in which the court seems to have suggested that election petitions in their nature are political.
But again, this case is different. It is not even the difference between Mnangagwa and Chamisa which is at issue but the .3% margin of victory Mnangagwa allegedly got over the 50% constitutional threshold to avoid a run-off which is the issue. Based on a litany of African cases such as from Shehu Shagary case in Nigeria, the 2001 Col. Dr. Besigye Case in Uganda through to the first Raila Odinga versus Uhuru Kenyatta case, the principle has been the same, namely, that courts can interfere with the electoral body’s declaration in circumstances where there is proof or material irregularity which if it had not occurred, the result would be different. Imagine if Chamisa manages to prove ay of the allegations he has made, namely, that it did occur and that it was material to the outcome which ZEC announced, obviously it could lead to a different result.
But of course there are other factors key among which is the judiciary and particularly how independent it is? We are victims of this in Zambia. The other is the elephant in the room i.e. the military. This makes the elections in Zimbabwe not just a simple case of elections. But there is no doubt that this is a test case in Zimbabwe and looking at the issues the petition raises, a test case for the way in which elections should be conducted in Africa as a whole.

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  • comment-avatar
    Ftruth 4 days ago

    @zambiaisours you are surely clueless

  • comment-avatar
    Charles 5 days ago

    What we heard last week from the vice-president of the United Party for National Development left us dumbfounded. We could not believe that at a time when Zambians are desperately searching for a reasonable alternative government, Mr Geoffrey Bwalya Mwamba could issue an insensitive statement on behalf of the biggest opposition party.
    In case you did not follow this story, Mr GBM, as he prefers to be called, told Zambians that in the next elections, they should vote for him and his president Hakainde Hichilema because they are already rich, and hence, they would not steal public resources if they formed government.
    In his actual words, Mr GBM said: “My advice to the Zambian people is that in the next election, they should vote for [a] leadership that will look after them, which is UPND. Look at what has happened now in South Africa, the anchors now decided to pick on Cyril Ramaphosa who is one of the richest Africans because they know that when he gets into power, he will not go and steal their money. This is the same thing that I am appealing to Zambians that those who are rich, those who are comfortable, their priority is not to come and make themselves rich, they are already rich, all they want is to leave a legacy.”
    Without a doubt, this level of thinking capacity is the reason why some people opted to vote against the UPND or not to vote at all in the last election. People had to ask themselves how they would have to explain to the world why they put such a scatterbrain in power.
    Hakainde Hichilema might be a good leader, he may even make a better President than what we currently have, but he is among the worst politicians Zambia has ever seen. Combining his political incompetence with GBM’s IQ is a disaster that UPND may never heal from.
    When GBM said vote for us who are rich because we will not steal your money, we did not rush to condemn him because people make mistakes in their speech all the time. We all do and sometimes never realise until a neighbour cautions us. So we waited to see what Mr Hichilema and the rest of the UPND leadership would do to correct that statement, but there was no retraction. In other words, the UPND see nothing wrong with their vice-president’s reasoning; they have endorsed it so much so that GBM repeated himself on live TV.
    If that is the official party position, we are here to tell the people of Zambia NOT to make the mistake of voting for UPND in the next election. One, because they are insulting the intelligence of citizens, two, because they are mocking the poor people of this country and three, because they are a bunch of selfish liars.
    In his statement, GBM is practically saying poor people are thieves by nature because they have to steal in order to live comfortably; as such they must not be allowed to serve in government positions. Can a reasonable leader think like that? Is that a person that one can be proud to appoint as a presidential running mate?
    This statement is worse than tribalism and we wonder how Mr Hichilema feels considering that he is not a poor man himself. Is this how he also looks at the poor people of Zambia? The UPND leadership needs to know that there are plenty of poor Zambians who came from poor families, whose parents were peasant farmers, but they liberated the country and left government still poor.
    If you look at Dr Kenneth Kaunda, what wealth did he have before becoming Republican president and what wealth did he accrue from government? What properties are there for anyone to point at which Dr Kaunda, a poor man, stole to enrich himself and his family? So what is GBM and his UPND talking about?
    If you have a koswe in government who is stealing to enrich the entire generation of his family, that cannot be a basis for saying poor people go into government to steal. That is an insensitive and segregatory statement which must be condemned.
    And GBM must not think Zambians are so dull and forgetful. He is talking about the legacy that he would like to leave in government as a rich man, but he was already rich when he served the people of Kasama as an MP, what legacy has he left in Northern Province other than dishing out money during campaigns to win votes?
    Others may forget, but we have a very good record keeping system and we still have a recording of what GBM said when he was Minister of Defence in this very PF government. Five years ago, GBM was accused of giving orders to Zesco to award a tender to his family company for the supply of electricity poles. He had difficulties defending himself, all he could say was that he didn’t do it but insisted that his children could not stop doing business just because he was in government.
    On Tuesday evening, October 16, 2012, GBM was interviewed by a UK-hosted online radio station called CrossFire Blog Radio. The interviewers Mueti Moomba, Larry Mweetwa and a Mr Gershom wanted to know why GBM joined politics when he was already a successfully businessman. The then minister who is now UPND vice-president said this:
    “What made me start thinking about going into politics was the way I was ill-treated by the previous government, namely the MMD. I was so frustrated to a point that probably being in politics may only be the best thing because whatever I did outside couldn’t work out.
    In 2005 is when I said ‘probably I should go into politics’ because the business was becoming very difficult to operate. I could see that only those who were connected to politicians were the ones benefiting. So that is when I joined active politics. I wanted to expand so much in business…”
    The full length of GBM’s interview is available on the Internet for those who think we cooked this up. Let Zambians who have access to Google use the search words “I entered politics for business – GBM” and see what else the UPND vice-president said.
    So when GBM says in the next election citizens must vote for him and his president who are rich because they cannot steal, how foolish does he think Zambians are? How dull do we have to be to expect that GBM will spend so much money in campaigns and not want to recoup losses from his business through government contracts?
    In fact, we have to state here that rich politicians who use their own money to campaign are more dangerous than those who go to beg from the corporate world.
    It is true that after sponsoring a political party into power, private companies hold government to ransom; it leads to State Capture, but that only happens when leaders of such a ruling party are dunderheads.
    Under a sober government, political party sponsors can be tamed and disciplined if they demand too much from state coffers through dubious contracts, but a president who sponsors himself into power has unlimited access to the Treasury and will do as he pleases.
    That is why we are concerned that GBM could be making such a statement and the UPND watches. Once again, our advice to Zambians is that, unless Mr Hichilema distances himself from the careless statement from his deputy, or indeed if he picks a sober running mate for the next election, citizens must not vote for him.
    Yes, we understand and agree that the PF has failed and it must go, but it is also our duty to warn citizens when we sense danger in the alternative government that people are talking about.
    GBM has eaten so much from previous governments, but claiming that rich and fat people like him can’t steal is cheap. If GBM wants to leave a legacy anywhere, let him try writing a book of insults because in that area, the whole country respects him.

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  • comment-avatar
    zambiaisours 5 days ago

    Aahhhaa Ba Hansungule, HOW DO YOU SEE these as very strong points without interpreting with them with respect to the law? HOW DOES 90% voter turnout with majority of votes going to one candidate amount to rigging without proof that the 90% was fictitious?? WE SAW THIS IN 2016 IN ZAMBIA,FIGURES WITH SIMILAR VOTER TURN OUT WHICH BOOSTED THE OPPOSITION, CAN WE THEN SAY THAT RIGGING WAS PERPETRATED BY THE OPPOSITION?The scarf is national symbol with a country’s flag,NOT a party symbol so any Zimbabwean can wear it!! If MDC election agent REFUSES TO SIGN ON THEIR OWN DEFEAT, should the ZEC hold the nation in suspense forever,especially when violence was being perpetrated by the same losers??