I’m ready for legal showdown with Chamisa − Justice Priscilla Chigumba

ZIMBABWE Electoral Commission (Zec) chairperson Justice Priscilla Chigumba yesterday indicated that she was ready for a legal showdown with MDC Alliance leader Nelson Chamisa, where she will shoot down the vote rigging allegations levelled against her.

Chamisa, in his recent presidential petition to the Constitutional Court (ConCourt), accused the Chigumba-led Zec of vote-rigging in favour of Zanu PF candidate President-elect Emmerson Mnangagwa.

But Chigumba, in her response to Chamisa’s challenge, dismissed as “unsubstantiated” claims that Zec rigged the July 30 polls in Mnangagwa’s favour.

Chamisa approached the ConCourt last Friday, seeking to challenge Mnangagwa’s election victory, citing massive vote-rigging. The matter has been set down for hearing on August 22.

Chigumba accused Chamisa of failing to provide the electoral body with relevant documents to enable her office to properly respond to the application.

“Further still, the applicant’s (Chamisa’s) founding affidavit refers, in several instances, to compact discs (CD) that are said to be attached to the application. No such compact discs were served at the 23rd respondent (Zec) offices either on August 10, or 11, 2018 … it is these absent compact discs and separate bundle of evidence that the applicant avers contain the source material used …” Chigumba said. In her founding affidavit through her lawyers, Charles Nyika and Tawanda Kanengoni, Chigumba said the electoral body followed due processes as provided for in the Electoral Act, especially on issues relating to collation, verification and announcement of presidential election results.

“The process as provided for in the electoral law relating to collation, verification and announcement of presidential election results was followed by the electoral commission as I have illustrated herein above. Any mathematical error that may have occurred in the process is neither gross nor sufficient to overturn the outcome of the presidential election and thus cannot ground the vacation of the declaration I made in terms of section 110(3)(f)(ii) of the electoral Act,” she said.

“I have, in my (Chigumba) deposition thus far, shown that not only were the original V11 and V23 forms used in the collation and verification of presidential election results at the national command centre, but also that the applicant (Chamisa)’s election agents were involved in that process and were given, upon request, access to any V11 and V23 forms for purposes of verification.”

Chigumba further claimed that Chamisa’s calculations pertaining to the total voter population for purposes of the 2018 general election were wrong.

“The applicant’s (Chamisa) calculations are wrong; the total voter population for purposes of the 2018 general election was 5 695 936 and not 5 659 583 as indicated by the applicant. The previously announced number before polling day had been 5 695 706, which figure was adjusted by the addition of 230 voters who had been registered on a BVR kit in Chegutu, Mashonaland West province, prior to the cut-off date for the 2018 general election, but had not been uploaded into the database,” she said.

Turning to the opposition’s claims that there were over 700 000 unaccounted for votes, Chigumba said Chamisa had also gotten his mathematical calculations wrong.

“… the 700 000 votes that the applicant alleges are unaccounted for are directly resultant upon the use of 72% as the final voter turnout in the presidential election and not the correct 85,1%. Furthermore, the figure that the applicant comes up with, 4 032 000, as 72% of the total voter population includes, by necessary implication, every vote that would be cast in a presidential poll including votes that would, on the count, be deemed to be invalid for one reason or another. The figures he indicates as the total votes cast from the announced results, 4 775 640, and from the data on the electoral commission’s CD, 4 774 878, both reflect the total valid votes cast in terms of the announcements and the data on the CD,” Chigumba said.

“The 4 032 000 on the one hand and the 4 775 640 and 4 774 878 on the other are thus totals representing two different kinds of things the former including every valid and invalid vote and the latter only the valid votes. The applicant then proceeds to subtract, in turn, the two elements of the latter category of votes from the former category of votes thus yielding in each instance the 700 000 alleged unaccounted votes without taking account, in that computation, of the difference between the two things he has subtracted from each other.”

Chigumba also said the process of collation and verification of the presidential results was done transparently, while Chamisa’s agents, Morgen Komichi and Jameson Timba “had full access to the results collation”.

“The collation of the results of some polling stations twice was a data capture error whose extent has no material effect on the results of the presidential election. After correction of the double entries the first respondent (Mnangagwa) still meets the statutory thresholds of 50% plus 1,” she said adding: “… the process of collation and verification of the presidential results was done transparently, and the applicant’s agents Mr Morgen Komichi and Jameson Timba had full access to the results collation at the electoral commission’s national command centre.

“As already averred Mr Timba during this process, had occasion to request V11 and V23 forms for several constituencies, he examined those forms and made whatever notes he wished to make, he did not raise any queries with respect to those V11 or V23s … the provisions of section 110 of the Electoral Act are such that the absence of any candidate or his/her election agent does not stop the process prescribed in that section from proceeding to its conclusion.”

Commenting on the V11 and V23 forms impasse, Chigumba said every political party had access to the forms as and when they requested for them but castigated Chamisa for sourcing V11 forms information on social media.

“Applicant also alludes to having sourced the V11 forms from social media, suffice to remind him that a v11 form is obtained through the provision of section 64(1) (d1) of the Electoral Act. The authenticity of his source of data is thus in doubt,” she said.

“As I have already averred, over the two day period, the applicant’s agents had unlimited access to all the original V11 and V23 forms relating to the presidential election and had the opportunity, at their discretion, to make notes from those V11 and V23 forms or to raise any queries with the electoral commission officials where they had problems with the information that was on the V11 and V23s being used by the electoral commission versus what they had through their own election agents from various polling stations.

“Surely, if the applicant had polling agents at the unidentified polling stations he alleges did not have returns affixed, those agents would have been given V11 forms before the return for the polling station is affixed in terms of the law. The applicant does not in this context present his V11 forms and contends that the V11 forms that the electoral commission has are different from what he has …”

The Zec boss further said Chamisa did not indicate at which polling stations he alleges the election returns were not affixed and neither did he explain as to whether he had polling agents stationed at such polling stations, and if so, why no affidavits have been deposed to by such agents in support of his averments that 21% of polling stations were not affixed in terms of the law.

“Having made the allegations the applicant was enjoined to prove it in his founding papers; he has failed to do so … the conclusion made by the applicant, from this bare allegation, is that the electoral commission rigged the presidential election with no evidence furnished and no explanation given as to how the alleged rigging is said to have taken place,” she said.

“An application in motion proceedings ought to make out his full case in his founding affidavit and if, as he has done herein, he makes bald and unsubstantiated allegations, his application cannot possibly succeed.”

She urged the ConCourt to dismiss Chamisa’s application on the basis that it had not been filed in terms of section 93 of the Constitution as read with the ConCourt rules, 2016.

“No valid application has been filed by the applicant challenging the election of the first respondent to the office of the President of the Republic of Zimbabwe, in terms of section 93 of the Constitution as read with the ConCourt rules, 2016,” the Zec chair said.

“In terms of section 93(1) of the Constitution, a challenge to the validity of an election to the office of the President is instituted by way of a petition or application lodged with the ConCourt within seven days after the date of the declaration of the results of the election. Being a period prescribed by statute, the seven-day provided by section 93(1) of the Constitution are reckoned with the inclusion of Saturdays, Sundays and public holidays. The time for lodging a petition in terms of section 93(1) thus expired on the 10th of August 2018.”

“… Being peremptorily limited to the period of seven days after the declaration of the result of the election, any filing and/or service that is done outside that timeframe is, accordingly, invalid with the correlative effect of rendering the entire application fatally and incurably defective.”

Commenting on the alleged disappearance of polling stations on the polling date, Chigumba said: “No polling station disappeared on the polling day. The applicant does not state the names of the polling stations that he alleges to have disappeared on the polling day. No polling stations were created on the polling day. 1HRDC and 2HRDC that the applicant cites as examples of created polling stations are in fact not polling stations. The former stands for ward 1 Hurungwe Rural District Council and the latter stands for ward 2 Hurungwe Rural District Council.”

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