Memorandum to Advocate Thabani Mpofu

David Coltart

3rd September 2018

There has been considerable propaganda employed since the hearing of the Presidential election challenge by Nelson Chamisa against Emmerson Mnangagwa which has sought to discredit Chamisa’s case. Most of the discussion has centered on the main grounds used by the Constitutional Court to dismiss Chamisa’s case, namely the alleged absence of so called “primary evidence”.

There is however another aspect of the case which was entirely overlooked by the Constitutional Court in its judgment, namely the serial breaches of the Constitution and Electoral Act by ZEC. Chamisa’s case was severely constrained in two ways in this regard in that, firstly, government refused permission for Advocate Jeremy Gauntlett SC QC to appear and ,secondly, because it restricted Advocate Thabani Mpofu to a 20 minute opening address which necessitated that he focus entirely on the rigging aspect of the case. What isn’t known is that Advocate Gauntlett was going to argue the Constitutional points, which he was prevented from doing. Furthermore the Constitutional Court rules are clear that in certain cases the Court can allow an advocate to argue for more than 20 minutes. If ever there was a case where this should have been invoked it was this case, but the time restriction imposed on Advocate Mpofu was such that he had to choose what was after all the main thrust of the Chamisa case, namely the rigging.

There are many who now believe the propaganda and that there was “no evidence” of electoral fraud. Ironically the Constitutional and Electoral Act breaches provided the most clear cut evidence of breaches of law, nearly all of which had a profound affect on the outcome of the election.

If one takes just one example – namely the ZBC bias in brazen breach of section 61(4) of the Constitution, and ZEC’s failure to do anything about it, as they were required to do in terms of section 160K of the Electoral Act – one can see how that breach alone was sufficient to invalidate the election. In an election where there is such a narrow margin of victory – in Mnangagwa’s case only ,6% or 30,000 votes – it is obvious to an objective, rational mind that the ZBC bias would have influenced far more people than just 30,000 bearing in mind that it is the only TV station in the country. There was no dispute about that bias – in fact judicial notice could have been taken of it. Nearly all the observer mission reports spoke about it and there were detailed statistics available from neutral NGOs about the bias. Any honest observer could not seriously argue against that bias.

However this issue was not even touched on by the learned Judges – and yet I stress it alone should have invalidated the election. In my view the failure by the Constitutional Court to allow sufficient time for these issues to be argued and its failure to consider them in the writing of its judgment are both grievous misdirections.

In preparing for the case I provided Advocate Mpofu with a memorandum which detailed all of the breaches. Most of these were included in the founding papers.

For the record and history I now attach the original memorandum I prepared.

MEMORANDUM TO ADVOCATE THABANI MPOFU

1. INTRODUCTION

In my conversations with you on the evening of the 5th August we discussed the two main broad thrusts of the Election petition, namely firstly to set out all the breaches of the Constitution, Electoral Act and Regulations by ZEC prior to the count and, secondly, to expose the fraud involved on election day and in particular in the counting and announcement of the votes. This memorandum deals with the breaches to the Constitution and Electoral laws from my perspective.

2. CONSTITUTIONAL LAW BREACHES

2.1 Lack of Independence of the Zimbabwe Electoral Commission

In terms of Section 235 and 236 of the Constitution (ZEC) is to be independent and must exercise its functions “without fear, favour or prejudice”. Members of ZEC in terms of Section 236 are not to act in a “partisan manner” or “further the interests of any political party” or “prejudice the lawful interests of any political party”.

An independent Electoral Commission goes to the very heart of a free, fair and credible election and we need to make the point that through the partisan acts of the commission’s chair herself and through the acts of omission and commission and the commission as a body it was partisan in favour of Mnangagwa and ZANU PF and acted in a manner prejudicial to Chamisa and the MDC Alliance. Details of these actions will be shown below in relation to the breaches of the Electoral Act and Regulations.

2.2 ZEC’s failure to conduct the elections, “transparently and in accordance with law”

In terms of Section 239 (a) (iv) ZEC is obliged to conduct elections “transparently and in accordance with the law”. On a number of occasions whilst ZEC had no clear obligation to act in terms of the Electoral Act, for example to allow political parties to examine and test the ballots, but had the obligation in terms of the Constitution to act transparently which it failed to do. Furthermore as will be explained below its serial breaches of the Electoral Act meant that it did not conduct the elections in accordance with the law and that in itself should be fatal to the validity of the elections.

2.3 Failure of State owned media of communication to comply with Section 61(4)

Section 61(4) of the Constitution states that all State owned media of communication must “determine independently the editorial content of their broadcasts”, “be impartial” and afford fair opportunity for the presentation of divergent and dissenting opinions”.

The ZBC, which is a State owned broadcasting corporation, created by Statute, was a propaganda arm of Mnangagwa and ZANU PF and brazenly breached section 61(4) for the entire duration of the Election Campaign. Furthermore the Herald and the Chronicle, directly State owned media of communication, were likewise in breach of this provision. Given that there are no other television stations in the country and that the Herald by its own admission is the largest circulation daily in the nation this was a serious breach of the Constitution which also went to the heart of the election. It should also be pointed out that well over 60% of the electorate in the rural areas only receive their information from the ZBC so this breach had, likewise, a profound effect the electorate’s outlook and their ability to understand the divergent views and dissenting opinions offered by parties and candidates other than ZANU PF and Mnangagwa.

2.3 Conduct of members of security forces

Section 208 (2) of the Constitution states that security services may not in the exercise of their functions “act in a partisan manner” “further their interests in any political party” or “prejudice their interests for any political party”.

As can be shown in the report received from the Zimbabwe Democracy and Institute and the Open Society Initiative for Southern Africa mid July entitled “ZANU PF / Military Deterrence of the village vote” there is a substantial body of evidence which shows that the military were deployed throughout the country prior to the vote acted to promote the interests to ZANU PF and Mnangagwa.

Prior to the announcement of the results the actions of the military in the streets in Harare on the afternoon on Wednesday the 1st August 2018 demonstrated the partisan nature of the military.
Section 208 of the Constitution states that only the President has the power to authorize the deployment of Defence Forces in Zimbabwe. This Section must be read in conjunction with Section 208 (2) (d) which states that Security Services may not in their exercise of their functions “violate the fundamental rights or freedoms of any person”, which of course must include the right to life and the right to demonstrate peacefully. The breach of provisions, although conducted after the holding of the election, were conducted prior to the announcement of the result and accordingly are part of the electoral process.

Such a fundamental breach of clauses 213 and 208 of the Constitution goes to the heart of the Electoral process. There can be no constitutionally compliant electoral process which has seen the deployment of security services in a partisan manner.

3. ELECTORAL ACT BREACHES

3.1 Introduction

I have chosen to go through the Electoral Act sequentially rather than deal with the chronological breaches of the Act by ZEC. Accordingly I have dealt with the various breaches starting at the beginning of the Electoral Act. No doubt my examination of the Act is not exhaustive but these are the particular breaches that I have noted.

3.2 Section 3 – General Principles Of Democratic Elections : Unfairness In Provision Of Information

Section 3 (a) of the Electoral Act states that elections are to be conducted “freely, fairly and transparently. Section 3 (c ) (v) states that every political party has the right to have “reasonable access to all material and information for it to participate in every election”.

During the election campaign two events happened which demonstrate the unfairness of ZEC in favour of ZANU PF/Mnangagwa and prejudicial to the MDC Alliance/Chamisa.

It is common cause that Mnangagwa obtained access to the unique combination of voters’ ward details and cellphone numbers. The Sms’s were sent out to voters’ cellphones encouraging them to vote for ZANU PF. When challenged about this ZANU PF said that they had got this data from their own sources from people who had indicated an interest in supporting ZANU PF. There were numerous reports at the time by people in response to that stating that they had never given such information to ZANU PF nor had they ever expressed any interest in supporting ZANU PF. Others pointed out that their addresses had only changed recently and that the only organization which had their addresses were ZEC. Cellphone service providers denied that they had given out the information to ZANU PF or anyone else for that matter. In other words the only possible source with the unique combination of ward details and cellphone numbers could have come from was ZEC. All voters who registered were required to give their current address and their cellphone numbers to ZEC who held that information. It is apparent from this that ZEC released that information to ZANU PF unfairly and in a discriminatory fashion in favour of ZANU PF and Mnangagwa.

In direct contrast to this Chamisa and the MDC Alliance requested the full BVR version of the Voter’s Roll generated in terms of Section 20 (2) of the Act as read with section 9 of the Electoral (Voter Registration) Regulations SI 85/2017. The only voters roll provided to the MDC Alliance and Chamisa was that which contained names of voters, their date of birth, national registration number, sex and residential area. Photographs were not supplied. Section 3 (c )(v) makes it clear that all parties were photographs were necessary so that random checks for duplication could be done to ensure the integrity of the voters roll. That right was denied the MDC Alliance and Chamisa.

3.3 Section 18 as read with Section 20 – ZEC’s responsibility to compile voter’s rolls

Section 18 of the Act gives ZEC the responsibility to register voters who are qualified to register and to vote in terms of section 1 of the Fourth Schedule of the Constitution of Zimbabwe. It is trite and common cause that only voters who are eligible should be registered and that no duplicate entries are allowed by law.

It is also common cause that the voter registration exercise was done in the course of the few months leading up to the calling of the election, in other words was done recently and one would expect that all the details would be up to date. A variety of audits of the voters roll prepared by ZEC were done. In one conducted by ZESN it was found that 11% of voters could not be found, which, when extrapolated, amounts to some 625 000 voters. In other audits done by civic organizations the voters roll was found to have serious discrepancies including duplicate voters, false I.D. numbers and false surnames. In doing so ZEC breached sections 18 and 20 of the Electoral Act, as read with Section 1 of the Fourth Schedule of the Constitution of Zimbabwe, by allowing names of voters to be recorded on the voters roll who were ineligible to be so registered in terms of the Constitution.

3.4 Section 11(3) (c) – Wearing of partisan clothing

Section (11) (3) (c) states that no Commissioner shall “knowingly wear any article of clothing that is reasonably likely to be associated with a political party or candidate contesting any election”. It is common cause that the Chairperson of ZEC, Judge Priscilla Chigomba was appointed by Mnangagwa on the 1st February 2018. On or about the 5th February 2018 Judge Chigumba was given and allowed herself to be photographed in regalia which was used by one of the candidates in the election Emmerson Mnangagwa. The scarf was used in all Mnangwagwa’s promotional material and became symbolic of his campaign. Judge Chigumba was accordingly guilty of wearing an article of clothing associated with a candidate in breach of this Section. Also have regard to section 11(2)(d) which makes it clear Commissioners must not do anything which gives rise to a “reasonable apprehension of bias”.

3.5 Section 21 (4) – Provision of the Voters Roll to Parties intending to contest

Section 21(4) states that the Commission shall provide to every political party “that intends to contest the election” a copy of the voter’s roll “to be used in the election”.

Section 21(6) states that within “a reasonable period of time after nomination day” the Commission shall provide every nominated candidate a copy of the electronic form of the voters roll “to be used in the Election”. When read concurrently it is clear that the intention of the legislature was to ensure that every party “intending to contest the election” provided with a voters roll prior to nomination day. Although the section does not specifically state “prior to nomination day” that can be deduced by the fact that party intending to contest the election is one who has not yet contested the election; the intention becomes reality on nomination day. Secondly section 21(6) talks about the provision of a voter’s roll AFTER nomination day.

It is common cause that the Commission failed to provide the MDC Alliance and Chamisa with a Voter’s Roll prior to the nomination day. In fact the voters roll was only supplied some four days after nomination day. The failure to provide the voters roll meant that on nomination day and prior to nomination day Chamisa and the Alliance was unable to check the names of prospective candidates and the people sponsoring them on the voter’s roll. That directly resulted in a number of Council candidates (some 49) having their nominations rejected because their details did not comply with the voters roll.

3.6 Section 21(4) – Failure to supply MDC Alliance with the same voter’s roll to be used in the Election

There is a second and separate breach of section 21(4) relating to the words in that Section “every Voters Roll to be used in the election”. The intention of the legislature clearly was to provide political parties with a copy of the voters roll identical to the voters roll that is ultimately used in the election.

It is common cause that on Thursday the 26th July 2018, ZEC arbitrarily issued a new voters roll different to the one handed to Chamisa and the MDC Alliance in June and it was this voters roll, not the original one, that was used in the election held on the 30th July 2018. Although this voters roll was substantially the same as the original one given to the MDC Alliance it did have some significant changes. One in particular is that some 10 100 extra voters were added to the voters roll in Mashonaland West Province. These voters were not on the original voters roll handed to the MDC Alliance.

The entire purpose of this section is to ensure that political parties have accurate details of the voters roll.

3.7 Section 21(4) as read with Section 20 – Failure to provide a complete Voter’s Roll

Section 20(2)(c) of the Electoral Act states that “Voter’s Rolls shall specify that such other information as may be prescribed or as the Commissioner considers appropriate”. The voters roll supplied to the MDC Alliance and Nelson Chamisa in terms of section 21(4) of the Act did not contain any biometric data on it, such as photographs and fingerprints. Section 20(2) (c) states that Voter’s Roll shall provide the other information such as biometric data, accordingly this is yet a further breach by ZEC. Section 9(c) of the Electoral (Voter Registration) Regulation SI 85/2017 states that the voter’s photographs” is to be included in the voters poll. This information was not supplied to Chamisa/MDC Alliance.

3.8 Section 40B – Voter Education

Section 40B (1) states that the Commission shall have function of providing unbiased voter education. In terms of Section 40 (B) (2) the Commission, “shall produce its own voter education materials for the use in the voter education”.

It is common cause that ZANU PF asked for permission to use sample ballot papers to engage in its own voter education process. ZEC Commissioner Dr Qhubhani Moyo issued a statement that ZANU PF made this request which permission was denied by ZEC to ZANU PF.

It is common cause that on Thursday the 26th July and Friday the 27th 2018 several ZANU PF candidate MPs were found in possession of reams of sample presidential ballot papers which ZANU PF had printed and packaged and distributed to its candidate MPs in breach of both Section 40 B (2) and (3) of the Act. Section 40 B (3) gives ZEC the right to “permit any person to assist in providing voter education” which clearly was denied. Furthermore ZANU PF produced its own voter education materials in breach of Section 40 B (2) of the Act.

3.9 Section 57 – Alphabetical order of surnames on ballots

Section 57 (a) states that every ballot paper shall be “in the form prescribed” and in terms of Section 57 (a) (i) the names “of all the duly named candidates” are to be in “alphabetical order of surnames”.

In terms of the first schedule, Form V10, of the Electoral Regulations set out in Statutory Instrument 21/2005, updated on the 1st June 2018 – The Presidential Ballot Form – it is prescribed that the Presidential Ballot is to be on one page. In addition in terms of Section 3 (11) of the same regulations horizontal segments “shall equate to the number of candidates nominated for the election” and there shall be four vertical segments containing the names of the candidates, name of the party, the symbol of the party, passport sized photograph of the candidate.

It is common cause that ZEC produced a presidential ballot that was not on a single page with four vertical columns as described in the Act and Regulations but with some ten vertical columns and designed in such a way to give a preference to one candidate, namely Mnangagwa, in itself a breach of both the alphabetical order of the surnames required in terms of Section 57 (a) (i) of the Electoral Act and section 235 (1)(c) and 236(1) of the Constitution which requires ZEC not to act without fear, favour or prejudice or to favour the interests of any political party or prejudice the interests of any other political party.

Had the law been complied with Mnangagwa would have been number 15 in alphabetical order, namely in the middle of the page and somewhat confusing perhaps for an illiterate or semi literate person. The breach of the clear dictates of Form V10 and Section 57 (a) (i) of the Act and Section 3 (11) of the Regulations is designed to give one candidate a material advantage.

3.10 Section 64 – Fixing of polling station returns on the outside of polling stations

Section 64(1) (c ) states that presiding officers of polling stations are obliged to “affix a copy of the polling station return on the outside of the polling station so that it is visible to the public who wish to do so may inspect it and record its contents”.
In a report published by ZESN it was found that in only 79% of polling stations this law was complied with. In other words at 21% of polling stations presiding officers did not post polling station returns on the outside of polling stations. Furthermore in several polling stations countrywide polling station returns which had been posted were pulled down, and in some cases destroyed before members of the public were able to inspect the same and record the contents.
The effect of this has been that both the MDC Alliance, supporters of Nelson Chamisa and civic organizations have been prevented from taking photographs of the Form V11’s posted outside of polling station returns to enable the same to be verified against the forms ZEC states are the original forms.

3.11 Section 73, 74 and 75 : Postal Ballots

Section 73 (2)(b)(ii) states that a member of the disciplined forces may apply for a postal ballot but such application can be sent as part of a batch by the Commanding Officer on behalf of that member of a disciplined force.

3.11.1
In terms of section 74(3) once an application for a postal ballot has been received by the Chief Elections Officer and approved The Chief Elections Officer of ZEC shall deliver it to “the nearest post office and dispatched by registered post” or “a commercial courier for delivery to the applicant”. Accordingly this section mandates that all postal ballots are to be addressed individually to the applicants as a members of the disciplined forces, not to that applicants’ Commanding Officer or his station.

3.11.2 Section 75 of the Act states that once the postal ballot has been received by the member of the disciplined forces, that member has the right in terms of section 75 (1)(a) to vote secretly and then, in terms of section 75(1)(d), to “dispatch the covering envelope by registered post or by a commercial courier service, back to the Chief Elections Officer.” In other words, a postal ballot is to be dealt with secretly by the member of the disciplined forces at a time and place of his or her choosing and then posted back to ZEC by such member of the disciplined forces.

It is common cause that at Ross Camp in Bulawayo members of the Police were summoned by their Commanding Officers and ordered to vote collectively and to place their ballots in boxes which would then be returned collectively by such Commanding Officers to ZEC. What is not common cause is whether the Policeman were forced to sign in front of their Commanding Officers but that is immaterial. ZEC breached the law by posting the postal ballots, not to the individual applicants, but to their Commanding Officers in batches. This was done throughout the country. Approximately 7 500 ballots were processed in this manner.

3.12 Section 110 – Counting of Presidential Ballots

In terms of section 110 (3)(c) Chief Elections Officer, after receiving all the Presidential Constituency Returns, shall “verify them, having given reasonable notice to each

Candidate or to his or her Chief Election Agent of the time and place at which the returns are to be verified “In terms of section 110 (3)(d) at the time and place notified for the verification of Constituency returns, The Chief Elections Officer, in the presence of their candidates, their Chief Election Agents and their Observers, “shall display each Constituency returns to those present and shall, on request allow the Chief Election Agent to make notes of the contents of each constituency return”. In terms of section 110 (3)(c) once the verification process has been done the Chief Elections Officer shall “in the presence of Chief Elections Agents” add together the number of votes by each candidate as shown in each constituency return.

It is common cause that Chamisa’s Agent was not notified of the date and place of verification, was not given an opportunity to make notes of the contents of each constituency return and was not present when the number of votes in each constituency return was counted.

Indeed the entire process of collating, verifying and counting the presidential ballots was done under a cloud of secrecy and only announced once the counting had been done and results announced.

3.13 Section 134 – Undue influence, threats to voters, injury, damage, harm or loss

Section 134 (1) of the Electoral Act prohibits people from making use of threats or threatening any “injury, damage, harm or loss”.

Throughout the campaign both soldiers and ZANU PF operatives threatened rural inhabitants with injury or the loss of their landholdings or the loss of food aid if they and their communities did not vote for Mnangagwa and ZANU PF.
Despite widespread reports of such threats being made ZEC took no action to speak out against it, to investigate the same or to report the same to the ZRP for prosecution.

3.14 Section 136 – Bribery : provision of seeds and fertiliser packs

Section 136 (1) (c) makes it an offence for any person who, directly or indirectly, by himself or herself or by any other person makes “any gift” to any person in order “to induce such person to procure the return of a candidate in the election or the vote of a voter at an election”.

It is common cause that in the weeks prior to the election Mnangagwa and ZANU PF candidates systematically distributed seed packs and fertilizer, purchased using public monies, to rural communities to induce them to vote for Mnangagwa and ZANU PF candidates.

Notwithstanding the fact that these practices were widespread and well reported and ZEC failed to take any action to prevent such practices or to repeat the breaches to the ZRP for the prosecution of those responsible for such practices.

3.15 Section 160 J and K : Media bias

Section 160 J (1) states that all broadcasts and print publishers shall ensure that all “political candidates and parties are treated equitably”, that reports are “factually accurate, complete and fair”, that a clear distinction is made in their news media between “factual reporting on the election and editorial comment on it”, that “inaccuracies are rectified without delay and with due prominence; that parties and candidates “are afforded a reasonable right of reply” and that news media do not “promote political parties or candidates that encourage violence or hatred against any classes of persons in Zimbabwe”.

In terms of Section 160 K (1) the Commission is compelled to “monitor the Zimbabwe News Media between any election period to ensure” compliance by all media.

ZEC failed to issue any press statement nor took any action to ensure that the ZBC, Herald and Chronicle observe the positions of Section 160 J. Indeed ZEC turned a blind eye to these provisions of the Act.

The failure by ZEC to ensure that there was an impartial and fair coverage of the election goes to the root of the election, particularly when regard is had to section 61(4) of the Constitution.

3.16 Section 177 – Election not conducted in accordance with principles

Section 177 makes it clear that simple mistakes or non compliance with the provision of the Act are not alone sufficient to validate election. It must also be shown that such non compliance is not in accordance with the principles laid down in the Act and that the mistake or non compliance did affect the result of the election.

The principles, which are contained in the section 3 of the Electoral Act, largely replicate constitutional provisions to ensure that elections should be “conducted, freely, fairly and transparently”. In all the breaches mentioned above, we will need to show that they were not just breaches of Act but breaches of the principles and that they affected the result.

It must also be argued that these breaches, must not be viewed in isolation but that the non compliance with the Act and the cumulative effect of that, was to affect the result of the election. In this regard focus should not be necessarily on showing that Chamisa won the election but rather that Mnangagwa did not get the 50% plus 1 required to win the election. If that is our focus then we only have to deal with the 30000 voter margin. If we combine the cumulative nature of these breaches we can argue that the evidence shows that the 30 000 margin (or,6% margin) which got Mnangagwa over the 50% plus 1 threshold is unsustainable.

The order which we should seek is that the election be invalidated in terms of section 93(4)(b) of the Constitution.

SENATOR DAVID COLTART
SENIOR PARTNER
WEBB, LOW & BARRY

BULAWAYO 6TH AUGUST 2018