Now that Nelson Chamisa, the MDC Alliance presidential candidate, has filed a petition challenging the validity of the recent election, attention has turned to what happens next. This article outlines the process as provided for under the constitution and highlights issues that are likely to arise. It goes without saying that this case presents a stern test for the Zimbabwean judiciary, with its decision likely to impact heavily on the future of the nation.
BY ALEX MAGAISA
The law governing challenges to the presidential election is provided for under section 93 of the constitution.
This provision states that an aggrieved party may, within seven days after the declaration of the election result, challenge the validity of a presidential election at the Constitutional Court. This is the highest court in the country. Its decision is final, which means it cannot be appealed to any other court of law.
The implication of filing a petition is that the inauguration of a candidate who has been declared the winner by the electoral authority has to stop until the dispute is resolved. There are certain timelines that must be followed. This puts on hold the inauguration of president-elect Emmerson Mnangagwa, which had been tentatively scheduled for today.
The process, which allows electoral challenges to be exhausted before inauguration was designed to prevent a phenomenon referred to a “rush to inauguration” — a common practice where a declared winner is hastily inaugurated soon after the announcement of results, regardless of other candidates’ grievances. This placed challengers at a disadvantage, fighting an incumbent who would have already begun his term. The pause while disputes are resolved goes some way to levelling the playing field.
If there had been no petition, the inauguration would have been held on the ninth day after the declaration of the result as provided for in section 94(1). That’s why the inauguration had been planned for August 12, 2018. Where there is a challenge, the inauguration is held within 48 hours after the Constitutional Court declares the winner. If the Constitutional Court makes the decision to declare a winner, inauguration will be held within 48 hours of the decision. Now that a petition to challenge the election has been filed, the inauguration has to wait until the dispute is resolved.
In terms of section 93(3), the Constitutional Court is required to hear and determine the matter within a period of 14 days after the petition is lodged. Since the petition was filed on August 10 2018, the Constitutional Court must hear and give its determination on or before August 24 2018.
It is within these 14 days that all the procedures pertaining to the hearing must be fulfilled. When a petition is filed, all parties that are cited must be served with the papers. The parties include the Zimbabwe Electoral Commission (Zec), in its capacity as the electoral authority, the declared winner, Mnangagwa, and all the other candidates who participated in the presidential election.
Upon receipt of the petition, they must file opposing papers, if they are minded to oppose it. Thereafter, the petitioner will have an opportunity to file a response. The petition and responses are in the form of affidavits — sworn statements made by the parties and accompanying evidential material.
Afterwards, the petitioner must file heads of argument to which the respondents must also respond. Heads of arguments constitute the main heads of the legal arguments which will be advanced by the parties in support of their positions at the hearing. They must be a clear, concise and succinct summary of the main legal arguments, together with legal authorities upon which the party relies.
It is these heads of arguments which they will substantiate at the hearing. All this must be done within the time limits set out in the rules or as directed by the court. Recall that there are only 14 days within which the court must hear and determine the matter. The case must be well-managed and it may be necessary to call a case management hearing at the earliest opportunity.
The court may call the parties and/or their legal representatives in order to provide direction on how the matter must proceed. This may be necessary in order to expedite the hearing and resolution of the matter. It is important that there is an oral hearing where the parties will present their legal arguments. It is here that the respective lawyers’ skills will be put to the test on a public stage.
It is possible that there may be interlocutory applications prior to the main hearing of the matter. These are applications that are made seeking interim relief related to the main application. An example is where a party seeks access to certain material or information which may be useful in the main case. In this case, it may be an application for access to voting material, such as ballot papers, V11 forms, lists of postal voters, lists of assisted voters, and others whose inspection may be necessary for the main case.
Another could be an application to join in as a party to the matter even though one had not been cited in the petition. An example is where a body such as the Law Society of Zimbabwe, the Zimbabwe Human Rights Commission, the attorney-general or a civil society organisation like the Zimbabwe Lawyers for Human Rights wishes to be joined in the case as Amicus Curiae (friend of the court). Amicus Curiae may have certain expertise in a particular area and their opinion may be useful to the court in the determination of issues at hand.
It is possible, therefore, that there might be interlocutory applications in the next few days. Indeed, it is a matter of such importance that it may warrant the opinions of such bodies or individuals to assist the court. Whether or not they are permitted is, of course, at the discretion of the court.
The court may call for a pre-trial conference where together with the parties the key issues are identified and outlined so as not to waste time on inane detail during the main trial of the petition. This is an important step, which will help to expedite matters particularly given the limited period within which the court must hear the matter and make a determination. At this conference, a timetable for submissions and counter-submissions can be agreed so that there is no gamesmanship which may cause inordinate delays to the matter, thereby exhausting the time limits provided for in the constitution.
Burden and standard of proof
There are also key procedural issues, which will occupy the court. These include the admissibility of evidence. Parties are likely to present a huge and diverse amount of evidence contained in multiple forms. The court will have to follow the rules and exercise its discretion in admitting the evidence. In this case, it is important to appreciate that a presidential election petition is sui generis (in a class of its own) and therefore requires the reasonable use of discretion and flexibility as far as evidential matters are concerned. Disputes are likely to arise over the issue of admissibility of evidence and all eyes will be on how the court resolves them.
Another issue is the burden of proof. A general rule of law is that he who alleges must prove. This means the petitioner bears the burden of proving the allegations made in the petition. In this case, there are precedents across the continent, the most recent of which was in Kenya where Raila Odinga successfully challenged the outcome of the presidential election in 2017. There, the Kenyan Supreme Court held that the burden of proof rests with the petitioner to prove that the election was not in accordance with the law after which it shifts to the respondent, mainly the electoral authority, to show that it was, in fact, legally compliant. Chamisa will have to prove allegations of non-compliance with the law and it will be up to Zec to prove that it complied.
A further issue is the standard of proof. There are generally two well-known standards of proof depending on whether the case is civil or criminal. In civil matters, the standard of proof is to prove a case on a balance of probabilities whereas in criminal matters it is to prove the case beyond reasonable doubt. The net result is that the standard of proof in civil matters is lower than it is in criminal matters. Which standard of proof is used in this case will be down to precedent.
Elsewhere, in the Odinga case, the Kenyan Supreme Court reiterated that the standard of proof lies in between the civil and criminal standards, that is, it is more than on a balance of probabilities but lower than beyond a reasonable doubt. However, where there are allegations of a criminal or quasi-criminal nature, they must be proven beyond reasonable doubt. The Kenyan case is only of persuasive values and the court will look to local precedent. But it is likely to also form a point of dispute between the parties, a presidential petition being sui generis.
What the court can do
After hearing the arguments, the Constitutional Court will make its determination. It has very wide and flexible powers as to what it can decide. Section 93(4) sets out these powers.
The first is that it can declare a winner. This means it has the ultimate power to declare the president, making the court the ultimate decision-maker in an election. It means the court holds the key to either uphold or subvert the will of the people. And there is no further appeal in the legal process. This is an absolute power which makes the court a critical player in an electoral process, which is why judicial independence is of utmost importance.
The second is that it can invalidate the election, in which case it must order a fresh election to be held within a period of 60 days. This is also an important and drastic power, but at least it gives parties a new and equal opportunity. The Kenyan Supreme Court used a similar power and declared the 2017 election invalid and ordered a fresh election.
The third and broadest power is that the court may make “any order as it considers just and appropriate”. It is this third alternative that gives the court a wide discretion which is only qualified by reasonableness. What the court “considers just and appropriate” can literally mean anything. This broad power can both be good and bad — good in that it allows the court flexibility which is useful if applied reasonably; but bad if the court takes a narrow, rigid and limited approach. It does allow the court leeway to craft a creative solution to what is plainly a difficult problem.
These are the options that the Zimbabwean Constitutional Court has in the next 14 days. It is a matter of great significance, perhaps the biggest ever case it must deal with in recent history. After millions cast their votes two weeks ago, the future of the nation — including its stability, democracy and economic prospects — literally hangs on the decision of the 9 men and women who sit on the Constitutional Court Bench. But it goes without saying that they must focus on the law and the evidence presented before them.
Question of independence
The wide discretion that the court has and the fact that there is no appeal from its decision means its independence is of paramount importance. This is why comments made by the President-elect in the most recent case involving opposition politician Tendai Biti that he had “intervened” to facilitate his release from police custody are highly regrettable. Although they were in relation to a matter at the Magistrates’ Court, they left the impression that he had influenced the judicial decision-making process. This was highly improper and prejudicial to the image and integrity of the judiciary, which is set to hear this very important presidential petition in which he is a party. If anything, the comments embarrassed the judiciary and added pressure on the judges, who must now demonstrate that they are truly independent and beyond political influence.
It is important to put in place measures to enhance transparency in the handling of the presidential petition. Election observers have a key role to play in this process since it is a key part of the electoral process. Other specialised observers such as eminent jurists from other countries must also be called in to observe the judicial process in this matter. In Kenya, the International Commission of Jurists brought in eminent jurists to observe the hearing. These jurists met with the head of the judiciary and the candidates before the hearing as part of the assurance process.
This is probably the sternest test for the Zimbabwean judiciary, with the eyes of the world focused upon it. The Kenyan Supreme Court made history last year when it found that the election had not been conducted in accordance with the law and that the irregularities had affected the integrity of the election. Invalidating the presidential election was a first for the continent where an opposition challenge was successful at that level. Chief Justice David Maraga and his colleagues were hailed for their courage, but they also faced vitriol from other quarters, including the presidency.
The trial of the presidential petition must be as open as possible to the people of Zimbabwe. It could make history with it as the first case to break with precedent so that it is given live television coverage. It would literally fulfil the old adage that justice must not only be done, but it must be seen to be done. Indeed, it is fair to say there is no better case to see Lady Justice in action.
This article was first published in Alex Magaisa’s blog — The Big Saturday Read