CLAIM: Senior opposition figures, including former minister Jonathan Moyo and MDC Alliance presidential candidate Nelson Chamisa’s chief election agent Jameson Timba, have alleged that Chief Justice Luke Malaba, while ruling in Chamisa’s presidential election petition, said figures were not important.
CONCLUSION: The claim, which has been reduced by many critics of the Constitutional Court ruling to mean ‘figures do not matter’, is misleading.
What did the judge say?
Delivering an abridged version of the judgement last Friday, Chief Justice ruled that the declaration of a winner in an election, not the number of votes, is the result of the poll.
The court found that where there is a threshold of votes one needs to cross to be declared the winner of Zimbabwe’s presidential election. Once this threshold is demonstrated to have been reached, figures thereafter become inconsequential to the result.
Responding to Chamisa’s argument that Zimbabwe Electoral Commission’s (ZEC) alteration of figures after it declared President Emmerson Mnangagwa winner of the July 30 invalidated the election result, Malaba said:
“It is important to understand what the result of an election is. The result of an election is the declaration of a winner having reached the 50 percent plus one vote. No other thing. Any votes after that point have no bearing on the result of the election,” the Chief Justice said.
Malaba emphasised that the declaration of a winner – not the number of votes – was the result of polling. This has been seized upon and misinterpreted by critics of the court’s judgement to mean the court had disregarded figures, which were central to Chamisa’s case.
“Now the declaration as set out in these provisions is the legal event. This is upon any candidate reaching the 50 percent plus one vote threshold,” Malaba said. “Whether or not a candidate has reached this threshold is a question of fact. It is not a question of figures.”
The fact of the declaration, which Chamisa sought to have invalidated partly due to the fact that ZEC had amended its numbers and because only the court could change it, remained unchanged despite the alteration of the figures, the Chief Justice ruled.
“The amendment by ZEC has no effect at all on the result of the election and the declaration as interpreted in this case. In fact, an error in counting and amendment of figures is envisaged in the Act itself which makes the provisions of section 110 subject to those of section 67 (a),” he said.
“The law therefore allows for the adjustment and, again, if the applicant was aggrieved by the counting and the figures availed he should have utilised remedies availed to him by the Act.”
The court sought to clarify what it considers to be the result of the election – the number of votes or the declaration of a winner upon crossing the threshold (a number) as provided by law. It chose the latter. It also ruled that, in this specific case, Chamisa as the applicant had not sufficiently demonstrated that the irregularities he alleged, even coupled with ZEC’s own admitted errors, took Mnangagwa below the stipulated 50% plus 1 threshold upon which the president was declared winner.
It is, therefore, misleading to say the court said it “believes in facts, not figures.”