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Vol 59 No 17

Published 31st August 2018


The judges join in

The court may have confirmed him in office, but Mnangagwa emerges from the controversial election a weakened President

In what President Emmerson Mnangagwa must reckon is the final piece of theatre after the disputed elections, the Constitutional Court's judgement on the opposition's petition was beamed live by state television on 24 August. To almost no one's surprise Chief Justice Luke Malaba and his panel of judges, all appointed by Mnanagagwa or his predecessor Robert Mugabe, threw out the petition questioning the Zimbabwe Electoral Commission's arithmetic and its adherence to the constitution.

Some top lawyers found Malaba's crass partisanship beyond belief (AC Vol 58 No 5, Whose judge is it anyway?). Not only did Malaba's panel fail to give serious consideration to the petition but it is using the case to weaken the opposition still further, by imposing punitive damages on the Movement for Democratic Change for exercising its constitutional rights at the court. 

According to the judgment, an election cannot be declared invalid unless the legal trespasses by the election body are substantially non-compliant. The burden of proof apparently was with the applicant, Nelson Chamisa, not the ZEC.  

Had Chamisa 'placed before the court the V11 forms from all the stations that he had a right to be present… the entire challenge to the figures would have been easily resolved.' The MDC Alliance had deployed polling agents across the country and collected thousands of V11 forms, which record the results for each polling station. 

But after the election, many opposition polling agents say they were threatened or attacked by militia loyal to the ruling Zimbabwe African National Union-Patriotic Front (ZANU-PF) or soldiers.  Those polling agents said they were told to sign altered V11s or refrain from submitting the originals to Harare.

Blocking bureaucracy
There are formidable bureaucratic obstacles to getting the original polling documents and other primary sources of evidence. Seven days, according to Justice Malaba, was enough time to request that the relevant ballot boxes be opened by ZEC. However, to have a single ballot box opened for re-counting, the applicant must serve notice to every candidate (there were 23 presidential candidates), as well as every local council candidate in that ward, because the voters roll for the polling station is sealed in the local council box.  

Alongside those barriers, the security crackdown targeted the MDC's collection of election data. On 2 August, police and state security raided Harvest House, the party's headquarters in Harare. Although the search warrant specified that the police were looking for weapons, their primary focus was on V11 forms and computers, we hear. Twenty-seven people were arrested. Much of the MDC Alliance leadership went into in hiding, making it harder to coordinate strategy 

Justice Malaba also dismissed the MDC Alliance's evidence of ZEC's miscalculations on the basis that they did not affect the threshold of 50% plus one required to win the presidential election: 'whether or not a candidate has reached this threshold is a question of fact. It is not a question of figures.'  

Again, Malaba accused the opposition of failing to provide adequate evidence. However, ZEC had admitted to the arithmetical errors pointed out in the MDC application, and twice adjusted downwards the official score for Mnangagwa.  

Following the ruling, Chamisa claimed a legitimate right to lead the people, and announced peaceful protests and plans to lodge a petition with the African Commission on Human and People's Rights (ACHPR). The MDC Alliance National Council meets on 29 August to discuss the way forward, but the party is under serious pressure. ZANU PF is yet to announce its 'costs' in the case but insiders reckon it will be around $3 million.  

On the afternoon of the Court ruling, the value of the Zollar, the local currency units held in the Reserve Bank's electronic transfer system, plummeted. Analysts estimate at least $80 mn. worth of $2 Bond Notes and at least $100 mn. worth of $5 bond notes were released into circulation in August. This latest creation of money without assets to back it, and as foreign liabilities are mounting, is stoking up economic trouble. In the short term it was intended to douse the anger of those in the cities infuriated by the theft of the elections.   

Mnangagwa's personal position is also weaker. Officially, he won with just 50.67%, while many of his MPs won by a large margin. There are questions around his ability to control MPs and, importantly, the armed forces, in the wake of the military crackdown against protestors on 1 August.  

Whether Mnangagwa was really unable to control the military, or is distancing himself from the crackdown to sanitise his image is a matter of debate. Reuters news agency reported a fierce argument between Mnangagwa and Vice-President Constantino Chiwenga over the military's role during or after the elections.  

Defenders of Mnangagwa claim that he has been a moderating influence on the military as the risks of violence grew. Even if that was true, it hasn't worked. Many opposition activists and mobilisers went into hiding a few days after the elections. Soldiers were hunting down activists in their homes. Many were abducted and severely beaten, many homes were destroyed.  

Soldiers also targeted vendors and street children whom they accuse of rioting on 1 August. Several suburban markets were burned and bulldozed. This violence was significant not just for its intensity, but because most of the perpetrators were in the military rather than the ZANU-PF militia or police.  Previously the military has held itself aloof from civilian politics, delegating political repression to the police. In fact, many opposition supporters had been supporters of the military as was shown in the big post-coup demonstration last November. 

At least three security groups are in contention: soldiers in units loyal to Vice-President Chiwenga such as the Presidential Guard; soldiers loyal to the Zimbabwe Defence Force Commander General Valerio Sibanda; and military and intelligence officers personally loyal to Mnangagwa as well as some of the militia which have been guarding the mines (and benefiting from production) in the Midlands and Matabeleland North. Security sources say there has been upsurge in militia operations across the country over the last two years, to protect commercial rather than political interests.

International freeze
The rigging and intimidation around the election, and the crackdown that followed it, mean that neither the European Union or the United States will back a resumption of international support for Zimbabwe, in the International Monetary Fund and other institutions. That freezes the country's situation unless Mnangagwa can secure massive bridging finance from China, perhaps premised on a barter deal for the country's platinum reserves. Mnangagwa's diplomatic efforts at the Focus on China-Africa Cooperation in Beijing on 3-4 September could prove critical. 

Before he leaves for Beijing, Mnangagwa has to pick his new cabinet as plans to travel with a full ministerial delegation. Given his personal weakness in the party and the loss of much western support for Mnangagwa, his appointees are likely to be core ZANU-PF politicians with no room for outside professionals, let alone a power-sharing arrangement with the opposition.

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