NEWS & ANALYSIS

When water flows uphill

"An Onlooker" writes on the Zimbabwean ConCourt's decision to uphold Emmerson Mnangagwa's election

The unanimous judgement last Friday by which Zimbabwe’s Constitutional Court dismissed a challenge to the election of Emmerson Mnangagwa as President was meant to settle a constitutional and political crisis which has snowballed with each Zimbabwean election since 2000. Instead it has become another signpost on a road going nowhere. 

When the MDC opposition candidate Nelson Chamisa initiated Court proceedings there was little doubt that the Constitutional Court would summarily defeat the challenge and give Mnangagwa another thumbs up. The judges who now adorn our apex court after all never resisted the long years of misrule by Robert Mugabe. Some judges have been particularly helpful. After military intervention last November, which effectively pensioned off Mugabe and enthroned Mnangagwa, the Judiciary was swift to bend with the wind and confirm the constitutionality of “Operation Restore Legacy”. Our judges are shrewd and knowledgeable in law. All are Zanu PF appointees. None of them can be described as heroes.

The manner in which the Application was savaged in State media before it was argued is notable and shows how the process was choreographed for public consumption. In particular much was made of the MDC’s failure to request a recount of the votes and this became the central argument of Chief Justice Malaba some days later in dismissing the Application. It was as if a marvelous telepathic connection linked His Lordship to the crude propagandists of the State Press.

A further obstacle was placed in the path of justice by Zanu PF’s Minister for Justice, Ziyambi Ziyambi, who refused certification for three prominent South African advocates, Dali Mpofu SC, Jeremy Gauntlett SC and QC, and Tembeka Ngcukaitobi, to argue before the Court. This was a petty and spiteful restriction which embarrasses Zimbabweans and needlessly limited a litigant’s right to secure representation of their choice.

The nine judges of the Court who were apparently requiring protection from these formidable South Africans made not a murmur from the bench regarding the way in which the dignity and efficacy and independence of their Court was diminished by the Minister.

In this hostile and unpromising context high expectations were placed on the Applicant’s lead Counsel, Advocate Thabani Mpofu. It is true to say Adv Mpofu met and surpassed every expectation, under withering fire from the entrenched members of the Bench. He presented a detailed, overwhelmingly well evidenced case setting out the reasons the election results announced in favour of Mnangagwa simply could not pass any meaningful test of democratic legitimacy by any reasonable standard in domestic or international law.

The reasons begin and end with the nature of Zanu PF itself; a fearsome civil military hybrid which has dominated Zimbabwe since independence in 1980 and which has grown increasingly creative and sophisticated in meeting the democratic challenge which emerged from civil society with the formation of the MDC.

 Zanu PF is and always will be first and foremost a violent entity which turns to the gun when threatened. The death of six unarmed civilians in the streets of the Capital Harare after the release of the disputed results has sickened the world.  Zimbabweans know this was only a small display by a ruling party which boasts “Zanu PF ndeyeropa": Zanu PF emerged through bloodshed. 

But the military which is responsible for these killings is only one of the coordinated arrays of forces by which Zanu PF holds power in Zimbabwe. 

As one long term observer puts it. “Look at your five fingers when you clench your fist. Zanu PF is the fist. Then the security forces are one finger.  The State media, ZBC, ZTV and government newspapers, next finger. The Zimbabwe Election Commission is the middle finger. Mnangagwa is isikhombisa, the index finger.  And the Courts are the thumb. Because whatever Mnangagwa and his boys do, the Judges are there to give them a thumbs up.”

 Against these odds, in the mere seven days allowed by the Zimbabwean Constitution for challenges of this kind, Advocate Mpofu had marshalled an application of unprecedented complexity in Zimbabwean law taking in the most significant obstacles to free and fair elections which Zanu PF has created over its 38 years of hegemony. 

These factors are a litany of thwarted democratic aspiration and ambition, failure, frustration, suffering and oppression to millions of Zimbabweans. They range from endemic violent intimidation by the security establishment, including war veterans and paramilitaries; to the intensive unrelenting propaganda disseminated by state media; to the failure of the ZEC to ensure that the democratic will of the people could be expressed.

These things are well known. 

The application however also introduced a new dimension to the now traditional court challenges to Zanu PF rigged election results, following the Kenyan precedent which had nullified a Presidential election there last year. The statistical expert involved in that landmark case, Edgar Otumba Ouko, provided a damning report on the Zimbabwean poll. An independent team of Zimbabwean data scientists further dissected the computerized results and it was immediately evident that extensive rigging had taken place from their analysis of the Zimbabwe Election Commission’s digital records.

Whereas in the past the Opposition was obliged to participate in the charade of asking for ballot boxes to be unsealed (after weeks or longer in the Zanu PF fist) now an immediate real time stream of evidence could be placed before the Court.

For this reason, the application represented a quantum leap forward in our jurisprudence, through techniques of forensic data analysis which have until now been little known or relied upon in our country. These techniques offered an opportunity for presentation to Court of raw evidence in a scale and depth and through a medium of clarity and accessibility which has never been seen before. These techniques are rigorous, reliable and testable and offered the best evidence of the true outcome of the election. This evidence was damning. 

To compound the challenge created by the experts to Zanu PF, the Court was asked to issue a subpoena for the ZEC’s computer records and servers.

The analysis was already political dynamite. It revealed that a crime had been committed. Forensic analysis of the ZEC servers would reveal the digital footprints and fingerprints of the criminals.

Zimbabwe’s premier judges are many things. But they are not fools. Neither are they suicidal. Accordingly the subpoena application was not considered. It was not even dismissed. It was ignored; even as the Chief Justice continued to lament an absence of evidence. 

The eminent judges chose to deliberate on another case. One which was not before them. One which better suited their judicial “thumb". This was a case which completely ignored the expert evidence submitted by the Applicant and which instead owed much to an extensive and sterile discussion about sealed ballot boxes and physically counting millions of ballot papers. 

To some commentators this proved that Zimbabwe’s foremost judicial minds are not able to adjust to innovative new techniques of electoral analysis. This is not true. CJ Malaba and his comrades have penetrating minds and a very strong grasp of reality. They simply could not take the risk of following the evidence to its conclusion.

And so, the Court collectively glumly glued itself to the insistence on ballot boxes as the only evidence it could accept because it was aware that such a wasteful and futile paperchase would lead only to yet another legal dead end as in all previous challenges.

 Nonetheless, facing constant and generally irrelevant interjections from Malaba CJ and other judges, Advocate Mpofu presented with accuracy and specificity the proof of obvious manipulation and indeed blatant manufacture of votes to ensure that the Zanu PF candidate- the index finger in Zanu PF’s fist - would be rubberstamped as President without having to face a real democratic contest by way of a run off.

The cumulative effect of this approach led impartial observers to the unanswerable conclusion that the ZEC had among other things deducted opposition votes; double counted duplicate votes for Zanu PF; generated tranches of votes from ghost polling stations; altered vote tallies; and ensured digital avalanches of votes at specified polling stations in periods of time which simply could not have been either placed into ballot boxes or processed by ZEC as a simple matter of physical possibility. 

In fact, the figures involved were in specified instances so great that it was uncomfortably obvious to all that it was not only the Constitution and electoral laws and regulations of Zimbabwe that ZEC had breached: the very laws of time and space had been defeated in these tallies. Thousands of votes were digitally created by ZEC’s specialists in their desperate effort to ensure Candidate Mnangagwa secured the bare minimum vote needed to avoid a second round.

Advocate Mpofu cited to the increasingly somber faced apex court the famous dictum of their eminent erstwhile brother judge, McNally JA, on a plausible liar, in Matambo v Mutsago 1996 (1) ZLR 101 (S) 103D-E:

“However charmingly, smoothly or impressively Mr Mutsago made these statements, the fact is that they are mechanically impossible.  If a witness says he saw water flowing uphill unaided by a pump, you do not judge his veracity by reference to his demeanour.  You apply the law of physics.”

Our judges could have applied this dictum to the matter before them.

Instead, with great seriousness of demeanour they chose to accept the veracity of the fruits of the Zanu PF system. 

By judicial fiat they tried to make water flow uphill.

And they piled this nonsense onto the highest of stilts with a grave discussion about whether or not the Applicant had proved that the ZEC had acted in collusion with Mnangagwa. 

“Qui facit per alium facit per se" came Advocate Mpofu’s reply. He who acts through another is deemed to have acted himself. This is an ancient principle of law and human responsibility. 

Is there any Zimbabwean alive who believes that the extensive digital distortion of the ZEC were not for the benefit of and at the command of the man who stood at the epicenter of Operation Restore Legacy?

Of course, our judicial commissars could never admit this common-sense fact known to every citizen of the land. In the Zanu PF fist fingers and thumb protect each other. If any should loosen they might experience a very painful fracture.

And so, Chief Justice Malaba closed the case. Candidate Mnangagwa  was declared President. Zimbabwe collapsed into collective mourning. Our crisis continues.

Potential investors will no doubt draw their own conclusions about the political controls exerted by Zanupf over our well tamed and obliging judiciary. Judges like these cannot (for example) be expected to uphold contracts in favour of foreigners over the demands of our ruling comrades

And oh yes, detailed reasons for the unanimous judgement are to come.

 Many of us look forward to examining those reasons in full.

We want to know the secret of how a number of judges in Harare last week made water flow uphill.