Zimbabwe could be headed for the most tumultuous time in its post-Independence history, possibly only second to the Gukurahundi of the 1980s. The country is currently chartering in an unfamiliar territory, and what the future holds, only God knows.
By Simbarashe Tembo
The July election, that saw the incumbent president Mnangagwa cruising to victory, was followed by an unprecedented act of violence by the opposition and the army leading to the loss of at least six lives. The army has been heavily criticized for its point-blank shooting of unarmed protesting civilians. The army has neither directly regretted its actions nor accepted responsibility despite widespread condemnation from the international community.
For someone who has been following the post-election developments, this is common knowledge.
What remains bleak, however, are the implications of any of the possible outcomes of the election petition lodged with the Constitutional Court challenging the election result by the main opposition Presidential Candidate Nelson Chamisa. The Constitutional Court carries the last legal hopes for than more than 2 million people who voted for Nelson Chamisa.
In terms of section 93 (3) of the Constitution of Zimbabwe (2013), which governs the challenges to the presidential election, the Court has the power to (a) declare a winner (b) invalidate the election, in which case a fresh election must be held within sixty days after the determination; or (c) make any other order it considers just and appropriate.
The implications of the first and second powers are straightforward, if a winner is declared, the president calls for inauguration, if a re-run is ordered, parties get back into the campaign mode in earnest. The implications of the power in terms of section 93(3)(C), to make any other order is that it gives the court a very wide discretion. If the court is indeed independent, should it chose to exercise the power in terms of this provision, the surely its commitment to rule of law and democracy should be demonstrated otherwise it will be another circus of a court process.
Here are some of the discretionary powers that the court may exercise;
- Order an independent audit of the result
If the court deems it just and appropriate, given that that most of the arguments in the petition relate to arithmetic/collation errors, an order for an independent audit of the result may be made. The implication of this is that it may lead to an endorsement of the ZEC results or an overturn of the results depending on the audit outcome. This order may be seen as giving the incumbent a lifeline by providing an avenue on which the result can be endorsed. However, the challenge will be determining the independence of the audit and the opposition will not trust ZEC with the responsibility of sourcing the auditing company and this may lead to a further stalemate.
- An order for an amendment of the result.
The court also has the power to amend the results announced by ZEC. If the evidence tabled by the opposition shows that there were numerical irregularities but without the effect of a total reversal of the result, the court may make the necessary adjustments to the figures. This may have the effect of taking the declared winner’s tally to less than the required threshold of 50% + 1 vote. The relevant implications of the electoral act will automatically set in motion a presidential run-off to determine an outright winner. This will not be a desirable outcome for the people of Zimbabwe, the horrors of 2008 are still fresh in their minds.
- Order for a recount of the ballots
Given the wide discretionary powers that the court enjoys, it may give an order for a recount of the presidential ballot and other voting material. This is, however, very much unlikely since the opposition is not contesting the counting of the ballot but the collation of the results from various polling stations. The court, however, still bears the power to make such an order.
It is clear from the above possible outcomes that the election period is far from over in Zimbabwe and the battle can drag to as far as the international level. One thing has been very clear though. Zanu PF, is already preparing for the unknown. Widespread political persecution and intimidation led by the state and Zanu PF youth militia has been in motion since the declaration of results. The crackdown on the opposition by the soldiers in high density suburbs in the aftermath of the election demonstrated that the incumbent will do anything to stay in power. And this has sent shivers across the country. It is likely that should a re-run be ordered, there will be an unprecedented voter apathy.
Simbarashe Tembo is a PHD Constitutional Law Candidate at the University of Kwazulu-Natal (South Africa). He takes interest in Law, Politics and Human Rights. He can be contacted on [email protected]