On 5 September 2018, renowned scholar Alex Magaisa published a piece on the standard of proof in Zimbabwe’s presidential petition. He argued that the ruling of the Constitutional Court led to uncertainty regarding the standard of proof to void elections in Zimbabwe. This response investigates the extent to which such uncertainty exists.
On 24 August 2018, the Constitutional Court of Zimbabwe dismissed Nelson Chamisa’s challenge to the presidential election. It stated the requirements for overturning a presidential result, which are if, “(1) The results are a product of fraud (2) The elections were so poorly conducted that they could not be said to be in substantial compliance with the law.” Both considerations are guided by the election result, which is why substantial non-compliance will only invalidate an election if it affects the result. There are two requirements for the claim of substantial non-compliance; the breaches of law must amount to substantial non-compliance and they must affect the result of the election.
Thus, the general rule is that breaches which do not affect the result will not justify voiding an election. The Court indicated that the exception is in circumstances where substantial non-compliance affects the result. Alex Magaisa contends that this could only be an exception if there was no requirement to prove that the substantial non-compliance had affected the election result. This is clarified by the two part test in Section 177 of the Electoral Act [Chapter 2:13] which empowers a court to void an election in circumstances where the election is not conducted in terms of the Act and such conduct affects the result of the election. The Court merely restated this clear statutory position.
Nelson Chamisa’s lawyers had painstakingly argued for the Court to accept that substantial non-compliance was enough to void an election without the need to prove that it affected the result. They sought a disjunctive interpretation to the conjunctive “and,” so it would mean “or.” This was rejected by the Court, which used a plain reading of Section 177 of the Act. It concluded that substantial non-compliance is an insufficient ground to void an election if it does not affect the result.
This is similar to the Court’s jurisprudence on stay of prosecution in cases of torture or inhuman or degrading treatment. In such cases, the Court has held that a stay of prosecution will only be granted when the fruits of the torture affect the result of criminal prosecution. The existence of breaches of laws is insufficient to secure a stay criminal prosecution. Similarly, substantial non-compliance with the law will only empower the Court to void an election when it affects the result.
This leaves several questions which will, hopefully, be covered in the full judgment of the Court. One such question is the legal remedy for substantial non-compliance which does not affect the election result. The other question is dealt with by Alex Magaisa and in the heads of argument by Nelson Chamisa’s lawyers; such a burden of proof is onerous and is that much more difficult to discharge in the seven-day period required to file a challenge to a presidential election. This may be more onerous, but it does not leave much room for uncertainty. The Constitutional Court has, in electoral and torture cases, established a practice of looking into both the magnitude of the alleged breaches and the effect on the result. To this extent, there is a consistency to the Court’s jurisprudence.