FULL TEXT: Mangoma Backs Chamisa

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18 August 2018

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Below is Renewal Democrats leader Elton Mangoma’s full court response to the lawsuit filed by MDC Alliance leader Nelson Chamisa –

IN THE CONSTITUTIONAL COURT OF ZIMBABWE CASE NO. CZ 42/18
HELD AT HARARE
In the matter between: –
NELSON CHAMISA APPLICANT
And
EMMERSON DAMBUDZO MNANGAGWA 1ST RESPONDENT
And
JOSEPH BUSHA 2ND RESPONDENT
And
MELBAH DZAPASI 3RD RESPONDENT
And
NKOSANA MOYO 4TH RESPONDENT
And
NOAH MANYIKA 5TH RESPONDENT
And
PETER WILSON 6TH RESPONDENT
And
TAURAI MTEKI 7TH RESPONDENT
And
THOKOZANI KHUPE 8TH RESPONDENT
And
DIVINE MHAMBI 9TH RESPONDENT
And
LOVEMORE MADHUKU 10TH RESPONDENT
And
PETER MUNYANDURI 11TH RESPONDENT
And
AMBROSE MUTINHIRI 12TH RESPONDENT
And
TIMOTHY JOHANNES CHIGUVARE 13TH RESPONDENT
And
JOICE MUJURU 14TH RESPONDENT
And
KWANELE HLABANGANA 15TH RESPONDENT
And
EVARISTO CHIKANGA 16TH RESPONDENT
And
DANIEL SHUMBA 17TH RESPONDENT
And
VIOLET MARIYACHA 18TH RESPONDENT
And
BLESSING KASIYAMHURU 19TH RESPONDENT
And
ELTON MANGOMA 20TH RESPONDENT
And
PETER GAVA 21ST RESPONDENT
And
WILLIAM MUGADZA 22ND RESPONDENT
And
ZIMBABWE ELECTORAL COMMISSION 23RD RESPONDENT
And
THE CHAIRPERSON OF THE ELECTORAL COMMISSION 24TH RESPONDENT
And
THE CHIEF ELECTIONS OFFICER 25TH RESPONDENT

20TH RESPONDENT’S OPPOSING AFFIDAVIT

I, ELTON STEERS MANGOMA do hereby make oaths and swear that:
1. I am a male adult person and cited as the 20th Respondent in the petition before the Court. I am a Chartered Accountant by profession and fully versed with the issues raised in my opposing papers. I participated as a presidential candidate on behalf of a political party called Coalition of Democrats in the recently held presidential elections and it is in that capacity that I was cited and I am able to depose to this affidavit on my own behalf. The facts deposed to herein are within my personal knowledge and to the best of my belief, true and correct. For the purposes of this petition my address of service is that of my legal practitioners of record being Messrs Wintertons of Beverly Corner, 11 Selous Avenue, Harare.

2. To start with I do confirm that I duly received a copy of the petition filed on behalf of the Applicant. The petition consists of the application and a bundle of documents. I have carefully and diligently read the contents thereof and wish to state that I am opposed to the granting of part 2 of the relief sought for the reasons that will morefully appear in the body of my opposing affidavit. Given the gross irregularities and the margin that was wrongly attributed to the 1st Respondent it is improper to declare either the Applicant or the 1st Respondent the winner without a full audit by independent qualified auditors. I wish to place it on record that I did not file a petition of my own because I believe that I did not earn reasonably sufficient votes to warrant making a petition. But this is not to say that I am in agreement with the manner in which the elections were conducted by the 23rd Respondent. Far from it. I therefore wish to make the following averments to enable this Court to make an informed determination of this important matter, whose implications will be felt by everyone for the next five years. I am very much aware that this Court has previously held (correctly, I must add) that a final and binding decision on the validity or invalidity of the election of a President is required to be based on the merit of the case and hence my filing this informed opposing papers.

3. The elections were not conducted by the 23rd Respondent in accordance with the principles of fairness set out in the Electoral Act and Constitution. The election was also not free from gross electoral malpractices, which tainted the whole process to such an extent that the election cannot be deemed credible. Basically the results announced by the 23rd Respondent are not accurate, verifiable, secure and transparent as contemplated in the Constitution as I will demonstrate below.

4. I have prepared a schedule which demonstrates that the results announced by the 23rd Respondent were not accurate and that contrary to the proclamation made by the 24th Respondent, the 1st Respondent did not garner enough votes to be declared President elect of Zimbabwe. I hereto attach marked “A” a schedule showing how and why I believe that the results announced by the 23rd Respondent were not accurate and were inconsistent. The Court will note the column entitled “Proclaimed”, which shows the results that were announced on national Television by the 23rd Respondent. Next to the Proclaimed column is a column entitled “CD Results” which shows results that actually appear on the CD that the 23rd Respondent furnished the participants shortly after the elections. The third column entitled “Difference” shows the difference between the Proclaimed results and the CD results. There is a difference of 2,901 on the results of the Applicant and whereas there is a difference of 1,273 on the results of the 1st Respondent. In other words the Applicant suffered greater prejudice than the 1st Respondent. This sets out a disturbing pattern which cannot be explained as being mere coincidence or pardonable administrative flaws, but a deliberately calculated scheme to disadvantage the Applicant and advantage the 1st Respondent as I will further demonstrate.

5. The next two columns relate to double counting in Mt Darwin East and Mbire Constituencies. see pages 49 – 50 of the petition. The Applicant received 618 extra votes in Mt Darwin East and 229 extra votes respectively and whereas the 1st Respondent received 4,792 extra votes in Mt Darwin and 2,293 extra votes in Mbire respectively. It goes without saying that the 1st Respondent received more extra votes than the Applicant thereby gaining a real advantage in the election. The Applicant gained 847 extra votes and whereas the 1st Respondent gained 7,085 extra votes. In this instance the 1st Respondent obviously gained an advantage over his main challenger because he got more extra votes than him. Those extra votes should never have been given to both the Applicant and the 1st Respondent.

6. In violation of the law, the 23rd Respondent permitted 17 voters to vote after the closure of polls as shown by the column entitled “Belvedere after hours”.

7. There were also non-existent polling stations that also show the same trend of giving an advantage to the 1st Respondent over his main challenger, the Applicant. The column entitled “non-existing polling stations Magunje M Series” shows that the Applicant was credited with 1,523 non-existent votes and the 1st Respondent was credited with 5,396 non-existent votes. see page 164 – 165 of the application.

8. The column entitled “V11 forms” shows that the Applicant was credited with 19,782 and whereas the 1st Respondent had 10,343 votes taken away from him. This is based on the information readily discernable on the V11 forms. see page 143 to 150 of the application.

9. The column entitled “over voting” shows that the 1st Respondent benefitted with 31,204 votes from this malpractice see page 152 – 154. These are votes that are over and above the registered voters and should never have been allowed.

10. The column entitled “Parliament vs President” shows that there was a discrepancy of 113,005 voters between the Presidential and Parliamentary elections. These figures are taken from the CD Results. It goes without saying that if the 23rd Respondent conducted the elections in a fair and credible manner, there should have been a tally in the number of voters between the Presidential and Parliamentary elections. I believe that this discrepancy was engineered to favour the 1st Respondent as has been the trend in other aspects. see page 139 to 142 of the application.

11. The column entitled “TOTAL 3” shows the revised actual totals after factoring in the anomalies highlighted in the preceding paragraphs. In terms of these totals, the Applicant garnered 2,167,549 votes and whereas the 1st Respondent garnered 2,290,765 votes. The percentages are captured in the last column entitled “Percentage”, which shows that the Applicant obtained 46.10% and whereas the 1st Respondent obtained 48.72%, which is not sufficient for him to have been declared President elect.

12. One of my party candidates Ismaela Elias Malukula reported a case of a person found in possession of Presidential ballots in Mazowe North Constituency. The case was reported to Police. If need be, Ismaela Malukula Elias can be called to give an account of the incident. It is such incidences that explain why the totals between the Presidential and Parliamentary elections are not tallying and therefore cannot be taken lightly.

13. In a nutshell, the election conducted by the 23rd Respondent does not pass the test of credibility and fairness. It would be a complete travesty of justice for this Court to overlook or condone the multiplicity of breaches in the holding of the elections by the 23rd Respondent. For instance, there was gross bias by the State media towards the campaigns of the 1st Respondent at the expense of every other candidate, especially the Applicant whose coverage was mainly to project him in negative light. Some of us were utterly neglected, as if we were not involved in the elections. In terms of the law, see section 160E-K of the Electoral Act the 23rd Respondent was obliged to ensure that all parties got equal and fair coverage from the publicly funded State media. Despite several complaints being lodged with the 23rd Respondent, the 23rd Respondent refused, neglected and/or failed to rectify this anomaly thereby ensuring that the 1st Respondent gained an advantage in getting his message across to the electorate. I in fact filled a case with the High Court to force the 23rd Respondent to give guidelines to the state media. Further, the 23rd Respondent did not supply the candidates with the final voters’ roll that it used on Election Day. This is inspite of the fact that on 29th May 2018 the 23rd Respondent caused the publication of a General Notice 370B of 2018 in which it claimed that that was the voters’ roll that would be used for purposes of the elections. I hereto attach marked “B” a copy of the self-explanatory General Notice 370B of 2018.

14. Incidentally I have had sight of the bundle of evidence of the petitioner which bundle I now wish to place extensive reliance upon. I therefore attach and adopt this bundle as if its my own. I have had sight of the curriculum vitae of Dr Otieng which convinces me of his extensive experience in electoral matters particularly in the Kenyan presidential petition, which shows the extent to which the Kenyan Supreme Court relied on his evidence and experience.

15. I have done my own independent investigations and have accepted as correct factual averments made in the supporting affidavits contained in the bundle. I have attached my own CD with evidence of glaring irregularities which are at par with the ones referenced in the bundle. I had my own supporters in the places mentioned.

I accordingly pray as follows:

(a) The Presidential election of 2018 was not conducted in accordance with the laws of Zimbabwe and was not credible and fair;

(b) In terms of section 93(4)(b) an election to the office of the president of the republic of Zimbabwe shall be held within sixty (60) days of this order;

Thus done and sworn to at Harare on this…..day of August 2018.

_________________________
ELTON STEERS MANGOMA
BEFORE ME:
_________________________
COMMISSIONER OF OATHS

20TH RESPONDENT’S NOTICE OF OPPOSITION

BE PLEASED TO TAKE NOTICE that the 20th Respondent intends to oppose the application on the grounds set out in the supporting documents attached hereto and that his address for service (which is within twenty-five kilometres of the office of the registry) is specified below.
The Court application was served on the Respondent on the 10th August 2018.
DATED AT HARARE THIS 16th DAY OF AUGUST 2018.

AND
TO: DUBE, MANIKAI & HWACHA
1st Respondent’s Legal Practitioners
DMH Commercial Law Chambers
6th Floor, Goldbridge, Eastgate
Corner S Nujoma Street/R Mugabe Road
HARARE (CFD)

AND
TO: NYIKA KANENGONI & PARTNERS
23rd, 24th & 25th Respondents’ Legal Practitioners
3rd Floor, Northwing, ZIMDEF Headquarters
Off Mother Patrick Avenue/Rotten Row
HARARE [CN/TMK/SM]
AND
TO: JOSEPH BUSHA
2nd Respondent
FreeZim Congress
HARARE
AND
TO: MELBAH DZAPASI
3rd Respondent
#1980 Freedom Movement Zimbabwe
HARARE
AND
TO: NKOSANA DONALD MOYO
4th Respondent
Alliance for the People’s Agenda
HARARE
AND
TO: NOAH NGONI MANYIKA
5th Respondent
Building Zimbabwe Alliance
HARARE
AND
TO: PETER HARRY WILSON
6th Respondent
Democratic Opposition Party
HARARE
AND
TO: BRYN TAURAI MTEKI
7th Respondent
Independent
HARARE
AND
TO: THOKOZANI KHUPE
8th Respondent
Movement for Democratic Change-T
HARARE

AND
TO: DIVINE MHAMBI- HOVE
9th Respondent
National Alliance of Patriotic and Democratic
HARARE
AND
TO: LOVEMORE MADHUKU
10th Respondent
National Constitutional Assembly
HARARE
AND
TO: TENDAI PETER MUNYANDURI
11th Respondent
New Patriotic Front
HARARE
AND
TO: AMBROSE MUTINHIRI
12th Respondent
National Patriotic Front
Newton Farm
MARONDERA
AND
TO: TIMOTHY J TONDERAI MAPFUMO CHIGUVARE
13th Respondent
People’s Progressive Party of Zimbabwe
HARARE
AND
TO: JOICE TEURAI ROPA MUJURU
14th Respondent
People’s Rainbow Coalition
HARARE
AND
TO: KWANELE HLABANGANA
15th Respondent
Republican Party of Zimbabwe
HARARE
AND
TO: EVARISTO WASHINGTON CHIKANGA
16th Respondent
Rebuild Zimbabwe
HARARE

AND
TO: DANIEL KUZOVIRAVA SHUMBA
17th Respondent
United Democratic Alliance
HARARE
AND
TO: VIOLET MARIYACHA
18th Respondent
United Democracy Movement
HARARE
AND
TO: BLESSING KASIYAMHURU
19th Respondent
Zimbabwe Partnership for Prosperity
HARARE
AND
TO: PETER MAPFUMO GAVA
21st Respondent
United Democratic Party
HARARE
AND
TO: WILLIAM TAWONEZVI MUGADZA
22nd Respondent
Bethel Christian Party
HARARE

INDEX

ITEM DOCUMENT PAGE

1. Notice of Opposition 1 – 6

2. Opposing Affidavit by Elton Steers Mangoma 7 – 13

3. Annexure ‘A’ Results Schedule 14

4. Annexure ‘B’ Government Gazette dated 29 May 2018 15

5. Bundle of Documents 16 – 344

DATED AT HARARE THIS 16th DAY OF AUGUST 2018.

_______________________________________
WINTERTONS LEGAL PRACTITIONERS
20th Respondent’s Legal Practitioners
Beverley Corner,
11 Selous Avenue,
HARARE (DH/nm)
TO THE REGISTRAR
CONSTITUTIONAL COURT OF ZIMBABWE
HARARE
AND
TO ATHERSTONE & COOK
Applicant’s Legal Practitioners
Praetor House
119 J Chinamano Avenue
HARARE (CM/IC/2018 Pres Petition
AND
TO: DUBE, MANIKAI & HWACHA
1st Respondent’s Legal Practitioners
DMH Commercial Law Chambers
6th Floor, Goldbridge, Eastgate
Corner S Nujoma Street/R Mugabe Road
HARARE (CFD)
AND
TO: NYIKA KANENGONI & PARTNERS
23rd, 24th & 25th Respondents’ Legal Practitioners
3rd Floor, Northwing, ZIMDEF Headquarters
Off Mother Patrick Avenue/Rotten Row
HARARE [CN/TMK/SM]
AND
TO: JOSEPH BUSHA
2nd Respondent
FreeZim Congress
HARARE
AND
TO: MELBAH DZAPASI
3rd Respondent
#1980 Freedom Movement Zimbabwe
HARARE
AND
TO: NKOSANA DONALD MOYO
4th Respondent
Alliance for the People’s Agenda
HARARE
AND
TO: NOAH NGONI MANYIKA
5th Respondent
Building Zimbabwe Alliance
HARARE
AND
TO: PETER HARRY WILSON
6th Respondent
Democratic Opposition Party
HARARE
AND
TO: BRYN TAURAI MTEKI
7th Respondent
Independent
HARARE
AND
TO: THOKOZANI KHUPE
8th Respondent
Movement for Democratic Change-T
HARARE

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