This court is prepared to, and hereby does, grant the application due to importance of the matter and the public interest involved.The other points in limine raised by the respondents will be fully addressed in the judgment to come. (Merits) On the merits, the applicant alleges that the first respondent did not win the election due to the fact that the run-up to the election the 23rd and the 24th respondents were involved in a litany of the constitutional and electoral law violation all of which had the effect of undermining the just conduct of the election. Some of the alleged violations relate to: (i) Lack of Independence of the Zimbabwe Electoral Commission (ii) Failure of the state owned media to comply with section 61 subsection 4 of the Constitution (iii) Conduct of the traditional leaders and rogue security elements. iv Failure to abide by general principles affecting conduct of the elections (v) ZEC’s responsibility to compile voters rolls. vi Wearing partisan clothing, vii Failure to provide a complete voters roll. viii Voter education, (ix) Design of presidential ballot papers Fixing of polling station returns (V11 forms) on the outside of polling stations (xi) Postal ballots (xii).
Counting of presidential ballot (xiii) Undue influence, threats, injury, damage harm or loss to voters xiv Bribery, provisional seed and fertilizer packs.
The court knows that the High Court of Zimbabwe was in recent months seized with and determined issues pertaining to:i) Conduct of postal voting (ii) Design of presidential ballot (iii) Release of voters roll with voters photographs to the parties iv) The 23rd respondent’s obligation to facilitate the voting by civil servants engaged in election duties on election day.
The court will therefore not at this juncture address the applicant’s contentions in respect of these issues. The court will also not in this abridged version of this judgement address the totality of the allegations made by the applicant as listed above. This will be done in the main judgment.Standard of proof in election petition.
In terms of authority of this and other courts the declaration of results in terms of the section 110 subsection 3 paragraph f(ii) of the act reacts a presumption of validity of that declaration. The honours and burden of proof in this application therefore rests with the applicant and it is for him to prove to the satisfaction of the court that there were irregularities in the conduct of the election.
The general position of the law is that no election is declared to being valid by the reason of any act or omission by a returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate election rules, if it appears to the court the election was conducted substantially in accordance with the law governing elections, and that the electoral omission did not affect the election result.
As an exception to this general position, the court will declare the election void when it is satisfied from the evidence provided by the applicant that the legal trespasses are of such a magnitude that they have resulted in substantial non-compliance with the existing electoral laws. Additionally the court must be satisfied that this breach has affected the results of the election.
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