The best evidence in this instance would have been the contents of the ballot box themselves; that is the primary source evidence. Evidence of the contents of the ballot boxes compared to the announcements by the electoral commission, and the evidence within the applicant’s own knowledge, would have given the court a clear picture of any electoral malpractices, if any had occurred.
No such proof was adduced by the applicant to support his allegations. The electoral law is designed to protect the vote. The protection of the ballot cast by every single citizen who participated in the election is fundamental.
It is the one that the court should guard jealously. The avenues availed to an aggrieved candidate are meant to ensure that he or she has all the evidence available to him or her to assist the court.
It follows that when the results were declared in early hours of Friday 3 of August 2018, the applicant may not have known the exact or precise reason why he was aggrieved but the makers in their wisdom created an avenue for the applicant to ensure that he had all the evidence necessary to prove his case if he so wished to exercise his right to challenge the result.
The time was on his side to obtain such evidence from the residue. The applicant’s remedies to access the ballot and election residue are in the Electoral Act under Section 67 subsection (a) and Section 70. Under Section 67(a) the applicant would have sought a recount of the votes within 48 hours whilst under Section 70, he would have approached the Electoral Court for an order of unsealing the ballot boxes.
These remedies are designed to protect each aggrieved candidate and to dispose of any doubt whether or not the election itself was properly conducted on the electing day and whether the true expression of Zimbabwean voters will was announced by the Zimbabwean Electoral Commission.These remedies are for the benefit of the aggrieved candidate.
They are meant to ensure that no unnecessary disputes or litigation relating to the validity of an election are undertaken. They are also meant to ensure that the aggrieved candidate, who then becomes the applicant, has the necessary evidence to prosecute successfully his or her application. So these are the remedies not for the respondents’ benefit.
They are meant to protect the rights of those who are aggrieved by the results of the presidential election. Armed with the evidence either from a recount where the figures are alleged to be incorrect or the analysis of the sealed boxes, the applicant would have a clear indisputable picture of the outcome of the election.
He would have been clear whether any irregularities relating to the actual votes and the results could be substantiated. He chose not to exercise this right.
Continued next page
(860 VIEWS)
