Adjudication of Presidential Election Disputes in Zimbabwe: A Case of Chamisa v Mnangagwa

Abstract

The effective adjudication of electoral disputes is one of the most important aspects of the democratic process as it guarantees the legitimacy of electoral outcomes. Since there is no perfect electoral process, disputes are likely to arise, but the judiciary can help to defuse tensions by ensuring electoral justice. Hence, the presence of an electoral justice system that protects the electoral rights of citizens is crucial for them to register their complaints when they arise so that they get a fair hearing and receive acceptable adjudication. Using the concept of democracy and electoral justice, this chapter employs a non-empirical and qualitative methodology to analyse the opinions of the courts in presidential election disputes from various jurisdictions. However, the emphasis is on the 2018 Zimbabwean case of Chamisa v Mnangagwa. Notable is the Zimbabwean Constitutional Court’s evidentiary requirements for the adjudication of presidential disputes. Although the Judiciary is generally not expected to interfere in elections, their adjudicatory role makes them reluctant to readily overturn the results of elections. Hence, numerous election disputes are unsuccessful, probably due to the difficulty in proving that there were substantial irregularities in the electoral process which affected the election result. In elections in general and presidential elections in particular, there is a presumption of validity of the announced election results. Hence, the burden rests on the petitioner to prove irregularities in the election process on a standard above that which is normally required in civil cases. The petitioner must show that the irregularities were substantial and that the irregularities affected the election result. If the petitioner fails to prove the relevance of the irregularities to the final electoral outcome, the court will be inclined to legitimise the election. It is however recommended that the electoral laws be unambiguous with a totally independent electoral management body.