Zimbabwe’s Stolen 2018 Presidential Election
Jonathan N. Moyo
Shortly after midnight on 3 August 2018 ZEC chairperson, Priscilla Chigumba controversially used an unreliable Excel Spreadsheet, instead of using the more secure ZEC Server, to declare Emmerson Mnangagwa as the winner of the 2018 presidential election with 2,460,463 votes or 50.8%. ZEC declared the widely popular opposition candidate, Nelson Chamisa, as the runner up with 2,147,436 or 44.3%. ZEC put Mnangagwa’s margin of victory at 313,027 votes (around 38,000 votes over the 50% threshold).
And just before midnight that day, Morgen Komichi, as chairperson of the MDC-Alliance and Nelson Chamisa’s chief election agent Jameson Timba, had used the ZEC stage from where election results were being declared to announce that the MDC-Alliance was “totally rejecting the presidential results” and that he would not sign the verification certificate to authenticate the presidential election result.
Four days after declaring Mnangagwa as the winner of the presidential election with 50.8% of the vote, ZEC released a free CD-ROM copy of the presidential results, in a what ZEC claimed was a “protected” Excel Format allegedly with a breakdown of the results per polling station, ostensibly based on original V11s.
Based on the CD-ROM results in Excel Format, ZEC surprisingly and inexplicably altered the presidential election result that Chigumba it had declared for Mnangagwa on 3 August 2018, and this time gave him 50.67% rather than the earlier 50.8%. This was a smoking gun.
A scandal of historic proportions arising out of the last-minute tabulation of presidential election results, using what was in fact an insecure Excel Spreadsheet instead of the ZEC Server was brewing up. The scandal is best captured as Excelgate.
Before unravelling the scandal, Excelgate, it is important to
appreciate how things got to this imbroglio.
On 15 November 2017, the Zimbabwe Defence Forces (ZDF) led by General Constantino Chiwenga, now one of Zimbabwe’s two vice presidents, staged a military coup, dubbed “Operation Restore Legacy”, that toppled Robert Mugabe and his government. The military coup was daring and unprecedented. Although ZDF presented its intervention as a coup that was not a coup, and alternatively as a military assisted transition that had taken Zimbabwe “to another level”, there’s now no doubt that the military action was a coup. Mugabe who had been alleged to have voluntarily resigned has come out in public to categorically stated that he was forced to resign and has described the coupists as his “tormentors”.
Officially, as declared by ZDF, the coup lasted from 15 November 2017 to 18 December 2018; when the post-coup ZDF Commander, General Philip Valerio Sibanda, declared “Operation Restore Order” officially over. By this time the following situation obtained in the country:
- Zimbabwe was under military rule.
- Over 2,000 soldiers had been deployed and embedded in every rural community across the country.
- The rule of law in Zimbabwe had effectively been overthrown in blatant violation of sections 213 and 214 of the Constitution of Zimbabwe under a scandalous interpretation of section 212 of the Constitution which was controversially endorsed by the Judge President of the High Court of Zimbabwe, Justice George Chiweshe, on 24 November 2017, the day Emmerson Mnangagwa was inaugurated, in fact IMPOSED as a coup President.
- By this time, the military had embedded itself in key institutions of the State and in Zanu PF with General Chiwenga, Air Marshall Perence Shiri, General Sibusiso B Moyo, who announced the military takeover on 15 November 2017, having become cabinet ministers; with General Engelbert have been deployed to Zanu PF headquarters to run the party’s all-too-important commissariat department, as National Political Commissar.
- Other institutions that the military had targeted for takeover included the National Prosecuting Authority (NPA), the judiciary, state media, local authorities, especially in rural areas, traditional leaders and the Zimbabwe Election Commission (ZEC) to which additional military officers were seconded.
- Notably and given Excelgate, “Operation Restore Legacy” was officially declared over by the military ONLY six months before Zimbabwe was due to hold its constitutionally due general elections. The military ousted Mugabe seven months before the expiry of his five-year term which started on 22 August 2013.
Against this backdrop, it is notable that when Zimbabwe went to the polls on 30 July 2018:
- The country had a constitution without constitutionalism. Ironically, the overthrown constitution had been fully adopted only on 22 August 2013 with entrenched security sector reforms which went up in smoke on 15 November 2017.
- The judiciary had become jittery and acquiescent.
- The media, civic society and opposition political parties that had supported the coup and participated in the March Against Mugabe on 18 November 2017, and which had taken Mugabe’s departure as a change of the system, when it was far from it, had come to understand, rather too late and with lots of regret, that Zimbabwe had effectively become a de facto military state.
- Anxiety and palpable fear were gripping the public which was failing to come to terms with the unprecedented military engagement in civilian affairs, having initially embraced the military coup on 15 November 2017 under the “Mugabe Must Go Mantra”.
- The rural community was literally under military occupation and had become intimidated, cowed, fearful and immobilised.
The implication of the military coup on the 2018 general election was highlighted and dramatized by the following statements made key official figures:
- On 18 January 2018, General Engelbert Rugeje threatened that the Army, which had staged a military coup two months earlier, would REPEAT the widely condemned atrocities it committed in the June 2008 presidential run-off election campaign, during which 200 people were killed and many tortured or displaced as internal or external refugees.
- On 21 May 2018 Deputy Minister of Finance Terrence Mukupe announced at a Zanu PF election campaign rally in Harare East that the military would not allow the MDC leader, Nelson Chamisa, to rule if he won the 2018 general election.
- On 22 May 2018 Josiah Hungwe, Minister of State for Provincial Affairs for Masvingo Province, told a public meeting where he commissioned a clinic in Chiredzi that if Mnangagwa could shoot his way into power in November 2017, then there was nothing to stop him from doing the same thing to keep himself in office.
- On 18 June 2018, General Chiwenga told a Zanu PF election campaign rally in Tafara (Mabvuku) in Harare that the military’s “Operation Restore Legacy” which reached its tipping point on 18 November 2017 would end with the election of Mnangagwa on 30 July 2018. This was the most ominous statement whose unmistaken message was that the military operation that started on 15 November 2018 was still under way and would only end with the election of Mnangagwa on 30 July 2018.
- The biased election messaging prompted the Common-Wealth Election Observer Mission to make this damning finding:
“The acute bias of the state media in favour of the governing party, persistent allegations of intimidation reported to the Group, and the unfair use of incumbency privileges, tilted the playing field in favour of the governing party. The post-election violence, which resulted in fatalities, and the behaviour of security forces, marred this phase of the elections. For these reasons, we are unable to endorse all aspects of the process as credible, inclusive and peaceful”.
- Unlike any other election since 1980, the 2018 general election was unique in that it was run by ZDF as a military operation. The constant and unmistakable subliminal, but occasionally explicit campaign message at Zanu PF rallies and in State media reports was that the Army had not ousted Mugabe on 15 November 2017 in order to let go of the power it had grabbed through the barrel of the gun via the ballot box on 30 July 2018.
By midnight on voting day, 30 July 2018, reports and messages from election agents, polling agents and election observers started circulating that Nelson Chamisa had defeated Emmerson Mnangagwa by a landslide. These messages were given impetus by copies of V11s which started circulating, especially on social media platforms, showing that Chamisa had done exceedingly well even in rural constituencies.
There was panic within the establishment as the chatter that Mnangagwa had lost grew in currency. ZEC, especially its Chairperson, Priscila Chigumba, and military officers within deployed in ZEC, came under pressure from MID operatives who had been assigned to be their gatekeepers.
The immediate and tricky challenge was that, not only was Mnangagwa losing to Chamisa but he was performing badly compared to his parliamentary candidates: Zanu PF numbers were far better than Mnangagwa’s numbers. Put simply, Zanu PF was outperforming its leader. Altogether, Mnangagwa won 125 constituencies and Zanu PF won 145 constituencies. On the other hand, Chamisa won 85 constituencies the MDC-Alliance won 63.
CONSTITUENCIES WON BY MNANGAGWA & CHAMISA VERSUS THOSE WON BY THEIR PARTIES:
The constituencies that were won by Zanu PF and lost by Mnangagwa are Beitbridge East, Buhera West, Bulawayo South, Chegutu West, Chiredzi West, Gokwe Central, Goromonzi West, Gwanda North, Harare South, Lupane West, Makoni West, Magunje, Mhondoro Mubaira, Musikavanhu, Marondera West, Mutasa North, Nyanga South, Seke, Zvimba East, Zvimba West and Zvishavane Ngezi.
Given the foregoing, a mini operation to alter the presidential election results in favour of Mnangagwa, in fact in favour of “Operation Restore Legacy”, the military coup, was hatched and put into motion. The operation was evidenced by visible and incomprehensible actions that followed actions which could be seen and corroborated through observation and tying them together as concrete events that were, to put it mildly unprecedented and breath-taking.
Counting of votes and posting of the returns, the V11s, outside polling stations was immediately stopped, as reports of Mnangagwa’s loss spread like a veldt fire, and evidence thereof took hold.
On the nights of 30 July 2018 and 31 July 2018, unmarked vehicles, believed to belong to ZDF, ZEC vehicles and ZRP vehicles were seen at different places across the country in various circumstances loaded with unprotected, unsealed, ballot boxes with marked ballot papers and election residue. Some of these were confronted by members of the public.
The European Observer Mission made the following finding:
“Counting was observed in a total of 52 polling stations. EU observers reported that they were able to follow the counting of ballots without undue restriction in the presence of party agents and citizens observers. Counting was generally well organised and meticulous, although very slow. Observers in Makonde, Hurungwe and other areas reported that in many rural polling stations gas lamps were missing and that polling staff used mobile phones and candles to complete the counting of ballots. Some problems in ballot reconciliation, in determining valid and invalid ballots, in completing the numerous originals of return forms and in packing election materials for the three elections were noted. EU observers reported that the results were not posted at the polling station, as required by law, in 10 out of the 52 polling stations observed”.
On this sample, ZEC did not implement the legal requirement to post the V11s with the results of the presidential election outside 20% of the polling stations observed by the EU Observer Mission.
The EU Observer Mission found that that Some party agents and CSOs reported that “polling station return forms, the V11, were altered and return figures changed at ward and constituency collation centres”.
But even more telling, the evidence of the operation to alter the presidential result was reported by the EU Observer Mission in these graphic and shocking terms:
“EU EOM observed ZEC officers in Makoni North completing V11 forms two days after Election Day, even though polling staff and party agents were not present. They claimed this was due to the earlier lack of V11 forms”.
If this is not a smoking gun, then nothing is.
The fact that ZEC officers were this brazen in the alteration of election results shows beyond reasonable doubt that an operation was underway. The question that arises is simple: where did these V11s go? The answer is Excelgate.
Against the backdrop of the contamination of V11s, as these
became unreliable and untraceable, it became possible to alter the 2018 presidential election result. Once they became so contaminated, the V11s from the 10,985 polling stations from across the country’s 1,985 wards could not be relied upon.
This prompted Morgen Komichi, as chairperson of the MDC-Alliance whose presidential candidate was Nelson Chamisa, and Jameson Timba, who was Nelson Chamisa’s chief election agent, to write a letter to ZEC dated 02,08,2018 complaining about ZEC’s use of an Excel Spreadsheet and seeking access to the ZEC Server:
Zimbabwe Electoral Commission
RE: ACCESS TO ZEC SERVER
We approach you in connection with a matter that has caused us grave concern and which must be addressed before the announcement of the presidential results and addressed as a matter of urgency.
We are aware that the correct results of the elections have been inputted into the ZEC system and are in its server. Those results are a clear projection of the overwhelming winner of the presidential elections.
On the 2nd of August 2018 the legal Advisor to PRESIDENT NELSON CHAMISA had a conversation with certain ZEC officials at ZEC in connection with this matter of concern. A Mr Madzimure to whom Advocate Mpofu was referred to as the person best placed to address the concerns indicated that ZEC is ‘running a parallel’ data collection process. That parallel process includes an excel spread sheet on the one hand and a central server on the other. The process which the Election Agents are currently being asked to verify only relates to the excel spreadsheet.
The use of the excel spreadsheet is meant, in our considered view, to provide a basis upon which the presidential result is to be manipulated in that excel inputs can be altered. It is of concern that notwithstanding the existence of the parallel process, ZEC has only allowed access to the excel spreadsheet process. We have been allowed to verify a ruse. That process is not auditable and cannot be verified. Whilst that forms the backdrop, the crux of the matter is that PRESIDENT NELSON CHAMISA is entitled to have access to the results on the server. He is entitled to verify them. He is entitled to audit how those results, received in real time and immediately after counting, compare with the results on the excel spreadsheet.
We must however emphasize that the excel spreadsheet results are themselves not yet fully out. We however, have all the full results available and are clear on what we are talking about.
We point out that we had a meeting with the ACTING CHIEF EXECUTIVE OFFICER, Mr Silaigwana at which impromptu meeting these issues were raised. Mr Silaigwana whilst claiming that there is no parallel process in existence was however, not prepared to state on his name and honour that there is no server involved in the election process. Indeed it is unfathomable that there could be no central server and that an entire election could be run on an excel spreadsheet. We will not allow ZEC to take us for fools. Further, Mr Silaigwana refused our request to have our experts confer with the ZEC experts over the issue. Obviously there is something that he intends to hide. What he intends to hide in our view is that there is an ongoing process to manufacture results. Indeed there exists authentic results that ZEC is prepared to hide from the electorate. That with respect is completely unacceptable.
We point out that you had advised the nation that the Presidential Election results would be announced at 12:30 on 1st August 2018. You were correct that this could be done for the following reasons:
- The Presidential votes are counted ahead of the Parliamentary votes. You could not have results of Parliamentary Elections unless you also had results of the presidential elections.
- Once voting is complete results are immediately transmitted by radio or some such process to the National Command Centre. The forms will then follow by normal deliberate process and those are meant to verify results already received. You are obviously aware of the irregularities that attend to the manner in which the relevant forms were collected and that is an issue to be addressed on some other day.
- All your actions point to an intention to ‘manage’ the results of the presidential election. The reason you have done so is quite clear.
You accordingly have these results and you have a constitutional obligation to ensure that the correct results are announced. The people of Zimbabwe are entitled to and demand no less.
In view of the foregoing, we call upon you to do the following:
- That you immediately allow us as PRESIDENT CHAMISA’S agents and the technical experts, access to the server so that we can audit same and reconcile those results with what is being inputted on the excel spreadsheet.
- Immediately take steps to ensure that the results on the server and those being inputted on the excel spreadsheet are reconciled.
We demand your written assurance that this shall be done and such assurance must be given by 17:00 PM.
We wish to indicate that this letter is not on letterhead because the military has barricaded and access to the MDC Headquarters where such letterheads are otherwise kept.
Kindly do the right thing as you are mandated by the constitution in the interests of transparency, credibility and verifiability of our election.
Chief Election Agent
It is notable that ZEC did not respond to this letter, because it did not want to commit itself in writing and put itself on record. The failure of ZEC to respond in writing not only proves something was fundamentally amiss, but it is also a blatant and outrageous violation of its constitutional responsibility and duty to act transparently. Why would a constitutional electoral body not respond to letters from a key stakeholder?
Confirmation that ZEC operated a SEVER, with the
Results, was given by none other than Emmerson
Mnangagwa himself in his SWORN Opposing Affidavit to
the Founding Affidavit filed by Nelson Chamisa in the Constitutional Court challenge to ZEC’s declaration of Mnangagwa as the winner of the 2018 presidential election. Mnangagwa makes the confirmation from paragraphs 116 to paragraphs 118.8 of his opposing affidavit which are produced verbatim below:
116. Pharagraph 5.1
I observe that the Applicant confirms that his agents were allowed to freely view what was happening within the 23rd Respondent’s command centre, belying any suggestion that there was something to hide. The short sentence: ‘for close to two days that process continued’ is important: Applicant’s representatives had an unlimited time within which to observe what was going on. And it is crucial to bear in mind that the people they were watching were ‘…in excess of twenty’.
117. The suggestion that an organisation with a nefarious plan to steal an election as Applicant suggests would have in excess of twenty’ people working independently of each other under the full glare of election agents but still manage to run a coordinated and systematic conspiracy to defraud one candidate is just not credible. How is it being suggested that they relayed messages to each other as to how many votes needed to be ‘massaged’? Excel as far as I am aware is not a messaging service, so how is it being suggested that these ‘in excess of twenty people’ received instructions from 23rd Respondent to steal the election in front of Messrs Komichi and Timba?
118. Paragraph 5.2
The Applicant says here: “I was also aware that twenty third respondent had received, as it should do, results from all polling stations in real time and stored them into its server”. I think at this point it is necessary to pause and reflect on the following very important issues:
118.1 This is not an ordinary matter that the Court has to decide, but one which determines, for good or ill. The person that gets to be head of state of our country for the next five years. It is a solemn matter.
118.2 23rd Respondent is trusted with the solemn duty of superintending over one of our democracy’s most important moments: national elections.
118.3 In order to carry out this solemn duty 23rd Respondent is trusted with very sensitive information on each of our citizens old enough to vote. Names, addresses, ID numbers, sex, fingerprints and photographs.
118.4 The Applicant confirms in his papers, and the affidavits of his surrogates, that he was refused access to the 23rd Respondent’s server.
118.5 We know from 23rd Respondent that sensitive information on our citizens had been hacked, and people have been able to access said information and even amend it.
118.6 But, again, we know that Applicant’s representatives were denied access to what they called a server.
118.7 So, one must ask, exactly how did applicant know that results from all polling stations were being received in that putative server in real time? The only inference that can be drawn is that the applicant or those working with him were responsible for the hacking, accessing of data on 23rd Respondent’s server.
118.8 It is known that one of the websites utilising information obtained from 23rd Respondents website through hacking has published graphs and statistics that are eerily similar to those that were simultaneously being filed with this S93 application.
It is notable that under 118.4 of his opposing affidavit,
Mnangagwa makes a startling confirmation of the existence
of the ZEC Server:
“The Applicant (meaning Nelson Chamisa) confirms in his papers and affidavits of his surrogates that he was refused access to the 23rd Respondent’s Server”. Yes, refused. One cannot be refused something that is not there.
Mnangagwa further says, under oath, that Chamisa confirms, not alleges, but confirms, that he was denied access to the ZEC Server.
What this means is that Mnangagwa, not only as a presidential candidate but more importantly as President of Zimbabwe, acknowledges that there was a ZEC Server and notes, under oath, without any argument or disputation whatsoever that Chamisa was denied access to that Server by ZEC.
Even more startling is that Mnangagwa asserts under
paragraph 118 of his opposing affidavit that:
“We know from the 23rd Respondent (ZEC) that sensitive information on our citizens (voters) had been hacked and people have been able to access information and even amend it”.
This is mind boggling. It is beyond belief that the legal mind of Chief Justice Malaba, who has declared himself to be averse to numbers, allegedly in favour facts, was not drawn these manifestly scandalous facts about the existence of the ZEC Server, admitted by Mnangagwa under oath.
Although it is unnecessary, and is certainly of no major
consequence given Mnangagwa’s effective confirmation of the existence of the Server, it is instructive to examine ZEC’s position on the matter.
What is clear is that when ZDF and ZEC realised on the night of 30 July 2018 that Mnangagwa had lost the presidential election by a landslide, and that it would be more than a tall order to fiddle with the results in the ZEC Server, a plot was hatched to alter the results of the presidential election by abandoning the ZEC Server and going for “Plan B” using an Excel Spreadsheet, and playing loose with V11s at the National Command Centre where V11s are processed at all. This gave rise to Excelgate.
Impeccable sources inside ZEC, both technical staff and two commissioners, confirmed in the strictest of confidence that according to the presidential results in the ZEC Server, Chamisa got 66% of the presidential vote and Mnangagwa 33%.
The information from the confidential ZEC sources is important not for purposes of confirming that there was a ZEC Server, but for disclosing the content of what is in the Server.
This is because the existence of the Server is common cause, given its confirmation by none other than Emmerson Mnangagwa himself and ZEC’s confirmatory ambivalence on the matter.
Regarding the content of the ZEC Server, it is notable that the ZEC figures generated from its Excel Spreadsheet were by all accounts, untraceable, unverifiable, unreliable and therefore inherently unusable.
On paragraph 31 of their affidavit opposing Nelson Chamisa’s founding affidavit in the Constitutional Court challenge to ZEC’s declaration of Mnangagwa as the winner of the 2018 presidential election, Priscilla Chigumba and ZEC make this averment:
“Despite the applicant’s averments under paragraph 4.5.32 and 4.5.33 of his founding affidavit to the effect that his election agents were not notified of the date and place of verification and were not given an opportunity to make notes of the contents of CONSTITUENCY RETURNS (the V23Bs) the applicant under paragraph 5.1 of his founding affidavit makes the opposite averment. He admits that his election agents were called for a verification process, he admits that they heeded this call and came to the 23rd respondent’s national command centre where the verification was taking place, he admits that his agents were present when the verification process was underway, he admits that the verification process went on for TWO DAYS with his election agents in attendance. This coupled with the affidavits by Mrs. Pamela Mapondera and Mrs. Mavis Mudiwakure attached and already referenced, shows that not only were his agents in attendance, they participated in the verification process. As part of the verification process, the applicant’s election agents, election agents for other presidential candidates as well as election observers had full access to the original V11s and V23s with respect to the presidential election from which they could make notes as they required”.
The submissions by Chigumba and ZEC, under oath, are significant in TWO IMPORTANT RESPECTS:
First, they clearly confirm that at the National Command Centre, the verification of presidential election results is supposed to verify CONSTITUENCY RETURNS, and these are V23B forms. In other words, unlike the polling stations and the collation stations that verify V11 forms, the National Command Centre verifies the V23B forms that are forwarded from the country’s 210 constituencies via provincial command centres.
Second, Chigumba and ZEC confirm that the verification exercise took Two Days. But what was being verified?
Although Chigumba and ZEC start by submitting that the National Command Centre was verifying CONSTITUENCEY RETURNS (that is V23 forms from 210 constituencies, they, perhaps inadvertently reveal that the verification at the National Command Centre also included polling stations returns, namely V11s.
There’s no need for a rocket scientist to understand or realise that it is impossible to verify V23s forms from 210 constituencies and V11s from 10,985 polling stations in 1,985 wards across in TWO DAYS.
But what V11 forms were these? Were the V11 forms being verified at the National Command Centre over two days from the country’s 10,985 polling stations in 1,985 wards? How traceable were these V11s?
The untraceability of these V11s, whose data was inputted onto the Excel Spreadsheet was poignantly raised by the EU Observer Mission:
“ZEC provided stakeholders with a free CD-ROM copy of presidential results, in a protected excel format. Local council election results and details on postal ballots remain outstanding. The results provide a breakdown per polling station, apparently based on original V11s. As these results are not in the official V11 form, they do not provide the full traceability which the EU EOM had called for in its preliminary statement”.
On paragraph 32.2 of their opposing affidavit, Chigumba
and ZEC make the following submission under oath:
His (Chamisa’s) suggestion is also curious as it comes immediately after he avers that for close to two days the Electoral Commission’s staff were busy manually entering data from original V11 forms onto an excel spreadsheet.
Effectively Chigumba and ZEC are admitting that their officers, whose unchallenged number is given as around 20, spent two days ‘BUSY MANUALLY ENTERING DATA FROM ORIGINAL V11 FORMS ONTO AN EXCEL SPREADSHEET”.
This is scandalous. This is Excelgate.
Again, what original V11 forms were these? Did they represent the country’s 10,985 polling stations from the country’s 1,985 wards? Is it possible for 20 or so officers to spend two days “busy manually entering data from original V11 forms onto an excel spreadsheet”?
Seemingly unaware of the scandalous implications of their
submissions under oath, Chigumba and ZEC assert with
amazing irony on paragraph 32.3 of their opposing affidavit that:
“As he (Chamisa) has alleged the existence of a server, it is incumbent upon the applicant to prove his allegation”.
The assertion that it was incumbent on Nelson Chamisa to prove the existence of the Server on account of “his allegation”, is at the heart of what’s wrong with ZEC, as a Chapter 12 Constitutional commission, and what is wrong with the judiciary in Zimbabwe, against the backdrop of Zimbabwe’s new Constitution.
In the first place, as a Chapter 12 Constitutional Commission, ZEC must not play hide and seek with contestants in elections; asking them to prove things that ZEC is either doing in bad faith, opaquely or unconstitutionally. As a Chapter 12 Constitutional Commission, ZEC has the following duties arising from its constitutional objectives as set out under section 233 of the Constitution:
“The independent Commissions (of which ZEC is such) have the following general objectives in addition to those given to them individually—
(a) to support and entrench human rights and democracy;
(b) to protect the sovereignty and interests of the people;
(c) to promote constitutionalism;
(d) to promote transparency and accountability in public institutions;
(e) to secure the observance of democratic values and principles by the State and all institutions and agencies of government, and government-controlled entities; and
(f) to ensure that injustices are remedied”.
More specifically, section 239(a) of the Constitution gives the following key functions to ZEC:
(a) to prepare for, conduct and supervise—
(i) elections to the office of President and to
(ii) elections to provincial and metropolitan councils and the governing bodies of local authorities;
(iii) elections of members of the National Council of Chiefs established by section 285; and
and to ensure that those elections and referendums are conducted efficiently, freely, fairly, transparently and in accordance with the law;
Therefore, in general, regarding the question of its Server, ZEC dismally failed to discharge its constitutional duty to be transparent, as it is required to be under section 239(a) of the Constitution.
ZEC’s position that Nelson Chamisa needed to prove that it had a server, belies the evidence provided by none other than Emmerson Mnangagwa, whose submissions under oath in his opposing affidavit leaves absolutely no doubt that there was indeed a ZEC server. Attempts by ZEC to either hide or run away from this fact is not only unconstitutional but is also a telling manifestation of Excelgate.
The evidence of the Server and its contents, which showed
that Chamisa had gotten 66% of the vote and Mnangagwa 33%, was key to Chamisa’s ConCourt case.
When Chigumba and ZEC refused to discharge their
constitutional duty in terms of being transparent about the Server and its contents, Nelson Chamisa turned to Chief Justice Malaba, ahead of the hearing of the presidential election constitutional challenge.
Upon lodging his Constitutional Court challenge to ZEC’s
declaration of Emmerson Mnangagwa as the winner of the
presidential election and given ZEC’s refusal to discharge its constitutional duty to be transparent about its election Server and contents thereof, Nelson Chamisa procedurally served a Subpoena Duces Tecum on Chigumba, ZEC and ZEC’s Chief Elections Officer, as well as on the rest of the Respondents, including Mnangagwa. The wording of the subpoena was as follows:
On 20 August 2018, the Registrar of the Constitutional
Court responded to the subpoena with the following directive (ruling?) from Chief Justice Luke Malaba:
Using a baseless technicality, given the importance of the matter, Chief Justice Malaba singularly, and without reference to any law, blocked Nelson Chamisa’s subpoena for the ZEC Server or the contents thereof, in relation to the 30 July 2018 presidential election, to be brought to the ConCourt for legal scrutiny. This is the same Chief Justice Malaba who went to town about the remedies available to election contestants, through court process, who have cause to challenge ZEC for one reason or another. It’s also the same Chief Justice Malaba who went beyond during the ConCourt with the refrain that “he who alleges must prove”. How does a litigant in an election petition prove anything when and where a Chief Justice endorses the opaque conduct of an election body?
By blocking the subpoena on the flimsiest of technical excuses, while sitting alone, Chief Justice Malaba acted ultra vires in blatant violation of the Constitution, given ZEC’s constitutional duty under section 239 of the Constitution.
Justice Malaba has no power to prevent a Chapter 12 Constitutional Commission from being transparent in the discharge of its constitutional functions. In any event, it was disingenuous for Chief Justice Malaba to refer to the 16 August 2018 Case Management Meeting as a Pre-Trial Conference.
Given the stalemate, on 20 August 2018, Nelson Chamisa’s lawyers wrote to Chief Justice Malaba requesting an audience with the Chief Justice Malaba:
On 21 August 2018, Chief Justice Malaba responded by advising that he was no longer meeting any lawyers:
When the lawyers pressed on with their request, Chief Justice Malaba responded by shutting the door:
Chief Justice Malaba was now raising the issue of the evidentiary relevance of the Server. Is it possible that a Server with the results of the presidential election could be irrelevant? Chief Justice Malaba had changed goal posts in less than 24 hours. The previous day, he had said the matter was not among the issues included in his Pre-Trial Conference Order of 16 August 2018.
Now the issue had changed from that to the admissibility of the subpoena regarding its relevance from an evidentiary point of view.
The goal posts had radically changed overnight. Raising the matter before the full bench during the hearing was a pie in the sky, and therefore out of the question. Chief Justice Malaba had succeeded to keep the ZEC Server outside the hearing and thus off the case. This was repugnant to justice and a travesty of the Constitution. Excelgate was in full swing. Chief Justice Malaba was a cog in the operation.
Besides the use, and more accurately the abuse, of office on
the back of the de facto military coup that had been in force
since 15 November 2017, Excelgate involved using a
potpourri of authentic and fake V11s and V23Bs to abandon
a secure ZEC Server and to input fresh data onto an insecure Excel Spreadsheet to alter the presidential election result in the ZEC Server.
This was done because neither ZEC nor ZDF had the technical capacity or expertise to manipulate and change the election data in the Server.
As earlier mentioned, Morgen Komichi and Jameson
Timba annexed to Nelson Chamisa’s founding affidavit supporting affidavits on how V11s and V23s were manually inputted onto an Excel Spreadsheet by 20 or so ZEC officers over two days from 1 August 2018. Their affidavits are important to reproduce here verbatim:
The affidavits by Timba and Komichi are instructive. On paragraph 13, 14 and 15 Timba makes the following revealing averments:
13. “On the 1st of August 2018, I was invited by ZEC to
verify constituency returns for the Presidential Election. On arrival at National Results Centre where ZEC was collating results for the Presidential Election on the basis of data from all ward returns, that is Form V23a accompanied by polling station returns (i.e. Form V11), these forms were laid before me by Mr. Murenje, the ZEC Director of Elections and Training”.
14. “Mr. Murenje did not present to me the constituency return (that is Form V23B”.
15. “I observed that ZEC was entering information from Polling Station Returns (V11 Forms) onto a formatted excel spreadsheet in order to generate the constituency return for the Presidential Election which was supposed to be laid before me for inspection and taking notes. This did not happen”.
The critical issue that arises from Timba’s averments, especially the parts that are not rebutted by ZEC and Chigumba in their affidavits on record, is that the one and only presidential polling return that is required by law to be verified was totally ignored not only by ZEC but also by the Constitutional Court in the rush to be preoccupied with V11s. The verification of the presidential election result is governed by section 110 together with sections 65(2)(b), 65A(2)(b) and 65B(2)(b) of the Electoral Act (cap. 2:13) as amended. Section 110(3)(d) specifically and only mentions the Constituency Return, which is the V23B Form, as the returned to be verified. On paragraph 14 of his affidavit Timba avers, without being contradicted by ZEC or Chigumba, that Mr Murenje did not present to him the constituency return, namely, Form V23B.
On paragraph 3 of his affidavit Komichi avers that:
“In the morning of August 2018, I met with Mr. Utoile Silagwana, the Acting Chief Elections Officer (CEO) for the 23rd Respondent and requested copies of the Presidential Elections constituency returns for verification before announcement of the results for the Presidential Election by the Charirpeson of ZEC”.
Komichi’s averments on paragraphs 3 and 4 of his affidavits are crucial in that they place on record the fact that ZEC was specifically requested to present by Nelson Chamisa’s election agents to present constituency returns, that is Form V23B, for verification of the presidential election result in accordance with section 110(3)(d) of the Electoral Act but ZEC failed to do so. Instead ZEC illegally insisted on using the ward returns, namely, the V23A Forms, to which were attached untraceable and unverifiable duplicate V11 Forms that some 20 ZEC and Army officials had manually inputted onto an excel spereadsheet over two days.
The damning evidence in the supporting affidavits of Morgen
Komichi and James Timba on how V11s and V23s were
manually inputted onto an Excel Spreadsheet by 20 or so ZEC officers over two days from 1 August 2018, is unimpeachable. As already shown, Emmerson Mnangagwa, Chigumba, ZEC’s Chief Election Officer corroborate that evidence.
Parenthetically, it is notable as a matter of grave concern
that, while 20 or so ZEC officers, believed to be ZDF officers
and coordinated by ZDF, were manually inputting data from
V11s and V23s at ZEC’s National Command Centre in Harare on 1 August 2018, the day would end in bloodbath with at least six civilians shot dead by ZDF and ZRP in cold blood with at least 35 others left with serious gunshot wounds.
This was confirmed by the Kgalema Motlanthe Commission which found that:
“It is undisputed that six (6) people died as a result of gunshot wounds and according to the evidence from the two major hospitals twenty-three (23) people were injured as a result of gunshots and one (1) person of assault. As noted above, in addition to these persons there were eleven (11) persons who did not attend these hospitals, who were injured as a result of actions of the Military and the Police. The total number of persons injured is therefore thirty-five (35)”.
Whereas there were attempts by ZDF, Zanu PF, government and the state media to place the blame for the dead and wounded on the MDC-Alliance and civic society, the Motlanthe Commission was clear and specific on whose actions were behind the deaths and injuries:
“The Commission’s finding on a balance of probabilities from all the evidence received is that the deaths of these six (6) people and the injuries sustained by thirty-five (35) others arose from the actions of the Military and the Police”.
It was no coincidence that the 1 August 2018 atrocities were
committed as 20 or so ZEC officers, believed to be ZDF
officers or who included ZDF officers, were manually inputting fresh data from unverified and in fact unverifiable V11s and V23s onto an insecure Excel Spreadsheet, after abandoning the presidential election results on the ZEC Server. This becomes apparent when the behaviour of ZRP and ZDF officers regarding the atrocities of 1 August 2018 is considered.
It is revealing that, according to the Motlanthe Commission,
ZDF and ZRP anticipated the 1 August 2018 “public
disorder” in Harare and pre-planned how to deal with it; on 29 July 2018; even before the 30 July 2018 elections. This is contained in a letter to the Officer Commanding Harare Province written by Chief Superintend A. Ncube, Officer Commanding Police in Harare Central District, who thus prefaced his letter:
“I refer to my letter dated 29 July 2018 on anticipated public disorder in my district. There are approximately four thousands protesters on the streets of the Central District (CBD) of Harare protesting alleged rigging of the just ended elections”.
On the same day,1 August 2018, Commissioner General
of Police, T G Matanga wrote to Obert Mpofu, Minister of Home and Cultural Affairs:
“I write to request, in terms of Section 213(2) of the Constitution of Zimbabwe, as read with Section 37(1) of the Public Order and Security Act (Chapter 11:17), for the immediate assistance of the Zimbabwe Defence Forces to suppress the violent disturbance of peace and security in Harare Central Police District, and other districts around Harare Metropolitan Province”.
The chain letter then scaled up with Obert Mpofu writing to General Chiwenga:
“As per our telephone conversation in the morning in connection with the above matter (request for immediate assistance to by the Zimbabwe Defence Forces to maintain public order in Harare Central Police District), please find attached self-explanatory letters from the Commissioner General of Police dated 29th July and 1st August 2018 respectively”.
Further to Obert Mpofu’s letter, Chiwenga then upped the ante by writing to Mnangagwa:
“Your Excellency, pursuant to Section 213(2)(b) of the Constitution of Zimbabwe as read with Section 37(1) of the Public Order and Security Act (Chapter 11:17), the Minister of Home Affairs and Cultural Heritage is requesting for the immediate assistance of the Defence Forces for the purpose of suppressing violent disturbances in Harare Central Police District and other areas in Harare Metropolitan Province”.
To complete the not so subtly choreographed Excelgate plot punctuated by a series of premediated letters designed to create a paper trail of false legality to cover the operation hatched on 29 July 2018, Chiwenga wrote to the ZDF Commander, General Philip Valerio Sibanda:
“General, pursuant to Section 213(2)(b) of the Constitution of Zimbabwe, as read with Section 37(1) of the Public Order and Security Act, the President as Commander-in-Chief of Defence Forces has authorised the deployment of the Defence Forces, in support of the Police Service in the maintenance of Public Order”.
The chain of letters is revealing:
- The letters motivating for the deployment of
a ZDF soldiers footnote 29 July 2018 correspondence that ANTICIPATED PUBLIC DISORDER in Harare.
- The letter from Obert Mpofu to Chiwenga was
A ploy to deploy soldiers in Harare on 1 August 2018 as a pre-planned operation: Mpofu reminds Chiwenga that he is writing to him, “AS PER OUR TELEPHONE CONVESATION IN THE MORNING in connection with the above matter (request for immediate assistance to the Zimbabwe Defence Forces to maintain public order in Harare Central Police District”.
- The conversation between Mpofu and
Chiwenga was in the morning of 1 August 2018, before any situation in Harare warranted deploying the Police, let alone soldiers. This, along with the 29 July 2018 correspondence, gives away the pre-planned plot to deploy ZDF soldiers on the same day as 20 or so ZEC officers with ZDF officers were manually inputting V11 and V23 data onto an Excel Spreadsheet to alter the presidential election result from what was in the ZEC Server.
- What was the purpose of unleashing ZDF soldiers in Harare on 1 August 2018?
- Aware that Excelgate was underway at the ZEC National Commander Centre in Harare, the main strategy was to send an ominous message to the public in general, and especially to Harare residents, that any protests after the Excelgate result is announced would be a life-threatening proposition.
- The deployment of ZDF soldiers on 1 August 2018 had nothing to do with what was obtaining on the ground in Harare on that day but was informed by the objectives of the plot hatched on 29 July 2018 in “anticipation of public disorder” in the capital city.
- By 29 July 2018, all polls by each of the security organs (MID, CIO and PISI) that make up the Joint Operations Command (JOC), to predict the outcome of the 30 July 2018 presidential election, were showing Mnangagwa badly trailing Nelson Chamisa, and getting no better than 40% of the vote.
- In fact, it is curious that on 19 July 2018, hardly a week before the revealing 29 July 2018 correspondence that ANTICIPATED PUBLIC DISORDER in Harare that occurred on 1 August 2018, ZEC alleged that its sever had been hacked. The media reported that “Under fire Zimbabwe Electoral Commission (Zec) chairperson Justice Priscilla Chigumba had sensationally claimed that suspected hackers had recently broke onto the electoral management body’s database and stole crucial information on the biometric voters roll, escalating fears of electoral manipulation ahead of the poll”. The claim was sensational and suspicious not least because Chigumba made it in response to allegations that ZEC had leaked personal phone numbers to Zanu-PF from the ZEC server. Given the pre-election polls by security agencies that showed Mnangagwa losing to Chamisa, the link between claims that the ZEC Server had been hacked and the 29 July security correspondence is unmistakable.
- The security pre-election polls raised concerns about Mnangagwa’s non electability and fed into impeachment chatter against Mnangagwa within Zanu PF ranks. On 30 May 2018, South Africa’s Independent Online reported that Mnangagwa had said that he had unearthed a plot to impeach him soon after the elections by legislators from his own Zanu PF party.
- Given the security polls that showed Mnangagwa being humiliated by Chamisa on 30 July 2018, the 29 July plot was twofold: first, come up with “Plan B” to alter the presidential election result on the ZEC Sever by inputting fresh V11 and V23 data onto an Excel Spreadsheet; and second, show and use massive force in Harare by deploying lethally armed ZDF soldiers ahead of the ZEC declaration of the Excel Spreadsheet presidential election result, to intimidate the public, Harare residents, ZEC and the judiciary.
- When ZDF soldiers were deployed in Harare with lethal ammunition, their mission was not to restore any public order, if fact there was no public disorder in Harare, but it was to show what lethal force the Army by using it against civilians. It is in this context that ZDF soldiers used disproportionate force. The Motlanthe Commission made the following observation about the proportionality of the Army’s actions on 1 August 2018:
“The Commission has considered the proportionality of the Army’s actions in relation to the available evidence of the threat to public safety that had to be addressed. There was evidence received of life and property being under direct threat as noted above. In these limited circumstances, the use of warning shots could be considered proportionate. However, where there is evidence of civilians being directly fired on (as summarised below), the equation clearly changes. The evidence provides no justification for the use of live ammunition directly against protestors”.
- Again, the purpose of the lethal force used by ZDF is to be found not in what was happening in the streets of Harare but in what was happening at the ZEC National Command Centre; where data from some dubious V11s and V23s was being inputted onto an insecure ZEC Excel Spreadsheet to circumvent using the presidential election results in the ZEC Server.
It is notable that the V11s and V23s that were inputted onto
the ZEC Excel Spreadsheet and the presidential election results that were declared by ZEC on 3 August 2018, were done against the backdrop of the bloodbath of ZDF atrocities committed in Harare on 1 August 2018.
There’s an umbilical nexus between the ZDF atrocities of 1
August 2018 and the ZEC manipulation, in fact theft, of the 2018 presidential election using an excel spreadsheet. That nexus was Excelgate.
It is apparent that ZDF and ZEC became aware on the
night of 30 July 2018 that Mnangagwa had been dramatically defeated by Nelson Chamisa based on the results that had been inputted onto ZEC Server and that hacking the Server was an impossible proposition in the prevailing climate.
ZEC sources, who include two commissioners confirmed that, according to the 2018 presidential results in the ZEC Server, Chamisa got 66% of the presidential vote while Mnangagwa got 33%.
To go around this hurdle in the Server, a plot was hatched to
alter the results of the presidential election by abandoning the ZEC Server altogether and coming up with a “Plan B” that required inputting afresh data from V11s and V23s onto an Excel Spreadsheet. This was the essence of Excelgate.
The makings of Excelgate became all too apparent on 2
August 2018, the day after the Harare Army atrocities, when ZEC’s media liaison Commissioner, Qhubani Moyo, told the media that the ZEC website which had been setup to publish the 2018 election results had been hacked and suspended. A picture acknowledging the 1 August 2018 protests was placed by the alleged hackers front and centre where the Commission used to host its own content. This curious incident was used to justify abandoning the ZEC Server in favour of an even more unreliable excel spreadsheet.
The proof of Excelgate is in the Mnangagwa, Chigumba
and ZEC opposing papers to the Constitutional Court challenge to ZEC’s declaration of Emmerson Mnangagwa as the winner of the 30 July 2018 presidential election.
The affidavits clearly show that the verification of presidential
election results at the National Command Centre must verify CONSTITUENCY RETURNS, namely, V23B forms. This is because, unlike what happens at the polling stations and collation centres that tabulate and verify V11 forms, the National Command Centre verifies the V23B forms from the country’s 210 constituencies.
Specifically, Chigumba and ZEC admit in their opposing papers that the “verification” exercise, which in fact the inputting of data from selected V11s onto the Excel Spreadsheet, took two days. Although Chigumba and ZEC start by confirming that the National Command Centre should verify CONSTITUENCEY RETURNS (that is V23B forms from 210 constituencies, they nevertheless reveal that the verification at the National Command Centre included polling stations returns, namely V11s.
This begs an obvious question: what were V11 forms being verified at the National Command Centre? What were V11s doing at the National Command Centre? What was the reason for verifying V11s? Given that there are 10,985 polling stations in 1,985 wards, did the verification of V11s at the National Command Centre include all polling stations, or did it involve only some polling stations?
And if, for constitutional reasons of transparency and impartiality, the two-day verification at the National Command included all V11s from all the 10,985 polling stations, how on earth was it possible to do the verification in two days and using 20 or so officers who, according to Chigumba, “were busy manually entering data from original V11 forms onto an excel spreadsheet”.
Once they became available for processing at the National
Command Centre in Harare, the V11s from the 10,985 polling stations from across the country’s 1,985 wards could not be relied upon. V11s are only processed at polling stations and collation centres.
Under paragraph 77 of his Heads of Argument in the
Constitutional Court case challenge ZEC’s declaration of Emmerson Mnangagwa as the winner of the 2018 presidential election, Nelson Chamisa makes the following submission:
“…While it’s correct that section 10(3)(d) (of the Election Act) is silent on verifying Excel spreadsheets and data storage, the ZEC has an overriding constitutional duty to ensure that voting is “accurate, verifiable, secure and transparent” and that there are “appropriate systems and mechanisms in place to eliminate to eliminate … electoral malpractices”. At any rate, ZEC had no business dealing with v11’s at the National Command Centre’’.
The fact that ZEC had no business dealing with V11s at the National Command Centre is fundamental to unravel because it is at the core of Excelgate. What was ZEC doing, playing with V11s at the National Command Centre?
Neither ZEC nor Mnangagwa explained in their Heads of
Argument, or any other submission before the Constitutional Court, what business ZEC had to handle V11s at the National Command Centre.
For reasons of the transparency, credibility and
accountability of the electoral process and the integrity of election results, it is important to understand the various forms that are used to record and declare election results as well as the levels where the results are declared and what form is used to declare the results from the 10,985 polling stations; to 1,985 wards; to 210 constituencies in the country’s 59 rural districts through the 10 provincial command centres to the National Command Centre. The process involved is detailed below.
10,985 POLLING STATIONS
A polling station is the basic electoral unit through which a voter interacts with or engages the electoral process. In other words, a polling station is where a voter votes and where the vote is counted and recorded. Zimbabwe has 10,985 polling stations. The most important document or form that records the votes counted at a polling station is the V11 form. After the votes have been counted and verified at a polling station, the votes attained by every candidate in the ward election for councillor, constituency election for Member of the National Assembly and the national election for the President of the Republic are recorded on a V11 form. Once the recording of the results is completed and verified, the V11 is signed by the presiding officer for the polling station and countersigned by the polling agents of each candidate for the three elections. A copy of the signed V11 is posted outside the polling station. He results on these V11s are inputted onto the ZEC Server. Another copy is put together with the election residue from the polling station into a box that is sealed with the signatures of the presiding officer and polling agents affixed on the seal. The box with the original residue can only be unsealed with a court order. Another copy of the signed V11 with the polling station results and signatures of the presiding officer and the polling agents is put into an envelope which is sealed; and the seal has the signatures of the presiding officer and polling agents. The sealed box with election residue from the polling station along with the sealed envelope with the V11 containing the election results for the ward, constituency and presidential elections are then sent to the ward collation centre. It is important to keep in mind that there are 10,985 sealed boxes and sealed envelopes with V11s. The sealed 10,985 boxes are not opened without a court order.
1,985 COLLATION (WARD CENTRES)
Sealed ballot boxes with election residue from each the polling stations in the ward and sealed envelopes with V11s from each of the polling station in the ward are brought by ZEC officials, under Police escort and accompanied by polling agents who signed the sealed envelope, to the ward collation centre. There are 1,985 ward collation centres in Zimbabwe. When the ward election officer receives the sealed envelopes with V11, he causes them to be unsealed and opened in the presence of the polling agents who affixed their signatures on the seals. When all the sealed envelopes from the polling station that makes up the ward have been unsealed and opened, the ward election officer, assisted by polling officers, with the polling agents observing, adds the votes for the ward election for Councillor, constituency election for Member of the National Assembly and national election for President on the V11s and records the results on the B23A form. Once these results on the V23A form are verified, the presiding officer DECLARES the winner in the ward election as the duly elected Councillor for the ward. The V23A with the results is posted outside the ward collation centre with the results of the DECLARED ward councillor, the ward votes for the constituency election for Member of the National Assembly and the ward votes for the national election for President. An original copy of the V23A form with the results of the ward votes, together with the V11s from the polling station, are put with the residue of election material from the ward collation centre into a box. The box is sealed and the presiding officer of the ward centre, as well as the polling agents assigned to the ward collation centre, affix their signatures on the seal of the box. Another copy of the original V23A form is put onto an envelope, the presiding officer and polling agents affix their signatures on the seal of the envelope which is then sealed. The sealed envelope and the sealed box with the electoral residue from the ward centre, which include V11s from the polling station in the ward and an original copy of the V23A from the ward, along with other electoral material from the ward collation centre, are taken to the constituency centre under Police escort, accompanied by the polling agents whose signatures are on the sealed box and sealed envelope. It is important to underscore that when the collation of ward results is verified and complete, nationally, there are 1,985 sealed boxes with V11s and V23A forms. This is the last election centre that handles V11s. After this stage, all the genuine or original V11s are sealed in 1,985 boxes and can only be accessed via a court order as election residue. Going forward, there are 1,985 V23A forms that are sent to constituency centres in sealed envelopes which are opened at the constituency centres. Notably, in terms of the proviso under section 37C(4)(b)(ii) of the Electoral Act (Cap.2:13) as Amended, copies of the V11s from each polling station in the Ward, with results of the presidential election are sent directly by the Ward Collation Centre to the National Command Centre for inputting onto the ZEC Server. It’s important to note and underscore that these are DUPLICATES (or copies) and not original V11s.
210 CONSTITUENCIES (CONSTITUENCY CENTRES)
Sealed ballot boxes with election residue from the ward collation centres and 23A forms in sealed envelopes from the ward collation centres, under the Police escort and accompanied by the polling agents who affixed their signatures on the seals of the envelopes, are sent to constituency centres. There are 210 constituency centres in Zimbabwe. The constituency election officer receives the V23A forms from the ward centres in the constituency. Upon confirming with polling agents, the signatures on the seal of the envelopes, the presiding officer unseals the envelopes to access the V23A forms and to verify them with the polling agents. The results for the constituency election for the Member of the National Assembly and the national election for President recorded on the V23A form are then collated and counted. The totals of these results are recorded on the V23B form. After these results have been verified and confirmed with the constituency polling agents of the candidates for the constituency election for the Member of the National Assembly and the national election for the President, the constituency presiding officer DECLARES the winner of the constituency election as the duly elected Member of Parliament for the constituency. The declared result for the constituency election for the Member of the National Assembly, along with the result of the national election for the President, are recorded on V23B form, signed by the constituency presiding officer and the polling agents and posted on a board outside the constituency centre. The V23A form that came from the ward collation centre is put onto a ballot box together with election residue from the constituency centre. The box is sealed and the constituency presiding officer and constituency polling agents affix their signatures on the seal. Once sealed, the box with this electoral material cannot be opened without a court order. Only this material is the authoritative material. With the concurrence or confirmation of polling agent, the presiding officer puts the signed B23B form with the already DECLARED result of the constituency election and national election for the President in an envelope, signs the seal together with polling agents and the envelope is sealed. The V23B in the sealed envelope is then transmitted to the National Command Centre via the provincial structures of ZEC. It is important to highlight and emphasize the fact that, for purposes of checks and balances, the V23A form forwarded to the constituency centre by the ward collation centre is at this stage sealed in the ballot box with election residue for the constituency centre. This residue cannot be accessed without a court order. These results are inputted onto the ZEC Server. What is transmitted forward in a sealed envelope to the National Command centre is the V23B form, containing the already DECLARED result of the constituency election and the constituency result of the national election for President. There are 210 such sealed envelopes containing the V23B form that is opened at the National Command Centre. Significantly, it should be noted that, in terms of the proviso under section 37C(4)(d) of the Electoral Act (Cap.2:13) as Amended, copies of the V23Bs from each Constituency Centre, with results of the presidential election are sent directly by the Constituency Centre to the National Command Centre for inputting onto the ZEC Server. It must be emphasized that these V23B forms sent to the National Command Centre are DUPLICATES (or copies) and not originals.
10 PROVINCIAL COMMAND CENTRES
Sealed ballot boxes with election residue from the constituency centres and V23B forms in sealed envelopes from the constituency centres, under the Police escort and accompanied by the polling agents who affixed their signatures on the seals of the envelopes, are sent to provincial command centres. There are 10 provincial command centres in Zimbabwe. The provincial election officer receives the V23B forms from the constituency centres in the province. Upon confirming with polling agents, the signatures on the seal of the ballot boxes with the election residue and the envelopes with the V23B, the presiding officer unseals the envelopes to access the B23B forms and to verify them with the polling agents who are present. The results for the constituency election for the Member of the National Assembly and the national election for President recorded on the V23B forms are then collated and counted to get the totals for the province which are recorded on V23C forms. After these results have been verified and confirmed with the constituency polling agents of the candidates for the constituency election for the Member of the National Assembly and the national election for the President, the provincial presiding officer proceeds in accordance with Eighth Schedule (Sections 45C(5) and 45(1)) to determine the 10 Senators and 10 Women’s Quota members of the National Assembly to represent the province in Parliament; and the 10 members of the provincial council based on the party-list system. President, are recorded on B23B form, signed by the constituency presiding officer and the polling agents and posted on a board outside the constituency centre. The V23C form is put onto a ballot box together with election residue from the provincial command centre. The box is sealed, and the provincial presiding officer and polling agents affix their signatures on the seal. Once sealed, the box with this electoral material cannot be opened without a court order. Only this material is the authoritative original material. With the concurrence or confirmation of polling agent, the presiding officer puts the signed V23C form in an envelope, signs the seal together with polling agents and the envelope is sealed. The V23C in the sealed envelope is then transmitted to the National Command Centre. These results are inputted onto the ZEC Server. What is transmitted forward in a sealed envelope to the National Command centre is the V23C form. There are 10 such sealed envelopes containing the V23C form that is opened at the National Command Centre.
NATIONAL COMMAND CENTRE
It is notable that in a general or harmonised election, by this stage, DECLARATIONS of councillors representing 1,985 wards based on V11 forms and DECLARATIONS for National Assembly Members of Parliament representing 210 constituencies based on V23B forms would have been officially done at ward and constituency levels, respectively. The only election results that would not have been publicly declared are the winner of the national presidential election, the proportional votes for the candidates on the party list elected as senators and as women’s quota representatives in the National Assembly. In the 2013 and 2018 elections, declarations for the winners of party list candidates for provincial councils have not been declared, in blatant violation of the constitution. The declaration of the winners of the provincial councils, based on the proportional votes for candidates on the party list, would be expected to be done at provincial level. So far this has not happened. Instead sealed boxes with election residue, including B23A forms, from 210 constituency centres are received together with 210 sealed envelopes containing B23B forms with the already declared constituency results of 210 parliamentarians in the National Assembly and the results of the national election for President from each of the 210 constituencies. The 210 sealed boxes with election residue and original V23B forms can only be unsealed and opened with a court order. The 210 sealed envelopes with V23B forms that contain the constituency results in the national election for President are opened in the presence of the polling agents who accompanied the sealed boxes and sealed envelopes and who link up with the chief election agents of the presidential election candidates. The envelopes are unsealed with the polling agents present and the election results for presidential candidates on the V23B forms are collated, counted and verified, constituency by constituency, to determine the winner of the national election for President. The same results are contained in V23C forms from the 10 provincial command centres and are used to determine the proportional votes, based on a party list system, for the winning senators and women’s quota parliamentarians for each of the country’s 10 provinces in the National Assembly. The results are inputted onto the ZEC Server.
The legal description of the above process is in s37 of
the Electoral Act (Cap. 2:13), as amended, which provides for electoral centres and transmission of results to and between electoral centres; and in sections 65(2)(b), 65A(2)(b), 65B(2)(b) and 110 which provide for the verification of the presidential election result. The legal process is detailed below.
ELECTORAL CENTRES AND TRANSMISSION OF
RESULTS TO AND BETWEEN ELECTORAL CENTRES
Section 37C of the Electoral Act identifies four electoral centres, namely the polling station, ward collation centre, constituency centre, provincial command centre and national command centre as follows:
(1) The Commission shall designate a place—
(a) to be the National Command Centre from which it controls all elections conducted in terms of this Act;
(b) within each province, to be the provincial command centre for the purposes of—
(i) a presidential election conducted within the province; or
(ii) an election of party-list members of Parliament conducted within the province; or
(iii) an election of members of the provincial council established for the province;
(c) within each constituency, to be the presidential constituency centre for the purposes of a presidential election conducted within the province;
(d) within each constituency, to be the constituency centre for the purposes of an
election of members of the National Assembly conducted in the constituency;
(e) within each ward, to be the ward centre for the purpose of an election of councillors to the local authority concerned.[Subsection substituted by s. 12 of Act No. 6 of 2014]
(2) The Commission may designate the same place to be a constituency centre, a district
centre, a ward centre and additionally, or alternatively, a presidential constituency centre.[Subsection amended by s. 12 of Act No. 6 of 2014]
(3) The Commission may designate its head office or any other place to be the National Command Centre.
(4) The Commission shall ensure that the results of the presidential, National Assembly
and local authority elections are collated, compiled and transmitted in the following manner—
- with respect to local authority elections, polling-station returns gathered from every
polling station within a ward shall be transmitted to the appropriate ward centre in a return distinctly indicating the results obtained in each polling station relating to those elections;
(b) with respect to—
(i) presidential elections, polling-station returns gathered from every polling station within a ward shall be transmitted to the appropriate ward centre for collation at that centre, the results of which collation shall be embodied in a return (“presidential election ward return”) distinctly indicating the results obtained in each polling station relating to that election; and
(ii) National Assembly elections, polling-station returns gathered from every polling station within a ward shall be transmitted to the appropriate ward centre for collation at that centre, the results of which collation shall be embodied in a return (“National Assembly election ward return”) distinctly indicating the results obtained in each polling station relating to those elections:
Provided that duplicate copies of the polling-station returns gathered from every polling station within a ward for the purposes of subparagraph (i) and (ii) shall also be transmitted through the appropriate ward centre directly to the National Command Centre;
(c) after collation of the results of—
(i) presidential election at each ward centre, presidential election ward returns gathered from every ward centre within a constituency shall be transmitted to the appropriate presidential constituency centre for collation at that centre, the results of which collation shall be embodied in a return (“presidential constituency return”) distinctly indicating the results obtained in each ward within that constituency relating to that election;
(ii) National Assembly elections at each ward centre, National Assembly election ward returns gathered from every ward centre within a constituency shall be transmitted to the appropriate National Assembly constituency centre for collation at that centre, the results of which collation shall be embodied in a return (“National Assembly constituency return”) distinctly indicating the results obtained in each ward within that constituency relating to those elections;
(d) after collation of the results of the presidential election at each presidential constituency
centre, presidential constituency returns gathered from every presidential constituency centre shall be transmitted to the provincial command centre for collation at that centre, the results of which collation shall be embodied in a return (“provincial return for the presidential election”) distinctly indicating the results obtained in each constituency relating to those elections;
Provided that duplicate copies of the presidential constituency returns gathered from every presidential constituency centre shall also be transmitted directly from the provincial command centre concerned to the National Command Centre;
(e) after collation of the results of the National Assembly elections at each National Assembly constituency centre, National Assembly constituency returns gathered from every National Assembly constituency centre shall be transmitted to the provincial command centre, where—
(i) the result of the National Assembly election in the province in question will be embodied in a return (“provincial return for the National Assembly elections”) distinctly indicating the results obtained in each constituency relating to those elections; and
(ii) the results of the election for the party-list candidates for the province in question will be determined in accordance with section 45I on the basis of the provincial return for the National Assembly elections, and be embodied in return (“provincial return for elections of party-list candidates”) distinctly indicating the results obtained for the Senate, National Assembly and provincial council party-list seats;
(f) after the collation of the results of the presidential election at each provincial command centre, provincial returns for the presidential election gathered from every provincial command centre shall be transmitted to the National Command Centre, where—
(i) the provincial returns shall be collated to obtain the initial results of the presidential election; and
(ii) the final result of the presidential election shall, after reconciling the provincial returns with the polling station returns and presidential constituency returns referred to in the provisos to paragraphs (b) and (d) respectively, be reflected in a return that distinctly reflects number of votes cast for each presidential candidate at every polling station, ward centre, presidential constituency centre and provincial command centre;
(g) after the compilation of the provincial return for the National Assembly elections and the provincial return for elections of party-list candidates at each provincial command centre, the provincial returns for the National Assembly elections and elections of party-list candidates shall be gathered from every provincial command centre and transmitted to the National Command Centre.[Subsection substituted by s. 12 of Act No. 12 of 2014] [Section inserted by s. 10 of Act No. 3 of 2012] [Part VIIIA inserted by s. 28 of Act No. 17 of 2007]
THE VERIFICATION OF THE PRESIDENTIAL ELECTION
The law that governs the verification of the presidential election result is section 110, as read with sections 65(2)(b), 65A(2)(b) and 65B(2)(b) of the Electoral Act (cap. 2:13, as amended.
Section 65(2)(b) provides that:
“At the time notified in terms of subsection (1) and in the presence of such candidates, election agents and observers as are present, the ward elections officer shall verify each polling-station return (V11) by ensuring that it purports to be duly certified by the presiding officer of the polling station concerned”.
And s655A(2)(b) provides that:
“At the time notified in terms of subsection (1) and in the presence of such candidates, election agents and observers as are present, the constituency elections officer shall verify each ward return by ensuring that it purports to be duly certified by the ward elections officer concerned”.
While s65B(2)(b) provides that:
“At the time notified in terms of subsection (1) and in the presence of such candidates, election agents and observers as are present, the provincial elections officer shall verify each constituency return by ensuring that it purports to be duly certified by the constituency elections officer concerned”.
The detailed description of the of the verification and
determination of the result of election to office of President is in section 110 of the Electoral Act, which provides that:
- Where only one candidate for President is validly nominated at the close of the day on which a nomination court sits in terms of section 38(1)(a), the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) shall declare such candidate to be duly elected as President without the necessity of a poll.
- [Subsection amended by s. 39 of Act No. 6 of 2014]
(2) Where two or more candidates for President are validly nominated, a poll shall be taken in each constituency for the election of a President.
(3) Subject to this Part, Part XIII shall apply, with any changes that may be necessary, to an election to the office of President (any references to a constituency centre or a constituency elections officer being construed as references to a presidential constituency centre or a presidential constituency elections officer respectively), other than sections 66, 67 and 68, for which the following provisions are substituted—
(a) after the number of votes received by each candidate as shown in each polling-station return has been added together in terms of section 65(3)(i) and the resulting figure added to the number of postal votes and special votes received by each candidate, the constituency elections officer shall forthwith—
(i) record on the constituency return the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the results of the count for each polling station are shown on the return; and
(ii) display the completed constituency return to those present and afford each candidate or his or her election agent the opportunity to subscribe their signatures thereto; and
(iii) transmit to the Chief Elections Officer by hand through a messenger the constituency return or a copy thereof certified by the constituency elections officer to be correct;
(b) immediately after arranging for the constituency return to be transmitted in terms of paragraph (a)(iii), the constituency elections officer shall affix a copy of the constituency return on the outside the constituency centre so that it is visible to the public;
(c) immediately after receiving all the constituency returns transmitted in terms of paragraph (a)(iii), the Chief Elections Officer shall verify them, having given reasonable notice to each candidate or to his or her chief election agent of the time and place at which the returns are to be verified;
(d) at the time and place notified for the verification of the constituency returns referred to in paragraph (c) and in the presence of such candidates, their chief election agents and observers as are present, the Chief Elections Officer shall display each constituency return to those present and shall, on request, allow a candidate or chief election agent of a candidate to make notes of the contents of each constituency return;
(e) when the Chief Elections Officer has completed the verification of the constituency returns under paragraph (d) the Chief Elections Officer shall, in the presence of such persons referred to in paragraph (d) as are present, add together the number of votes received by each candidate as shown in each constituency return;
(f) subject to paragraph (h), after the number of votes received by each candidate as shown in each constituency return has been added together in terms of paragraph (e), the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) shall—
(i) where there are two candidates, forthwith declare the candidate who has received the greater number of votes to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration; or
(ii) where there are more than two candidates, forthwith declare the candidate who has received more than half the number of votes to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration; or
(iii) where there are more than two candidates, and no candidate has received more than half the number of votes, forthwith declare that a runoff presidential election shall be held on the date fixed by the President in terms of section 38(1)(a)(iii) (that is to say, a fixed date not less than twenty-eight and not more than forty-two days after the polling day or last polling day, the case may be, of the original election):
Provided that the Electoral Court, on the application of the Commission, may for good cause extend the period;
[Paragraph amended by s. 39 of Act No. 6 of 2014]
(g) subject to this section, if a runoff presidential election is required to be held—
(i) only the two candidates who received the highest and next highest numbers of valid votes cast at the previous election shall be eligible to contest the election; and
(ii) the election shall be held in accordance with this Act or, in case any situation arises that may be peculiar to such election, in the manner prescribed;
(iii) after the number of votes received by each candidate at a presidential runoff election as shown in each constituency return has been added together in terms of paragraph (e), the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) shall forthwith declare the candidate who has received the greater number of votes to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration:
Provided that if the two candidates receive an equal number of votes, Parliament shall, as soon as practicable after the declaration of the result of that election, meet as an electoral college and elect one of the two candidates as President by secret ballot and without prior debate;
[Subparagraph amended by s. 39 of Act No. 6 of 2014]
(h) a declaration by the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) under paragraph (f) or (g)(iii) shall be made not later than—
(i) five days after the polling day or last polling day, as the case may be, in the presidential election or runoff presidential election concerned; or
(ii) where a recount has been ordered in terms of section 67A, five days after the completion of the recount:
Provided that the Electoral Court may, on application by the Commission, for good cause extend the ten-day period;
[Paragraph amended by s. 39 of Act No. 6 of 2014]
(i) a declaration by the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) under paragraph (h) [shall] be final, subject to reversal on petition to the Electoral Court that such declaration be set aside or to the proceedings relating to that election being declared void;
[Paragraph amended by s. 39 of Act No. 6 of 2014]
(j) the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) shall as soon as possible after he or she has declared the result of an election to the office of President in terms of paragraph (i), publish such result by notice in the Gazette and in such other manner as he or she considers necessary to give sufficient publicity to the result, which notice shall also, in the event that the candidate in question has obtained more than half of the votes at the election, give the full name of the person duly elected as President of the Republic of Zimbabwe and the day with effect from which he or she was so elected.
[Paragraph amended by s. 39 of Act No. 6 of 2014]
(4) Subject to this Part, Parts XIV, XIVA and XV, shall apply, with any changes that may
be necessary, to an election to the office of President, any references to a constituency centre or a constituency elections officer being construed as references to a presidential constituency centre or a presidential constituency elections officer respectively.
(5) In accordance with section 94 of the Constitution, a person elected as President assumes office when he or she takes, before the Chief Justice or the next most senior judge available, the oath of President in the form set out in the Third Schedule to the Constitution.
[Subsection substituted by Part VI of Schedule to Act No. 3 of 2016]
[Section substituted by s. 29 of Act No. 3 of 2012]
Given the foregoing, it is instructive to look again at what ZEC and Chigumba said under oath in their opposing affidavit about how they handled the verification process.
At the bottom of paragraph 31 of the opposing affidavit, ZEC says the following:
“As part of the verification process, the applicant’s election agents, election agents for other presidential candidates as well as election observers had full access to the ORIGINAL V11s and V23s with respect to the presidential election from which they could make notes as they required”.
This claim is contrary to both the legal and factual position. Factually, ZEC did not have ORIGINAL V11s at the National Command but only had copies. Legally, the verification process does not involve inspecting V11s but 210 V23A forms from the 210 constituency centres and 10 V23C forms from 10 provincial command centres. In other words, the Electoral Act provides that the verification process be done using 220 V23 forms and not on V11s. The whole hullabaloo that ZEC and Chief Justice Malaba created around V11s was an unlawful diversionary tactic to justify Excelgate.
Under paragraph 32.2 of their opposing affidavit say:
“His (Chamisa’s) suggestion is also curious as it comes immediately after he avers that for close to two days the Electoral Commission’s staff were busy manually entering data from original V11 forms onto an excel spreadsheet”.
This is significant for two reasons. Frist, ZEC and Chigumba again refer to ORIGINAL V11 forms, which in fact ZEC did not have and which at law it could not access without a court order. Second, ZEC and Chigumba, confirm on this paragraph, by approvingly quoting Chamisa, that the alleged ORIGINAL V11s, which it could not have, were used to extract data which was manually entered onto an excel spreadsheet. In terms of the law, the only data that ZEC could have extracted to input onto the excel spreadsheet for purposes of determining the presidential election result was from V23 forms.
Any doubt about what ZEC was up to with V11s at the
National Command Centre is removed by paragraph 34.2 of ZEC’s and Chigumba’s opposing affidavit where they make this startling admission:
“The verification process itself consisted of election agents verifying the V11s and V23s that the Electoral Commission had and was using to compile the full result of the presidential election”.
There are two things that standout from ZEC’s and Chigumba’s paragraph 34.2.
First, ZEC and Chigumba say that election agents at the National Command Centre were “verifying V11s and V23s”. Which election agents were verifying V11s at the National Command Centre and in terms of what law? There 10,985 polling stations that produced V11s, did all these come to the National Command Centre to verify their V11s? And were these 10,985 V11s manually processed over two days to enter their data onto an excel spreadsheet?
Second, ZEC and Chigumba say under oath they used the V11s, along with V23s, “TO COMPILE” the full result of the presidential election. What is “to compile the full result of the presidential election”? The law does not, anywhere in the Electoral Act (Cap. 2:13, as amended, refer to “compilation” of the “full result of the presidential election”. Nowhere. The law speaks of the collation of the election result which is done at polling station centre, ward centre, constituency centre and provincial command centre and VERIFIED, not compiled, but VERFIED at the National Command Centre using presidential constituency returns, known as V23B forms.
Yet ZEC and Chigumba are correct that they, with the 20 or so officers who included military officers, did indeed manually COMPILE their own result using an excel spreadsheet over a period of two days. This result compiled by ZEC was based on unverifiable and untraceable data. It was, as it still is, with no factual basis and UNLAWFUL. It is Excelgate.
Under paragraph 34.3 of the opposing affidavit, ZEC and
Chigumba make this startling submission”
“I have already averred, over the two day period, the applicant’s election agents had unlimited access to all the original V11 and V23 forms relating to the presidential election and had the opportunity, at their discretion, to make notes from those V11 and V23 forms or to raise any queries with the Electoral Commission officials where they had problems with the information that was on the V11s and V23s being used by the Electoral Commission versus what they had through their own election agents from various polling stations”.
The submission by Chigumba and ZEC that Chamisa’s election agents had ‘UNLIMITED ACCESS” “to all the ORIGINAL V11 forms” that ZEC used at the National Command Centre over a preposterous. It is telling that ZEC and Chigumba refer to V11s “FROM VARIOUS POLLING STATIONS”. What does “various” mean? What number of polling stations is equal to “various polling stations”? Is it all or some polling stations? As pointed out, ZEC did not and could have the original 10,985 V11s without a court order. Besides, the legal process of verifying the presidential election uses presidential constituency returns, V23 forms, and polling station returns, V11s.
Under paragraph 34.6 of their opposing affidavit, Chigumba and ZEC make a factually and legally misleading averment regarding the presence of V11s during the verification of the result of the presidential election at the National Command Centre. They say:
“In terms of s110(3)(d) of the Electoral Act, the subject of a verification process are the actual returns from the various constituencies across the country. These returns consist of the V11 and V23 forms. The addition of the figures specified on the V11 and V23 forms on an excel spreadsheet is not the verification described in s110(3)(d)”.
While it is true that s110(3)(d) provide for the verification of the result of the presidential election, it is not true that V11s, polling station returns, are included under s110(3)(d). Section 110(3)(d) of the Electoral Act provides as follows:
“At the time and place notified for the verification of the constituency returns referred to in paragraph (c) and in the presence of such candidates, their chief election agents and observers as are present, the Chief Elections Officer shall display each constituency return to those present and shall, on request, allow a candidate or chief election agent of a candidate to make notes of the contents of each constituency return”.
As already established, there are four returns that are used at various centres in the collation and recording of the result of the presidential election and these are:
- Polling Station Return, the V11.
- Ward Return, V23A
- Constituency Return, V23B
- Provincial Return, V23C
Section 110(3)(d) only mentions the Constituency Return, which is the V23B form, and no other return. The construction of this statute is unambiguous. Consequently, its interpretation should also be unambiguous. It is an established presumption of statutory interpretation that expression unius est exclusio alterius: the explicit mention of one thing (constituency returns or V23s) is the exclusion of another thing (polling station returns or V11s).
Section 65A(3)(b) provides that the constituency election officer should:
“Ensure that a copy of the constituency return is displayed prominently outside the constituency centre so that all members of the public who wish to do so may inspect it and record its contents”.
This provision cannot possibly mean that the V11s are also displayed outside the constituency centre. V11s are only displayed outside polling stations and nowhere else.
Given the process outlined above, the question must be
asked again: what was ZEC doing with ORIGINAL V11s at the National Command Centre? V11s are only handled at polling station and ward collation centres, after which they are sealed in ballot boxes with election residue and can only be unsealed with a court order. It is also clear from the legal process that only duplicate V11s, namely copies of V11s, and not ORIGINAL V11s, are sent by the ward elections officer directly to the National Command Centre.
Therefore, it is patently preposterous, in fact corrupt and
criminal, that by its own admission ZEC had 20 or so officers, who included military officers, manually inputting data from V11s at the National Command Centre onto an excel spreadsheet over a period of two days after which ZEC DECLARED Emmerson Mnangagwa as the winner of the presidential election.
No wonder the EU Observer Mission highlighted this
problem: Presidential results announced by ZEC were based on figures from the provincial level. ZEC also provided a CD-ROM with polling station figures set out in excel format. As this was not a presentation of the actual V11 forms from each polling station, the CD-ROM did not provide the level of transparency, traceability and verifiability which was hoped for and which could have been achieved. Further, the figures presented by ZEC in the CD-ROM contained many errors and inaccuracies.
Besides the question of what business ZEC had, handling
V11s at the National Command Centre, picking and choosing V11s, and having 20 or so officers inputting the selected V11s onto an excel spreadsheet, there are other troubling questions whose inescapable answers point to Excelgate.
Why did ZEC have two different results for Mnangagwa: one
announced on 3 August 2018 and another published on its Website, a few days later? There are two inescapable explanations.
First is that ZEC used an excel spreadsheet onto which it
inputted selected V11s, and even V23A forms, both which were supposed to be in sealed ballot boxes with election residue. The sealed boxes with original V11s and B23A forms could only be available through a court order. Therefore, ZEC cannot credibly claim to have relied on original V11s or original B23A forms to extract the data which its and Army officers used to input onto an excel spreadsheet. In other words, ZEC could not have used the 10,985 V11s or the 1,985 B23A forms to extract results for the presidential election and manually input them onto an excel spreadsheet over two days, using 20 or so officers. What this means is that ZEC conjured up a result by play fast and loose with numbers.
The indisputable fact that ZEC officials were able to fill up
V11s forms two days after the election, and when they were all by themselves, means that the source of the V11s that became available at the National Command Centre was not any polling station. This may also explain why there were strange V11s at the National Command Centre, including one that improbably had zero votes for Nelson Chamisa. The foregoing explains why ZEC ended up with the first unreliable result it declared on 3 August 2018 based on an excel spreadsheet. EU Observers caught two ZEC officials completing V11 forms on their own:
“The EU EOM observed ZEC officers in Makoni North completing V11 forms two days after Election Day, even though polling staff and party agents were not present. They claimed this was due to the earlier lack of V11 forms”.
There’s no telling how many V11 forms these two officers who were in ZEC regalia, but who may very well have been Army officers.
The second explanation why ZEC had two conflicting results, with neither being reliable, has to do with how the ZEC results from the excel spreadsheet included counting invalid votes cast. The EU Observer Mission Report captured this aptly:
“Intriguingly, the figure of 50.8% of votes initially announced for the winning candidate, which is the most widely-reported, appears not to have been a percentage of the total number of valid votes cast (if it is so, it should be 51.5%), but it is the respective percentage of the total number of votes cast (including invalid votes). All-in-all the CD-ROM provided by ZEC attests to a lack of quality control in its work and such errors and lack of transparent opened the process to legal jeopardy”.
Invalid votes were counted and inputted onto the excel
spreadsheet once Excelgate was in full swing in the hands of dark forces beyond ZEC.
In the final analysis, the ZEC figures, which Chief Justice Malaba ran away from claiming to prefer facts over numbers, were a festival of inaccuracies about which the EU Observer Mission had this to say:
“The figures presented by ZEC contain many anomalies and inaccuracies…Examples of inaccuracies include inaccurate totals for constituencies and/or provinces, inaccurate sums for the two main candidates in two provincial level cases, double entry of some polling stations, and, in some cases, more voters apparently having voted than are on the voter roll. ZEC later corrected some errors and amended the election result, meaning that ED Mnangagwa was attributed with 50.67% rather than 50.8%. These errors were highlighted in the court case brought by Chamisa…”.
The use of excel in this manner took the process away from
ZEC. Commissioners who spoke to the team for this research revealed in confidence that three ZEC Commissioners threatened to resign, as they waited for the results of Mashonaland Central and Mashonaland West provinces. The waiting was too long, and ZEC Commissioners did not know what the results were because they were being calculated outside and beyond ZEC by an Army technical which ZEC did not supervise or control. The EU Observer Mission made this telling observation about the confusion that enveloped the results from the provinces of Mashonaland Central and Mashonaland West, as well as Harare and Zaka West constituency in Masvingo:
“The Provinces of Mashonaland Central and West show major discrepancies in vote totals for candidates in comparison with the ZEC summation (Mnangagwa received more than 6,000 extra votes and Chamisa received over 1,000 votes too few). In four polling stations in Zaka West Constituency, wards 22 and 23 have the same result, which is close to impossible to achieve under normal circumstances. A polling station in Harare was entered twice with complete information. And, seven polling stations recorded a turnout above 100%, and many polling stations close to 100% “.
The last question has to do with whether the ZEC Server existed or not. Mnangagwa’s response to this question under paragraph 118 of his opposing affidavit is unambiguous in the affirmative. A more telling confirmation of the existence of the ZEC Server is found in the position taken by Chief Justice Malaba on Nelson Chamisa’s subpoena for the Server. Chief Justice Malaba literally used subterfuge to block the subpoena.
In the first place, Chief Justice Malaba invoked an
unconvincing, and in fact a disingenuous administrative excuse, to block the subpoena by holding that the matter been included in his Order after the Pre-Trial Conference of the 16 August 2018. But there was no Pre-Trial Conference. Instead there was a Case Management Meeting which dealt with process issues, especially timelines for service of court process. Nothing was said nor could be said about legal issues or even matters of fact that the parties would raise within the agreed timelines for service of court process within the established rules of the Court.
At the last minute, on 21 August 2018, Chamisa’s lawyers
indicated that they disagreed with Chief Justice’s Malaba’s view that the subpoena had fallen away because he did not include it on his Pre-Trial Conference Order, on 16 August 2018; and requested for an audience with Chief Justice Malaba over the subpoena. Realizing that the subpoena issue was escalating, Chief Justice Malaba sprang an untested legal reason for excluding the subpoena. He directed through the Registrar of the Constitutional Court that he did not see the RELEVANCE of the ZEC Server in Chamisa’s Constitutional Court challenge to ZEC’s declaration of Emmerson Mnangagwa as the winner of the 2018 presidential election.
Chief Justice Malaba was now raising a ruling about the
ADMISSABIITY of the ZEC Sever. He was making this ruling, while seeming to suggest that the matter could be decided by the full bench, at the 11th hour yet he was fully aware that it would have been futile to take the matter to a full bench, given the constitutional timelines for determining the case.
It is trite to mention that all relevant evidence in a case is
admissible. It’s only irrelevant evidence that is inadmissible.
Was the ZEC Sever irrelevant evidence in Nelson
Chamisa’s Constitutional Court challenge to ZEC’s declaration of Emmerson Mnangagwa’s as the winner of the 2018 presidential election? There’s no need for a lawyer to answer this question. The ZEC Server was at the core of the constitutional court challenge.
It was the most relevant and best evidence in the case.Why then did Chief Justice Malaba question the relevance of the ZEC Server as evidence? It is because he was determined to block the subpoena and ipso facto block the production of the ZEC Server in Court. Chief Justice Malaba had read Mnangagwa’s opposing affidavit which confirmed the existence of the ZEC Server, and he was clear that its production in court would be like a nuclear bomb on ZEC and its excel spreadsheet presidential result.
Chief Justice Malaba’s question was not whether the ZEC
Sever existed or not but whether the server was RELEVANT evidence that was admissible or not.
This means even Chief Justice Malaba was clear that the
ZEC Server existed. The existence of the server confirms Excelgate. While the confirmation raises fundamental criminal questions about the scandal, one unavoidable conclusion is that the 2018 presidential election was stolen when ZEC was forced to abandon its server. This resulted in ZEC using an insecure and unreliable excel spreadsheet onto which falsified data, based on fake V11s and B23 forms, were manually inputted over two days by 20 or so ZEC officers, who included Army personnel. This electoral theft led to ZEC’s declaration of Emmerson Mnangagwa as the President of Zimbabwe. In effect, this was a coup against the sovereignty of the people.SEND US FEEDBACK: email@example.com OR, better still, CLICK HERE TO JOIN ONE OF OUR WHATSAPP GROUPS for the latest news!