Plot to ruin Mnangagwa's inauguration

When ZEC declared Emmerson Mnangagwa as the winner of the 2023 harmonised general election on 26 August 2023, the constitutional clock started ticking in respect of at least two constitutional timelines, one of which might be manipulated by Chamisa to creare a contrived constitutional crisis aimed at wrecking tomorrow's inauguration:

1. Firstly, there's the seven-day period after the declaration by which a Constitutional Court application to challenge the validity of the declared result must be lodged, which ends on 4 September 2023. The seven-day period should have ended at 4:00 pm yesterday on 2 September but the fact that, as confirmed by Chief Justice Malaba in his judgment in the 2018 case of Chamisa v Mnangagwa and 24 Ors, section 336(2) of the Constitution of Zimbabwe provides that whenever the time for doing anything in terms of the Constitution ends or falls on a Saturday, Sunday or a public holiday then that thing may be done on the next day which is not a Saturday, Sunday or a public holiday; which in this case is 4 September 2023.

2. Secondly, there's the ninth day after the declaration of the result for the presidential election on which the President-elect must, not may but must, take oath office and be sworn in, which is 4 September 2023. It is absolutely necessary that the President-Elect takes the oath of office on this day, failure of which the election would be invalid, thereby necessitating a fresh election. In terms of section 94(1) of the Constitution, and unless there's a challenge to the validity of the election, Mnangagwa must be sworn-in without fail tomorrow, on 4 September 2023, the ninth day after the declaration of the result for the presidential election which was done on 26 August; as per section 9(1) of the Constitution.

After showing beyond reasonable doubt that he does not have the V11s he said he had, and was going to avail to the general public, election observers and diplomats to prove his claim that he won the presidential election, it is has since become all too clear to all and sundry that Chamisa has no evidence, none whatsoever, to present to the Constitutional Court to prosecute a challenge to the result that was declared by ZEC on 26 August 2023.

Did you tell the CJ about this inauguration?

Did he agree that it could be planned within 7 days of the declaration of results?

Did he say he would attend and officiate?

If a petition is brought, will he sit to deal with it and thereafter officiate at the inauguration? pic.twitter.com/L2NADqeUpL

— Thabani Mpofu (@adv_fulcrum) September 2, 2023

To keep the fiction that he has the V11s, early last week, Chamisa used media outlets that are friendly to him to peddle the propaganda that he would lodge his Constitutional Court application on Saturday 2 September.

But a day before 2 September 2023, the day on which Chamisa had said he would lodge his application, the same media outlets that had spent the better part of the week claiming that Chamisa would file his papers suddenly reported that there had been a change of heart as Chamisa changed his mind and decided against approaching the Constitutional Court to challenge the declared result.

Innuendos were thrown around like confetti, replete with suggestions that Chamisa had decided not to challenge the result for the presidential election because of bald allegations that the judiciary is not independent.

But the writing on the wall, which everyone can read is that Chamisa decided against approaching the Constitutional Court, only because he does not have any evidence to support his claims. He has no V11s, which he knows he needs, and which he should have gotten from his polling agents, had he deployed them in sufficient numbers at the 12, 374 polling stations across the country.

Soon after Chamisa indicated through reports from media outlets aligned to his politics that he was no longer lodging a Constitutional Court application to challenge the validity of the declared presidential election result, government sources aware of the requirements of Section 94(1) that the President-elect must take his oath of office on the ninth day, after the declaration of the result for the presidential election started circulating an official memo that the inauguration of the President-elect would be on 4 September, tomorrow.

This prompted one of Chamisa's leading lawyers wo leads CCC;s legal efforts, Thabani Mpofu, to query the government memo in ways that raised eyebrows. Mpofu's message, querying the government memo, is attached herewith.

In any event, the technical coincidence between the fact that the seven-day period for lodging an application to challenge the result for the presidential election declared on 26 August 2023 ends on 4 September 2023, and the fact that the ninth day by which the President-elect is also on 4 September 2023 has created nefarious opportunities for Chamisa and his lot to make mischief by threatening to use the technical coincidence to subvert the inauguration.

These two scenarios that have triggered the technical coincidence are governed and anticipated in sections 93 and 94 of the Constitution.

Section 93 provides for any party, in this case Chamisa, to petition the Constitutional Court within seven days from the declaration of the results by ZEC. Because these are dates which refer to potential litigation, they are counted by excluding the first day and including the last day.

As such, under section 336(2) of the Constitution, the counting for the seven-day period started on 27 August 2023 and ended on Saturday 2 September 2023.

This is the reckoning of time which was affirmed by Chief Justice Malaba in Chamisa v Mnangagwa and 24 Ors when he held that section 336(2) of the Constitution is applicable.  In Chief Justice Malaba's words:

"The notices of opposition would have been due within three days from that date, being 14 August 2018. In terms of s 336(2) of the Constitution:
Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public holiday.

The dies induciae having expired on 14 August 2018, which was a public holiday in Zimbabwe, the notices of opposition had to be filed on the next business day, being 15 August 2018. They were duly and properly filed with the Registrar on that date."

In the present Chamisa case, using the above quoted reasoning applied by Chief Justice Malaba in 2018, it means because the 7th day fell on a Saturday, the last day becomes Monday 4 September 2023.

Monday being a Court day, ends at 1600hrs Monday 4 September 2023. Theoretically, Chamisa can therefore have his application to the Constitutional Court issued AND served on ALL Respondents between 0800hrs and 1600hrs on Monday 4 September 2023

On the other hand, section 94 of the Constitution provides that the President-elect MUST be sworn in on the 9th day, which is 4 September 2023.

Because these days are not about litigation, they are counted as ordinary calendar days. The 9th day happens to coincidentally fall on the same day with the deadline day for Chamisa to lodge his application to the Constitutional Court if he should so decide, being Monday 4 September 2023.  And this day being an ordinary day, ends at 23:59hrs Monday 4 September 2023.

Technically, this means President elect Mnangagwa MUST be sworn in any time between 16:01hrs and 23:59hrs on Monday 4 September 2023. President elect Mnangagwa cannot be sworn in on any other time and date. If he is not sworn in on Monday 4 September 20:23 between 16:01hrs and 23:59hrs, that would create a constitutional crisis, which could invalidate the election; something that Chamisa has been dreaming about and praying for; even when he knows that his dream is a nightmare.

On this issue, a historic perspective and context of how Chamisa has used subterfuge to create trouble in the courts is both instructive and important.

It will be remembered that, in 2018, Chamisa filed his application to challenge the results of the of the 2018 Presidential election on the very last day. The Constitutional Court even opined that it was clear that Chamisa was aware of the computation of the days.

The lodging of an application with the Constitutional Court is a process through which the applicant, in this case Chamisa, brings a full set of his application to the Registrar of the Constitutional Court. The Registrar then allocates a case number to the application. In all future correspondence, exchange of pleadings or Court process in respect of the same application, all parties refer to the Registrar's allocated case number.

It should now be obvious that this process is unavoidable and mandatory for both Chamisa and the Registrar of the Constitutional Court. This is only but the beginning of the triggering of the Constitutional Court challenge.

The second part of this process, also mandatory and unavoidable, is for the applicant to take the same papers, now with the stamp of the Registrar of the Constitutional Court and a case number to the Sheriff of Court.

It is ONLY the Sheriff of Court who can serve the Court application on ALL the named Respondents. Service of the application means giving ALL the Respondents a true copy of the original Court application.

In fact, when serving the Constitutional Court application, the Sheriff must not only be in possession of the ORIGINAL Court application, he MUST also show the original Court application copy to the person on whom he is serving, that is, the Respondent, who must confirm that the copy of the application he is being served, is a true and exact copy of the original application in the possession of the Sheriff of the Court at the point and time of being served. The Sheriff of the Court must repeat this process with each and every one of the Respondents, however many they are.

The process of challenging the result of the Presidential election is completed ONLY by the service of the application on ALL the Respondents. This has to be done, ONLY by the Sheriff. This position was confirmed in the 2018 decision of the Constitutional Court in Chamisa v Mnangagwa and 24Ors.

In 2018, precisely because of the cumbersome requirements of serving the application as outlined above, the Sheriff of Court having received the application on the last day, was not able to serve all the many Respondents on that very day. The other papers were served on the day following day. On this, the Constitutional Court held that Chamisa was out of time.

Although Chamisa was out of time, the Constitutional Court, effectively, condoned his non-compliance with the rules and heard his application on the merits. Given the mischief that Chamisa is once again brewing up, it is important to emphasise that in 2018 the Constitutional Court, held that he was late with his petition. It would be foolhardy for him to repeat his delinquency, as h appears headed that way.

Fast forward to 2023, the nomination process for candidates in the 2023 harmonised general election was opened by ZEC from 10 June 2023 to 21 June 2023.

Chamisa's CCC parliamentary candidates waited for the last day on 21 June to file their nomination papers, and they were alleged to all have filed well after the Nomination Court had closed at 4 pm. The Bulawayo High Court held that they were out of time. This decision was overturned by the Supreme Court on appeal. The candidates contested in the harmonised general election. They won, and are now awaiting to be sworn in as Members of Parliament.

It's déjà vu, with the same scenario now playing itself out, again, in his on and off challenge to the validity of the result of the Presidential election declared by ZEC on 26 August 2023.

Just like in 2018, Chamisa knew that he had or has seven days after 26 August 2023 to lodge his application with the Constitutional Court challenging the validity of the presidential election result as declared by ZEC on 26 August 2023.

He, as in 2018, in the event that he decides to approach the Constitutional Court to challenge the Presidential result, wants to deliberately and mischievously approach the Registrar of the Constitutional Court AND the Sheriff of the Court on the LAST day.

Even worse, because the last day for petitioning the Constitutional Court fell on a Saturday, Chamisa in fact had two extra days, Saturday and Sunday to mount his Constitutional Court application.

It must be made clear to Chamisa that, tomorrow, when the Registrar of the Constitutional Court and the Sheriff of Court open their doors for work, they are not opening their doors for him and him alone.

Tomorrow is just another ordinary day at work. It is just another day in which they must serve the people of Zimbabwe who might need one form of assistance or another. Important as his case may be to him, so will the cases of any other person who will go to the Sheriff of Court or the Registrar of the Constitutional Court. When he gets there, if he does for purposes of playing technical games aimed at ruining the inauguration, he must join the queue like every other person.

In the 2018 application, which he filed on the last day, Chamisa blamed the Sheriff for the late service of the application on the other Respondents. It's important to remember there were 25 Respondents in that case. In other words, Chamisa expected the Sheriff to run all over the place and complete the process in time.  He did not, at all or at any point, assume any responsibility, even partial responsibility, for why the Registrar would not have been, practically, able to serve all the Respondents on time. Serving on time means before 16:00hrs.

In 2023, Advocate Chamisa's CCC again, blamed ZanuPF supporters who challenged his 12 parliamentary candidates in Bulawayo for why they were not able to file their nomination papers on time. Yet again, as it has become his political culture, he did not assume any responsibility for the lateness.

If tomorrow Chamisa - should he be delinquent to lodge an application as away of throwing spanners in the works to wreck the inauguration - has the application issued by the Registrar of the Constitutional Court, at any time in the ordinary course of the duties of the Registrar of the Constitutional Court, and then if he should take the application to the Sheriff of the Court, also in the ordinary course of his duties as the Sheriff of the Court, he must accept the real high risk and possibility which comes with doing things at the last minute, and for mischievous reasons.

For once, Chamisa must accept, at least partially, the blame and the consequences of his own decisions and actions.

Chamisa seems to think that the Constitution and the law, the Registrar, ZEC and the Sheriff of Court - and literally everyone else - are his personal and private secretaries which ought to jump, wait in anticipation of his coming and drop everything for him and do as he pleases, while ruining everything else in the hope that he can cause a constitutional crisis in the presence of foreign and local dignitaries who will be in Harare for the inauguration tomorrow, 4 September 2023.

 All told, Chamisa must be reminded that he is an ordinary citizen like any other Zimbabwean. All Zimbabweans require the equal protection and benefit of the law.

So, tomorrow 4 September 2023 is an ordinary day at work for the Registrar of the Constitutional Court and the Sheriff of Court; and, yes, it's inauguration day!