Litigating a Presidential Election in Southern Africa in the Absence of a Regional Court in SADC: The Case of Zimbabwe

Abstract

When election manipulation is alleged, the solution is to approach a competent national court to seek a remedy in line with the domestic legal framework. However, in a country where the independence and credibility of the national electoral body are at issue, there is no guarantee that the judiciary that should resolve electoral manipulation claims is itself immune to manipulation and thus, independent. What if the national court is also equally manipulated? The case of Chamisa v Mnangagwa (CCZ 42/18) 2018 ZWCC 42 brings to the fore the critical flaws in the Zimbabwean Constitutional Court’s approach when adjudicating an electoral petition and genuine concerns of lack of judicial independence in the national context where disputes should be resolved. This paper argues that the Court’s approach to the material evidence required of the Applicant imposed an unduly onerous standard of proof. This standard disregarded the specific circumstances of the case and burdened the Applicant with unreasonable and insurmountable requirements inappropriate for the relief sought. Thus, by critically analysing this case, as an example of electoral litigation in Southern Africa, the paper concludes that the SADC requirement that presidential electoral disputes must be resolved by national courts assumes that these courts are immune to the manipulation faced by independent electoral bodies. Furthermore, the paper explains how the ongoing paralysis of the SADC Tribunal undermines the rule of law where national systems fail and therefore calls for its urgent revival as a supranational court to deal with electoral petitions.