The European Union Election Observer Mission (EU EOM) in its final report on the July 30 harmonised elections said that the Constitutional Court disregarded the evidence which was placed before it by the applicant in the presidential petition. The EU noted that the court insisted on the “best evidence rule” yet in the past it had not granted any applications where the applicant wanted to access the evidence. In its report, the EU says
While the Court made extensive reference to the “best evidence rule” and repeated the need for the applicant to have produced “primary source evidence”, either from a recount or through an analysis of the content of the unsealed ballot boxes through an application to the Electoral Court, and stressed that the applicant chose not to exercise his right to obtain the necessary evidence, it completely disregarded the value of the evidence placed before it. Yet, the evidence which the Court mentioned as the acceptable evidence would still not have been made easily available, as it had to be applied for – it is notable that when recourse has been made to that in the past, no application had succeeded.
The report was also critical of the fact that the court did not address why the Sheriff had refused to serve Chamisa’s court papers on other respondents on time. Says the EU EOM
…it (The Constitutional Court) avoided addressing the role of the Court’s sheriff who failed to serve the application on time although the sheriff had been, as supported by evidence, duly instructed by the applicant.
The EU also noted its concern that the Constitutional Court did not refer to judgements which had been passed by the High Court despite the fact that the court acknowledged the cases. An excerpt from the report reads,
…In regards to the pre-election violations alleged, of concern is the fact that although the Court acknowledged the existence of some pre-election High Court judgments pertaining to the conduct of postal voting, the design of the ballot paper, the release of the voter roll with photos and the voting of civil servants, it did not refer to other judgments, such as the one of the Electoral Court related to the distribution of agricultural seed under the guise of it being the presidential inputs scheme, 101 or the one of the High Court banning the President of the National Council of Chiefs from making political statements supporting ZANU PF and declaring unconstitutional the conduct of campaigns by traditional leaders.
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