HARARE – The Constitutional Court on Wednesday begins hearing a Presidential Election petition in which MDC Alliance leader Nelson Chamisa wants President Emmerson Mnangagwa’s election win nullified.

The nine judges, including the Chief Justice, can call the election for either candidate, or nullify the result of the July 30 election and order a re-run.

Whatever the outcome, one organisation will emerge heavily bruised: the Zimbabwe Electoral Commission, which has already admitted it made “clerical errors” which boosted Mnangagwa’s numbers to 50.8 percent of the vote, when according to ZEC, this should have been 50.6 percent.

ZEC has also been backpedaling furiously elsewhere, and will concede that it announced inaccurate results in the Parliamentary count in Mutare North constituency where results were undercounted by almost 20,000 votes.

Zimbabweans have been wondering, what if a re-run is ordered? How can we trust ZEC after everything that has happened?

Constitutional lawyer Professor Welshman Ncube, who is also the spokesman for the MDC Alliance, says there is no easy way to be rid of ZEC before a re-run – unless its officials voluntarily quit.

ZEC, according to Ncube, made a litany of mistakes, which always favoured one of the 23 candidates: Mnangagwa.

“This means ZEC did no mistakes but deliberate, calculated and engineered acts, in other words that is fraud. In fact, prior to the proclamation of the election itself, we as MDC alliance always made demands for electoral reforms, also made demands for a compliance with the law by ZEC, we indeed made demands for the reconstitution of ZEC in terms of the law,” Prof Ncube told ZimLive.com on Tuesday.

“Those remain areas that are of concern to us, both in the short term and long term. It is pretty clear it is unlikely that the current constituted ZEC will ever hold a credible election given the litany and plethora of breaches of the law done, not by mistake but deliberately, over a long period of time.”

Prof Ncube said an obvious breach was the ballot paper that ZEC designed for the presidential election, which was designed in such a way Mnangagwa was placed top.

“If ever any evidence was required of the fact the ZEC is captured, is totally impartial, it is that ballot paper. No-one who has a modicum of self-respect or integrity could have designed such, it shows that the ballot could only been designed by Zanu PF political commissar,” he said.

ZEC’s credibility may be hopelessly beyond salvation, Prof Ncube said, but its reconstitution before a re-run which would be due in 60 days is nearly impossible.

“If you then wear legal glasses, it is impossible now to reconstitute ZEC because for you to legally reconstitute ZEC you need parliament, a standing committee in parliament that will do all the work. At the moment, there is no parliament and there can be no parliament until elections are over and until the president is sworn in,” he said.

“Until elections somehow come to an end – then reconstituting ZEC can happen, but for now we are stuck with ZEC because it’s legally impossible to opt out of this.”

To safeguard the electoral process, Prof Ncube said the opposition had to physically keep vigil through every process to make sure ZEC does not cheat.

As for possible outcomes after the court hearing, the constitutional expert said the court has wide ranging powers to choose any one of four possible outcomes.

He explained: “The court can set aside completely and state that elections were not conducted by law. If it completely sets aside, it means we are not having a re-run but a fresh presidential election. The fresh presidential election must be done in accordance with the provisions provided in the law.

“The court also has power to say that from the irregularities that are there, Mnangagwa did not reach the 50 percent plus one vote threshold, therefore there should be a runoff between the two highest polling candidates.

“The court can also say from the arithmetic evidence, the tabulation is wrong – as pleaded by Chamisa – and Chamisa won the election, in which case he would be declared winner.

“Finally the court can reach a conclusion that Emmerson Mnangagwa won fairly and all irregularities taken together had no bearing on the final outcome, in which case Chamisa’s petition is dismissed and Mnangagwa confirmed the winner.”

Chamisa sought only two orders in the petition: to be declared duly elected or have a re-run, which means the Constitutional Court is confined to these remedies which the applicant prefers.