At the heart of this electoral case lies deep questions about what it means exactly to ‘know’ something and about a few steps that judges should avoid when reasoning from unknowns. In short, the court refused to cancel a presidential election because those who challenged that election in court failed to prove that the absence of verifiable paper trail changed the outcome of the election. If a judge lacks evidence of any claim put forth by the parties, they cannot lean on the absence of evidence to arrive at any conclusion, except to conclude that they do not know whether the claim conveys the truth. Likewise, if an election body cannot verify the votes, a judge cannot maintain that people should trust that election or those votes. Another way of saying that absence of evidence is not evidence of absence.
So how should the Supreme Court have handled the absence of paper trail in the Itula case? The court rejected the applicants’ request that the court invalidate the election, but jurists will discover that this rejection defies logic and science itself. And this commentary shows how.
Zongwe, Dunia P.
"Itula and Others v Minister of Urban and Rural Development and Others 2020 (1) NR 86 (SC),"
SAIPAR Case Review: Vol. 3
, Article 12.
Available at: https://scholarship.law.cornell.edu/scr/vol3/iss2/12