ELECTORAL JUSTICE IN ZAMBIA - Resolving Disputes from the 2016 Elections and Emerging Jurisprudence - Electoral Institute for ...
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ELECTORAL JUSTICE IN ZAMBIA
Resolving Disputes from the 2016
Elections and Emerging Jurisprudence
ISBN 978-1-920446-66-6
9 781920 446666
Electoral Justice in Zambia
Resolving Disputes from the 2016
Elections and Emerging Jurisprudence
iPublished by EISA
14 Park Rd, Richmond
Johannesburg
South Africa
P O Box 740
Auckland Park
2006
South Africa
Tel: 27 11 381 6000
Fax: 27 11 482 6163
Email: eisa@eisa.org.za
www.eisa.org.za
978-1-920446-66-6
© EISA 2017
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted in any form or by any means,
electronic, mechanical, photocopying, recording or otherwise,
without the prior permission of EISA.
First published 2017
Printed by Corpnet, Johannesburg
iiAcknowledgements
EISA is indebted to the lead consultants, Francis Kondwelani Mwale and Isaac Mwanza,
as well as their research and editorial team made up of Melba Diana Lutangu, Peter
Mpande and Jeremiah Phiri, for undertaking the research.
EISA is also grateful to Denis Kadima, EISA Executive Director, Catherine Musuva,
EISA Zambia Country Director, and Abdon Yezi, Senior Programme Manager, Zambia
Accountability Programme (ZAP), for providing technical support.
We also extend our heartfelt gratitude to the Chief Justice of the Republic of Zambia,
Judges of the High Court of Zambia and the Office of the Chief Registrar of the High
Court of Zambia for their valuable contribution.
EISA deeply appreciates the grant from ZAP – funded by UK Aid and managed by
the British Council – which made this research possible.
iiiContents Acknowledgements iii Abbreviations vi Executive Summary vii Chapter 1: Introduction and History of Election Petitions in Zambia 1 1.1. Introduction 1 1.2. Objectives of the Study 2 1.3. Basis of Election Petitions 2 1.4. History of Presidential Election Petitions 3 1.5. History of Parliamentary Election Petitions 5 1.6. Conclusion 6 Chapter 2: Laws Pertaining to Election Petitions and Other Electoral Dispute Mechanisms 7 2.1. Introduction 7 2.2. The Constitution of Zambia 8 2.3. The Electoral Process Act No. 35 of 2016 10 2.4. Administrative and Judicial Electoral Dispute Resolution Mechanisms 11 2.5. Conclusion 14 Chapter 3: An Analysis of the 2016 Presidential Election Petition 15 3.1. Introduction 15 3.2. The Happenings after Filing of the Petition 17 3.3. The Final Verdict 19 3.4. Analysis of Some Issues Arising from the Petition 21 3.5. Conclusion 28 CHAPTER 4: An Analysis of the 2016 Parliamentary Election Petitions 29 4.1. Introduction 29 4.2. Parliamentary Election Petitions Nullified after Trial 29 4.3. Parliamentary Elections Petitions that were Dismissed after Trial 30 4.4. Appeals in the Constitutional Court 32 4.5. Reasons for the Election Petitions and Reliefs Sought 35 4.6. Processes before Courts Arrive at Decisions 35 4.7. Electoral Act of 2006 (Repealed) v. EPA of 2016 on Rendering Elections Void 37 4.8. Synopsis of the Decisions of the High Court 41 4.9. Conclusion 46 iv
CHAPTER 5: An Analysis of the 2016 Local Government Election
Petitions 47
5.1. Introduction 47
5.2. Filing, Service and Response to Petitions 48
5.3. Allegations 49
5.4. Remedies 50
5.5. Local Government Election Petition Statistics 50
5.6. Conduct and Outcome of LGE Petitions 51
5.7. Analysis of Tribunal Judgments 59
5.7.1. On the Burden of Proof and Observations 59
5.7.2. On Evidence 60
5.7.3. On Witness Testimonies without Supporting Evidence 61
5.7.4. On Rules of Procedure 62
5.7.5. On Illegality and Fraud 63
5.8. Conclusion 64
CHAPTER 6: Conclusion and Recommendations 66
6.1. Introduction 66
6.2. Recommendations 68
6.2.1. The Legal Framework (Chapter 2) 68
6.2.2. Presidential Election Petitions (Chapter 3) 68
6.2.3. Parliamentary Election Petitions (Chapter 4) 69
6.2.4. Local Government Elections Petitions (Chapter 5) 69
6.2.5. ECZ 70
Annexes on Local Government Petitions 71
Annex 1: Elections Upheld and Petitions Dismissed 71
Annex 2: Elections Nullified and Claim Upheld 73
Annex 3: Petitions Withdrawn or Abandoned 74
Annex 4: Appeals to the Constitutional Court 75
vAbbreviations AG Attorney General ANCP African National Congress Party CMC Conflict Management Committees DA Democratic Assembly DPP Director of Public Prosecutions ECZ Electoral Commission of Zambia EISA Electoral Institute for Sustainable Democracy in Africa EPA Electoral Process Act FDD Forum for Democracy and Development IT Information Technology LGE Local Government Elections LGET Local Government Elections Tribunal MP Member of Parliament PAC Peoples Alliance for Change PF Patriotic Front S.C. State Counsel UNIP United National Independence Party UPND United Party for National Development UPP United Progressive Party YALI Young African Leaders Initiative vi
Executive Summary
This research report was commissioned by the Electoral Institute of Sustainable
Democracy in Africa (EISA) following the 11 August 2016 general elections in Zambia
with the aim of contributing to stronger election dispute resolution mechanisms in
the country. The report documents, reviews and analyses the courts’ decisions of
the 2016 election petitions, and examines emerging jurisprudence. It also provides
recommendations for electoral justice in Zambia.
Chapter one provides an overview of election petitions in Zambia from a historical
perspective. It shows that losing candidates and aggrieved citizens have had the right
to petition the outcome of elections in the courts. The first presidential election
petition was filed in 1996 and the first parliamentary election petition dates back to
1968. Zambian courts have frowned upon candidates who secure an electoral victory
using illegal and corrupt means that undermine the integrity of the electoral process.
Furthermore, they would not nullify elections on mere findings of some irregularities
or flaws associated with electoral systems except when it is demonstrated that such
flaws have a direct bearing on the people’s popular choice of the candidate.
Chapter two analyses the country’s legal framework for election petitions and
the administrative and judicial mechanisms for dealing with electoral disputes. The
Constitution of Zambia requires that elections are free from violence, intimidation
and corruption and that the electoral process ensures accountability, efficiency
and transparency as well as timely resolution of electoral disputes. The provisions
of the Electoral Process Act (EPA) set very high standards for adjudicating bodies
when determining when and when not to nullify an election. Section 97(2) of the
Act requires that the petitioner must prove as alleged, and be able to show that
the alleged breach was committed by or with the knowledge of the candidate or
his agent. Upon such proof, the Court ought to satisfy itself that the alleged breach
of the electoral law prevented the majority of people who voted from voting for a
candidate of their choice.
Chapter three analyses the petition challenging the election of the Patriotic Front
(PF) candidate, Edgar Chagwa Lungu, as president following the August 2016 polls.The
petition filed by the United Party for National Development (UPND) presidential
candidate, Hakainde Hichilema, was disposed of on a technicality based on Article
101 and 103 of the Constitution, which sets the time limit for hearing a presidential
election petition at 14 days.The chapter interrogates whether 14 days is sufficient to
viihear an election Petition of such magnitude, prominence and importance. It concludes that consideration should be given to increasing the time limit without creating a leadership vacuum, as this would have an adverse effect on the entire country. Chapter four examines the decisions arrived at by the High Court on the 86 parliamentary election petitions filed by losing candidates after the 2016 elections and the issues they raised. Out of the 86 petitions, 23 were withdrawn or discontinued, four were dismissed at a preliminary stage, 53 were heard and the elections upheld, and six were held and the elections nullified. The chapter concludes that the High Court Judges were on firm grounds in their findings when arriving at their decisions. Chapter five analyses the 58 petitions filed before various Local Government Election Tribunals (LGETs), which also had to make determinations in line with the provisions of Section 97 (2) of the EPA. The chapter notes that some of the candidates who opted to withdraw their petitions recognised the difficulty in the burden placed on them to prove that either the candidate or official agents were directly involved in the breaches or had knowledge.This leads to the conclusion that some petitioners who opted to withdraw their petitions viewed the Petition process as merely academic, while in some of the Petitions that went to trial and were dismissed, the petitioners could prove only one claim of the required three. The chapter also highlights the failure of candidates to settle electoral disputes through the Conflict Management Committees (CMCs) established by the Electoral Commission of Zambia (ECZ). Chapter six provides 17 recommendations for enhancing electoral justice in Zambia. It is hoped that these recommendations provide a useful basis for future engagement of the country’s electoral stakeholders on issues related to election dispute resolution, as it is a critical component of the electoral cycle. viii
Chapter 1
Introduction and History of Election Petitions
in Zambia
1.1 Introduction
Zambia held its sixth general elections since its return to multi-party democracy
on 11 August 2016. Mr Edgar Lungu was re-elected into office based on the
majoritarian system as provided for in the Constitution of Zambia, 1991 as amended
in 2016. The polls also saw the election of 156 Members of the National Assembly
and the direct election of 103 Mayors and Council Chairpersons by the Zambian
voters rather than the internal election by fellow Councillors that existed before
the Constitutional amendment. A total of 1,640 Councillors were also elected to
various City, Municipal and District Councils in the Local Government Elections
held simultaneously with the Presidential and Parliamentary Elections.
Following the 11 August 2016 polls, attention shifted in the post-election phase to
the various Election Petitions which were filed in the Courts contesting the outcome
of the elections at Presidential, Parliamentary and Local Government levels. From
19 August 2016 to 31 December 2016, a total of 145 Election Petitions were duly
filed and heard by the Constitutional Court, High Court and Local Government
Election Tribunals.
The Petitions included a Petition for the Presidential Election filed before the
Constitutional Court by Hakainde Hichilema and Godfrey Bwalya Mwamba of
the United Party for National Development (UPND) but was dismissed for want
of prosecution due to time limitations as stipulated in the Constitution. The others
were 86 for Parliamentary Elections and 58 for Local Government Elections. A
summary on how different adjudicating bodies heard and determined these Petitions
is provided in Chapters 3 to 5 of this Report.
11.2 Objectives of the Study
This research was commissioned to document, review and analyse the Court
decisions from the 2016 Election Petitions and analyse the emerging jurisprudence.
The overarching objective of the study is to contribute to stronger electoral dispute
resolution mechanisms in Zambia.
The specific objectives were to:
i. document, review and analyse the Court decisions on the 2016 Election
Petitions;
ii. examine prominent issues around the Petitions such as the conduct of the
Judges, validity of the judgments and trends in the decisions among others;
iii. assess the extent to which the Election Petitions process met the principles
of electoral dispute mechanisms;
iv. highlight key issues for the appeals process; and
v. provide recommendations for electoral justice in Zambia.
1.3 Basis of Election Petitions
The Constitution of Zambia1 provides for a legal regime that allows political parties,
candidates aspiring for different offices and citizens with voting rights to Petition
the nomination of candidates and election results, if not satisfied. After elections,
Zambian Courts and Tribunals continue to adjudicate Election Petitions filed at
Presidential, Parliamentary and Local Government Election levels. A detailed
analysis of electoral dispute resolution mechanisms and electoral cycle is provided
in Chapter 2.
With the reintroduction of a multi-party democratic system of electing leaders, a
new challenge of electoral disputes and how to resolve these disputes has emerged,
which has placed Zambia’s judicial system at the epicentre in the resolution of these
disputes. From 1991, Zambia has seen an increased number of election Petitions
filed after each election.
Disputes are inherent to any electoral process and it is therefore imperative to
develop effective dispute resolution mechanisms that lead to electoral justice
and contribute to credible elections. Zambia has an existing legal framework that
1 CAP 1 of the Laws Zambia, Constitution of Zambia, 1991 as amended by Act No. 2 of 2016
2establishes Courts and non-judicial structures for delivering electoral justice before,
during and after elections. The legal framework for disputes related to election
results includes the newly established Constitutional Court by the amended
Constitution of 2016, the High Court and Local Government Election Tribunals
(LGETs).
1.4 History of Presidential Election Petitions
The first-ever presidential election Petition was filed in the Supreme Court of
Zambia in 1996 in the case of Akashambatwa Mbikusita Lewanika, Hicuunga Evaristo
Kambaila, Dean Namulya Mungomba, Sebastian Saizi Zulu, Jennifer Mwaba v. Frederick
Jacob Titus Chiluba.2 In this case, the five Petitioners challenged the election of the
Respondent as President of Zambia on 18 November 1996 on the grounds that he
was not qualified to be a candidate for election as President and be elected because
neither Dr Chiluba nor his parents were citizens of Zambia by birth or by descent
as required by Article 34 (3) of Schedule 2 to the Constitution of Zambia.3 The
Petitioners also alleged electoral flaws in the electoral system, and asked for the
annulment of the election on the ground that it was rigged and not free and fair.
This Petition was dismissed for being frivolous and not supported by evidence. The
Supreme Court of Zambia noted:
The elections while not perfect and in the aspects discussed quite flawed, were
substantially in conformity with the law and practice which governs such elections;
the few examples of isolated attempts at ‘rigging’ only served to confirm that
there were only a few superficial and desultory efforts rather than any large
scale, comprehensive and deep rooted ‘rigging’ as suggested by the witnesses
who spoke of aborted democracy.
In 2001, the second Presidential Election Petition was brought before the Supreme
Court of Zambia over the election of Levy Patrick Mwanawasa, S.C. by three
Petitioners, each Petitioner filing a separate Petition. The three Petitions were
consolidated into one Petition on 31 July 2002 as appears in the case of Anderson
Kambela Mazoka, Lt General Christon Sifapitembo, Godfrey Kenneth Miyanda v. Levy
Patrick Mwanawasa, the ECZ and the Attorney General4 in which the Petitioners
2 S.C.Z. Judgment No. 14 of 1998
3 Constitution of Zambia (Amendment) Act No. 18 of 1996
4 (2005) Z.R. 138 (S.C.)
3petitioned the election of the 1st Respondent as President on grounds that the
election was fraught with general and notorious bribery, corrupt and illegal practices
as well as misconduct by reason of which the majority of the voters were or may
have been prevented from electing a candidate of their choice and were therefore
disenfranchised.
The other ground was that the election result was pre-determined or pre-arranged
by Levy Patrick Mwanawasa and/or his agents in Levy Patrick Mwanawasa’s favour
and therefore was contrary to the spirit of upholding the value of democracy,
transparency, accountability and good governance and hence was a sham and was
null and void.
The Petitioners also alleged that the Electoral Commission of Zambia (ECZ) was
negligent and failed to supervise or superintend the Election in accordance with
the Electoral Act and its Regulations, thereby facilitating the illegal and fraudulent
conduct of several of its officers such as the opening of ballot boxes, or allowing
them to be opened, in the absence of interested parties and deliberately transporting
ballot boxes without seals and unaccompanied by agents of Parties.
In its Judgment delivered on 16 February 2005, the Supreme Court determined and
declared Levy Patrick Mwanawasa to have been duly and validly elected as President
of the Republic of Zambia while noting, as in the earlier case of Chiluba, that:
We are satisfied, on the evidence before us, that the elections, while not being
totally perfect as found and discussed, were substantially in conformity with the
law and practice. The few partially proved allegations are not indicative that the
majority of the voters were prevented from electing the candidate whom they
preferred; or that the election was so flawed that the dereliction of duty seriously
affected the result which could no longer reasonably be said to reflect the true
free choice and free will of the majority of the voters. 5
In summary, the Supreme Court set the tone that while the Court would frown
upon illegal or corrupt practices, it would not always be the Court’s finding that
illegalities would always result in the nullification of elections, especially if there
is insufficient proof that the majority of voters were prevented from voting for
candidates of their choice. These principles have been recognised in the development
5 Supra Note 8 at 171-172
4of electoral laws over a period of time and, as such, the Courts would be hesitant
to declare elections null and void if the other ingredients were not proven to the
satisfaction of the Court.
1.5 History of Parliamentary Election Petitions
Parliamentary Election Petitions in Zambia on the other hand have a longer history
than Presidential Election Petitions and some of the earliest Parliamentary Election
Petitions date as far back as 1968 such as the case of Re Three Election Petitions.6
Some losing Parliamentary candidates in the 1968 general elections also exercised
their constitutional right to challenge the election of persons who were declared
as duly elected. For instance, in 1969 a Petition was filed before the High Court in
the case of Jere v. Ngoma7 in which Mr Wingford Kaliza Jere, who had intended to
put himself forward as a candidate for the African National Congress Party (ANCP)
for the Chipata West Constituency at the General Election, sought a declaration of
Mr John Chiponda Chisamba Peterson Ngoma as void. The petitioner alleged that
he was prevented by supporters of Mr Ngoma from duly lodging his nomination
papers on Nomination Day, namely 26 November 1968. The High Court, when it
ruled in favour of Mr Jere and nullified the election, stated as follows:
… I am therefore satisfied that on this (Nomination) day there were crowds of
opponents of the petitioner stationed at the entrance to the returning officer’s
office in order to prevent his (the petitioner’s) access to the office; that he was put
in reasonable fear so as to prevent him approaching the returning officer to lodge
his nomination papers, and that this amounted to misconduct. I therefore find
that this behaviour of the crowd at the education offices on that day constituted
misconduct as a result of which the majority of voters in the constituency of
Chipata West were or may have been prevented from electing the candidate
whom they preferred, contrary to section 16 (2) (a) of the Electoral Act, 1968 …
In Paul John Firmino Lusaka v. John Cheelo,8 the Petitioner, a losing candidate for
the election to the National Assembly election for Kafue Constituency held on
12 December 1978, filed a Petition in the High Court alleging that the Respondent,
Mr John Cheelo, was guilty of undue influence, threatening to use force, and bribery
in different instances. On the evidence, the Court found the Respondent guilty of
6 1968/HP/EP/5, 21 and 22 (Unreported)
7 (1969) Z.R. 106 (H.C.)
8 (1979) Z.R. 99 (H.C.)
5the illegal practice of bribery and, accordingly, the election of the Respondent was nullified. It is worth pointing out that the grounds in these early Petitions are similar to recent and present-day Petitions and the reasoning of the Courts in either nullifying or confirming the election of Candidates has not changed much over the years. More examples of recent Parliamentary Election Petitions of precedential value include landmark cases such as Josephat Mlewa v. Eric Wightman;9 Michael Mabenga v. Sikota Wina, Mafo Wallace Mafiyo and George Samulela;10 and Priscilla Mwenya Kamanga v. Attorney General, Peter N’gandu Magande.11 The Michael Mabenga and Priscilla Mwenya Kamanga cases went on appeal to the Supreme Court, while in the case of Priscilla Mwenya Kamanga the appeal was upheld and the election was nullified on grounds of misconduct. The appeal in the Mabenga case was dismissed and the election was upheld and the ground of malpractices was dismissed. 1.6 Conclusion It is clear from this chapter that losing candidates and citizens in general have had the right to petition the outcome of elections in Zambia. It is also clear that Courts have frowned upon candidates who secure an electoral victory using illegal, corrupt means and methods that undermine the integrity of the electoral process. It has also been shown that Courts would not nullify elections on mere findings of some irregularities or flaws associated with electoral systems, except when it is demonstrated that such flaws have a direct bearing on the people’s popular choice of the candidate. As can also be seen, Zambia saw its first Presidential election Petition only following the 1996 Presidential Election. Until Zambia moved from the “one-party participatory democracy”, which allowed Dr Kaunda to be the only candidate in a Presidential election, it was not possible to petition the outcome of the presidential election. Petitions are also associated with a multi-party democratic process that allows more than one candidate to contest elections. 9 (1996) S.J. 1 (S.C.) 10 (SCZ Judgment No. 15 of 2003) 11 (2008) Z.R. 7 Vol. 2 (S.C.) 6
Chapter 2
Laws Pertaining to Election Petitions and
Other Electoral Dispute Mechanisms
2.1 Introduction
Since 1964, Zambia has enacted different laws to provide for how elections for
President, the National Assembly and Local Government (district, municipal and
city councils) ought to be conducted. Noteworthy is a pattern where almost every
piece of legislation enacted appeared to be passed at a time when the preparations
for elections at Local Government, National Assembly or Presidential level were
at an advanced stage.
The making of new electoral laws has followed the consistent path associated
with Zambia’s constitutional reform. The Electoral Act12 was framed to support
relevant provisions contained in the 1964 Constitution as amended in 199613
which acknowledged the existence of political parties in the National Assembly by
requiring a Member of Parliament (MP) to resign if he or she ran for election as a
member of a party and subsequently left that party.14 Ever since, the Electoral Act
has either been repealed or amended at every instance when the Constitution has
been amended or repealed. For instance, the 1973 Constitution introduced the
two-tier system of primary and final National Assembly elections, and following
upon, another Electoral Act15 subsequently repealed and replaced the 1968 Act.
At every turn when the Constitution has been amended, there has been a shift in
the electoral law affecting laid-down precedents that the Courts could have set
before amendments and it will be seen, in Chapter 4, how the new electoral law has
also affected old-age precedents. The constant changes in electoral laws, rules and
12 Act No. 24 of 1968
13 Act No. 47 of 1966
14 It was considered unwise for an MP who wished to retain his seat to change parties midstream because in
the seven instances where this happened during the first Assembly, not even in one case were the electorate
persuaded to follow their MP to his or her new party.
15 Cap. 19, 1973
7regulations, shortly before or after each election, are not conducive to the creation
of a uniform pattern over time in what the public would view as consistency by
adjudicating bodies in the enforcement of electoral laws and upholding the principle
of stare decisis, based on precedent. The amendment, repeal and re-enacting of
electoral laws, as will be shown later, has a serious effect on how Courts and
Tribunals determine electoral Petitions or indeed disputes.
2.2 The Constitution of Zambia
The Constitution of Zambia16 is the primary and principal source of electoral
laws that govern the conduct of elections and resolution of electoral disputes.
It comprehensively provides for the modus operandi for conducting elections
in Zambia at all levels. Since 1964 to date, the Constitution of Zambia has been
consistent in spelling out principles on the resolution of electoral disputes. These
principles have been reflected in some Acts of Parliament and other subsidiary laws
passed pertaining to electoral disputes.
Article 43 of the Constitution of Zambia17 requires that citizens must endeavour
to register and vote, if eligible, in national and local government elections and
referenda. The electoral system is anchored on the provisions of Article 45, which
set principles and provide a legal framework for Zambia’s electoral system. Article
45 reads:
(1) The electoral systems provided for in Article 47 for the election of President,
Member of Parliament or councillor shall ensure –
a) that citizens are free to exercise their political rights;
(2) The electoral process and system of administering elections shall ensure –
a) that elections are free and fair;
b) that elections are free from violence, intimidation and corruption;
c) independence, accountability, efficiency and transparency of the
electoral process;
d) timely resolution of electoral disputes.
16 Supra Note at 5
17 Constitution of Zambia (Amendment) Act No. 2 of 2016
8Article 52 (6) explains in clear terms what happens to an election when one
candidate resigns on his own accord, dies or becomes disqualified after having filed
his or her nomination:
Where a candidate dies, resigns or becomes disqualified in accordance with
Article 70, 100 or 153 or a Court disqualifies a candidate for corruption or
malpractice, after the close of nominations and before the election date, the
Electoral Commission shall cancel the election and require the filing of fresh
nominations by eligible candidates and elections shall be held within thirty days
of the filing of the fresh nominations.
It is surprising that a democratic constitution would provide for cancellation of an
election and require the filing of fresh nominations in an instance where a candidate
resigns on his or her own accord after successfully filing nominations. This scenario
would produce conflict where, for instance, after filing of nomination in presidential
elections, candidates conspire to cause postponement of elections through one
resignation after another.
Article 55 allows persons to challenge, before a Court or Tribunal, the nomination
of a candidate within seven days of the close of nominations. Under this provision,
it is mandatory for the Courts or Tribunals to hear the filed Petition within 21
days of its lodgement and ensure that 30 days before the general elections, all such
disputes are concluded and disposed of.
Under the Constitution, a person may also challenge the declaration of any person
who has been declared unopposed within seven days of the declaration and the
Courts or Tribunals are expected to hear and determine the matter at least 30
days before the general election.18
Important to the electoral process in Zambia is also Article 56 and Article 57 of the
Constitution. The former sets out the election date, which is the second Thursday
in August of every five years following an election, while the latter provides for the
timeframe within which the election must be held in the event that a vacancy occurs
on all levels of candidacy, apart from the Presidential by-election.
Other Constitutional provisions that have an effect on elections and petitions will
be discussed in detail in the chapters to follow.
18 Ibid, Article 53
92.3 The Electoral Process Act No. 35 of 2016
The Electoral Process Act (EPA) is a key election legislation that derives its existence
from the Constitution as provided for under Articles 48, 49 and 54. The Act has
repealed and replaced the Local Government Elections Act19 under which the Local
Government Elections were held and the Electoral Act20 under which Presidential
and Parliamentary elections were held.
The Act gives guidance on the whole voting process in Zambia from the beginning to
the end of the election process as well as dispute resolution mechanisms provisions
before, during and post elections. It provides for registration of voters, and creates
and ushers in election officers. Section 3 of the Act provides as follows:
Subject to the Constitution, the principles applied in the electoral system and
process shall ensure the following:
a) equal and universal suffrage;
b) no discrimination based on gender or disability when providing electoral
services;
c) transparent and credible electoral process;
d) no special privileges accorded to a political party or social group, except for
persons with special needs;
e) no impediments to lawful inclusion in the electoral register;
f) impartial voter-education programmes;
g) access to polling stations for representatives of political parties, accredited
local or international election monitors, observers and the media;
h) secrecy of the vote;
i) design of the ballot paper that promotes easy use;
j) transparent and secure ballot boxes;
k) impartial assistance to voters at the polling station;
l) transparent, accurate and reliable vote counting procedure;
m) proper management of invalid ballot papers;
n) precautionary measures for transporting of election materials;
o) impartial protection of polling stations;
p) established procedures for lodging and dealing with complaints;
q) impartial handling of election complaints;
19 Chapter 282 of the Laws of Zambia
20 No. 12 of 2006
10r) impartial delimitation of electoral boundaries; and
s) timely resolution of electoral disputes.
Section 110 of the Act provides for the Electoral Code of Conduct, breach of which
may necessitate Election Petitions.
The new electoral law has a bearing on how Election Petitions are determined as
opposed to the previous law. For instance, under this Act, once the Petitioner or
claimant proves any one allegation on which his or her petition is based during the
hearing of the election Petition, the burden of proof shifts to the Respondent to
dispute the facts. The Act also requires the Petitioner to not only prove allegations
being complained against but also show that the majority of voters in a constituency,
district or ward were or may have been prevented from electing the candidate in
that constituency, district or ward whom they preferred.
Part VIII of the EPA creates and provides for the offences of corruption, illegal
practices and several other election offences. It is under this part that most of the
disputes arise. On the other hand, Part IX of the Act provides for the Election
Petitions that may be commenced for breach of Part VIII aforesaid. Part IX details
the procedure on how an election Petition must be lodged and presented, the nature
of the reliefs sought and the grounds upon which the election may be nullified. It
is also under this part that the details of the rules and procedure are spelt out.
The Code of Conduct is provided for in Section 110 of the Act under Part X. The
Code regulates the behaviour of all the election stakeholders such as candidates,
agents, monitors, election officials, the media, and law enforcement agencies on how
they must handle and conduct and carry their respective selves during elections.
All election stakeholders are guided by the Code.
Some details of the provisions of the EPA will be discussed in subsequent chapters.
2.4 Administrative and Judicial Electoral Dispute
Resolution Mechanisms
As already noted, disputes are inevitable in the election process, and there must be
mechanisms in place to resolve these disputes. Electoral disputes can be categorised
at all levels of the electoral cycle, i.e. before, during and post elections. It is for this
reason that different electoral dispute mechanisms along the electoral process have
11been designed. This is to reduce the number of post-election disputes and increase the acceptance of results and enhance the legitimacy of the electoral process. The starting point for dispute resolution is Section 113 of the EPA, which provides for the ECZ, for purposes of resolving electoral disputes, to constitute such number of Conflict Management Committees (CMCs) as the Commission may determine. Further to this, there are three institutions that have been put in place for the resolution of disputes: the Constitutional Court, the High Court and the Local Government Elections Tribunals. The Constitutional Court is established under Article 127 of the amended Con stitution of 2016. The Constitutional Court Act21 gives further details on how the Constitutional Court is supposed to operate. Article 128 of the Constitution and Part II in Section 8 (1) (c), (d) and (e) of the Constitutional Court Act22 establish and provide for jurisdiction of the Constitutional Court, which, among other things, hears and determines a Petition to challenge the nomination of a candidate for election as President of the Republic and or indeed his or her election. The Constitutional Court also has jurisdiction to determine Election Petition appeals from the High Court. The procedure for the dispute resolution of Presidential Election Petitions is further set out in the Constitutional Court Rules23 under Order XIV. The aforesaid Order provides for the particulars to be included in the Petition, the service of the same and how it is supposed to be responded to. It also provides for all the steps to be taken leading to the disposal of such a Petition. The High Court on the other hand has jurisdiction to adjudicate on Parliamentary Election Petitions. Article 73 (1) of the Constitution provides that, “a person may file an election Petition with the High Court to challenge the election of a Member of Parliament”. This is the primary legal framework for the resolution of Parliamentary Election disputes, and the forum before which such can be settled is the High Court. Apart from this express provision, Article 134 of the Constitution is key in this discussion as the High Court has, by law, unlimited and original jurisdiction in civil and criminal matters. Article 73 (1) of the Constitution and Section 100 (2) (b) of the EPA are instructive as to where a Parliamentary Election Petition must be lodged. It states that the 21 No. 8 of 2016 22 Ibid 23 Statutory Instrument No. 37 of 2016 12
Election Petition may be presented to the Principal or District Registry of the
High Court. Over and above this, the EPA provides in Parts IX and X for different
procedures and processes as regards Election Petitions in the High Court and
Election Petitions in the LGET.
The Constitution in Article 159 establishes the LGET. The Tribunal is established
under this provision for the purpose of hearing whether someone has been validly
elected councillor or the office of councillor has become vacant. It should be
mentioned that the LGET is a novel creature of the Constitution as amended in
2016. Before this, Election Petitions at Local Government level used to be filed and
determined by Subordinate Courts with the right of appeal to the High Court and
subsequently to the Supreme Court.
In furtherance of the purposes of the Article above, in 2016 the Chief Justice
promulgated or put in place the LGET Rules.24 In these Rules, the jurisdiction of the
Tribunal is set out in Rule 3 while restating the Constitutional provision of Article
159 as the function of the Tribunal. Parts IX and X provide for the procedure on
how the commencement, trial and determination of the Local Government Elections
must be conducted.
It should be mentioned that in terms of the powers of the Tribunal, it has been
given power under Article 157 (3) to disqualify or bar councillors whose elections
are nullified by the LGET to contest elections during the life of that Council. The
High Court has not been given similar powers when an election of a Member of
Parliament is nullified. Rather, the Constitutional Court under Article 72 (4) (a)
and (b) has been given such powers.
A member of the National Assembly or Council whose election is nullified by the
High Court or Tribunal may appeal against the decision of the High Court or LGET
to the Constitutional Court. Where an appeal is lodged with the Constitutional
Court, such a member may vacate their seat only upon determination of the appeal
by the Constitutional Court. This is in line with the provisions of Articles 73 (4) and
159 (6) of the Constitution. This position was confirmed by the Constitutional Court
in the case of Margaret Mwanakatwe v. Charlotte Scott, ECZ and Attorney General25 in
which a single Judge stated:
24 Statutory Instrument No. 60 of 2016
25 2016/CC/AOI8
13In that regard, I note that Article 72(2) of the Constitution addresses instances
when the office of Member of Parliament becomes vacant. Of particular relevance
to this application is Article 72 (2) (h) where one can cease to be a Member
of Parliament following a decision of the Constitutional Court. My considered
view is that I see no need to entertain this application for stay any further when,
by operation of law and in terms of the Constitution, it is clear when a seat
becomes vacant. One of those instances is when the Constitutional Court makes
a final determination on a seat that has been nullified. In the premises, I find this
application for stay of execution of the judgment of the court below irrelevant
because when there is an appeal, the law, as per constitutional provisions, has
stated that the seat only becomes vacant after the final determination of the
Constitutional Court 26 (Emphasis supplied).
2.5 Conclusion
The legal framework of Election Petitions in Zambia shows complexity in the
procedures as well as evolution of the law. So while the Constitution of Zambia
provides for the legal framework that strictly requires that elections are free from
violence and intimidation and that there is accountability, efficiency and transparency,
the EPA has demonstrably introduced further provisions which have set standards
very high for adjudicating bodies when determining Election Petitions on when to
nullify or not nullify an election. In an environment where proof is available that
elections were marred with violence and corrupt and illegal practices, the hands of
the Courts are tied if the Petitioners fail to prove that such acts were conducted by
or with the full knowledge of the candidate or agent. As will be shown in Chapter
4, the High Court acknowledged that the difficulty arises when determining the
threshold required for a proven allegation to be considered as having influenced or
prevented the majority of voters in a constituency, district or ward from electing
the candidate of their choice in that constituency, district or ward. Against this
backdrop, Chapters 3 to 5 analyse how Courts arrived at their respective decisions
in determining Election Petitions following the 2016 general elections.
26 Page R21 of the Ruling
14Chapter 3
An Analysis of the 2016 Presidential Election
Petition
3.1 Introduction
After the general elections held on 11 August 2016, the declaration of the winner
of the Presidential Elections was made on Monday, 15 August 2016. As per Article
99 of the Constitution of Zambia, the Chairperson of the ECZ, Justice Esau Chulu,
made the declaration. The declaration stated that the total number of votes cast
was 3,781,505, with 85,795 as rejected votes and 3,695,710 as valid votes. This
represented a turnout of 56.45% of registered voters.27
Out of the valid votes cast, the nine participating or contesting candidates polled
as tabulated below:
No. Candidate Name Sex Party Votes Percentage
1. Edgar C. Lungu Male PF 1,860,877 50.35%
2. Hakainde Hichilema Male UPND 1,760,347 47.63%
3. Edith Z. Nawakwi Female FDD 24,149 0.65%
4. Andyford M. Banda Male PAC 15,791 0.43%
5. Wynter Kabimba Male Rainbow 9,504 0.26%
6. Saviour Chishimba Male UPP 8,928 0.25%
7. Tilyenji C. Kaunda Male UNIP 8,198 0.24%
8. Peter C. Sinkamba Male Green 4,515 0.12%
9. Maxwell Mwamba Male DA 2,378 0.06%
27 https://www.elections.org.zm/general_election_2016.php
15In line with Articles 47 (1) and 101 (2) of the Constitution, Edgar Chagwa Lungu, and his running mate pursuant to Article 110 (1) of the Constitution, Inonge Mutukwa Wina, of the PF, were declared President-elect and Vice President-elect respectively of Zambia on 15 August 2016. The President-elect and his Vice President-elect were scheduled to be sworn into office on the Tuesday following the seventh day after the date of the declaration of the presidential election results, if no Petition had been filed in accordance with Article 103 of the Constitution; or the seventh day after the date on which the Constitutional Court declares the election to be valid. This is in line with Article 105 (2) of the Constitution. As it would turn out, the UPND losing candidates, Hakainde Hichilema, and his running mate, Geoffrey Bwalya Mwamba, were aggrieved with the aforesaid declaration and filed an Election Petition28 in the Constitutional Court on Friday, 19 August 2016. The Petitioners cited Edgar Chagwa Lungu, Inonge Mutukwa Wina and the ECZ as 1st , 2nd and 3rd Respondents respectively. The Petitioners requested the Constitutional Court to declare that the President- elect Lungu and Vice-President-elect Wina were not validly elected and that the presidential election was invalid for non-compliance with the legal framework for elections. Further, they requested a declaration that Mr Lungu did not receive more than 50% of the valid votes cast. The Petitioners also asked the Court to order a recount of all votes in the Presidential Election, and scrutinise all rejected ballots. They further sought a declaration that UPND won the election, or, should the Court order a second ballot, disqualify Mr Lungu as a candidate in any future election. The Petition was based on arguments pertaining to both the electoral environment, such as bias in the public media, restrictions on movement and campaigning, as well as irregularities alleged during polling, counting, tallying, transmission and announcement of results. The Attorney General (AG) was later joined to the proceedings as the 4th Respondent. It is important to point out that as per the provisions of Article 101 (4) and 103 (1) of the Constitution, a person may Petition presidential election within seven days of the declaration made by the Returning Officer. This means that the UPND had up to Monday, 22 August 2016, to file the Election Petition but elected to file the same on Friday, 19 August 2016 with no or insufficient evidence. This may have contributed to what transpired post the time of filing the Petition. 28 Case No. 2016/CC/0031 16
Suffice it to say that stakeholders have wondered whether the period of seven days
to file a presidential Petition is reasonable for legal teams and Petitioners to gather
evidence, interview and record witness statements that have to be filed with the
Petition at the close of the seven-day period from the date of the declaration. This
limitation has encouraged advocates to duplicate claims and statements, which, when
noticed by other parties, raises possibilities for interlocutory claims for dismissing
Petitions. A recommendation therefore is that this period be increased to 14 days
to allow enough time for petitioners and advocates to prepare and file a petition.
3.2 The Happenings after Filing of the Petition
In the heading of the Election Petition, the Petitioners cited among other laws
Articles 1, 2, 5, 9, 45, 46, 47, 48, 59, 50, 54, 60, 90, 91, 93, 101, 102, 103, 104,
118, 128 and 267 of the Constitution of Zambia. The citing of the above Articles,
specifically 101 and 103, later became the subject of an application for a Preliminary
Issue raised by the Respondents, who contended that the Petition presented by
the Petitioners was scandalous and may prejudice, embarrass or delay the fair trial
of the matter, as the Petitioners had invoked two distinct, conflicting and mutually
exclusive provisions of the Constitution – videlicet, Articles 101 and 103. Therefore
any reference to Article 103 in paragraph 30 and wherever it appeared in the
Petition must be struck out.
It was the Respondents’ argument that the Petitioners were supposed to rely only
on the provisions of Article 101 in their Petition, as the President-elect and his Vice
had been declared winners after the first round of polls without the necessity of
a re-run or second round, which would have been be the case had they failed to
garner more than 50% of the valid votes cast after the first poll on 11 August 2016.
The Respondents further argued that Article 103 comes into play only if there is
a re-run or second poll.
To stretch the above argument, it would seem that the only time the Constitution
envisages the President-elect not being sworn into office because an election
Petition has been filed is when the elections are won after the second round. This
is because Article 105 (2) (a) of the Constitution only talks about a Petition filed
under Article 103.
17It would seem that because of the aforesaid provisions of Article 105 (2) (a), the Petitioners had to cite both Articles 101 and 103 in their Petition. Because the provisions of both Articles were invoked, the swearing-in of the President-elect and his Vice could not take place on Tuesday, 23 August 2016. Suffice it to say that the Constitutional Court never delivered its Ruling on the Preliminary Issues raised by the Respondents and, accordingly, the contention on whether a Petitioner of Presidential Elections can invoke both Articles 101 and 103 at the same time, or indeed whether when someone wins in the first round of polls they can be sworn into office despite the filing of an election Petition, is yet to be pronounced on by the Constitutional Court. After the Petition was filed on 19 August 2016, the period that followed was a hive of activities. The following week the AG was joined to the proceedings as the 4th Respondent. In the same week the single Judge of the Constitutional Court ordered that in preparing their Answers to the Petition, the Respondents should concentrate only on the witness statements that were filed at the same time with the Petition and disregard all those witness statements that were filed after the Petition was already filed and without leave of the Court. This could eventually leave the Petitioners’ case to be determined on the basis of 21 witness statements filed together with the Petition on 19 August 2016. The Order made by the Court was pursuant to Order 14 Rule 1 (3) of the Constitutional Court Rules,29 which requires that a Presidential Election Petition should be filed together with an Affidavit Verifying Facts; witness statements; skeleton arguments; and a list of authorities and copies of authorities cited. It was also during the week that the Petitioners applied to amend their Petition on 25 August 2016. The application was later denied by the Court. Another application that was heard during the week was the one the Petitioners made for the preservation of election materials, which was also dismissed by the Honourable Court. On 24 August 2016 the single Judge of the Constitutional Court issued directions in the matter. The directions issued initially were that the matter would be heard from Friday, 2 September 2016 and end on Thursday, 8 September 2016. Some representations were made by Counsel for the Respondent, which resulted in the single Judge summoning the parties on the morning of 1 September 2016 and 29 Supra Note 17 18
directing them that the hearing of the matter would commence and conclude on
Friday, 2 September 2016, being the last day of the hearing.
On Friday, 2 September 2016 the full bench of the Constitutional Court comprising
five distinguished Judges were all set to hear the Petition from as early as 07:00
hours. The Court accordingly informed the parties that the hearing would extend
to 23:45 hours and that each side would be given six and half hours in which
to present their cases. However, the Petitioners’ Advocates made a number of
preliminary applications on which the Court had to make rulings. The last of the
aforementioned applications was determined only after 19:00 hours, leaving only
about four hours in which the parties would present their cases. The parties were
accordingly informed that each side to the Petition had about two hours in which
to present their cases.
It was at this stage that Advocates for the Petitioners applied for leave to be excused
from representing the Petitioners on the basis that the two hours was inadequate
for them to represent their Clients effectively. The Advocates were accordingly
granted the leave. After the withdrawal of their Advocates from representing them,
the Petitioners personally addressed the Court and requested for time within which
to engage Counsel. At about 23:55 hours on 2 September 2016, the application
was granted and the Court adjourned the matter to Monday, 5 September 2016
at 08:00 hours.
The Court further directed that the matter would be heard up to 8 August 2016,
with each side given two days in which to present their cases. However, before the
Court could rise, the Learned AG informed the Court that in line with Article 101
(5) of the Constitution, a Presidential election Petition was supposed to be heard
within 14 days after being filed. It was his contention that hearing the matter outside
the 14 days prescribed by the Constitution would render such a hearing a nullity.
3.3 The Final Verdict
When the matter came up on Monday, 5 September 2016 at 08:00 hours the
Advocates for the Petitioners who had withdrawn from representing the Petitioners
on 2 September 2016 were in Court. An apology was rendered on their behalf
by Mr Vincent B. Malambo, S.C. on the way proceedings turned out on Friday,
2 September 2016. However, on 5 September 2016, it is interesting to note that
the Advocates for the 1st , 2nd and 3rd Respondents were conspicuously missing
from the Courtroom.
19On Monday, 5 September 2016, the Constitutional Court finally disposed of the
Election Petition on a technicality. Three Judgments or Rulings30 were delivered
on the said day. The first was the majority Ruling, which constitutes the decision
of the Constitutional Court. The other two Judgments were dissenting Judgments.
The majority Judgment, which constitutes the decision of the Constitutional Court
in line with Section 3 (5) of the Constitutional Court Act No. 8 of 2016, was the
opinion of three Judges, namely, Justices A. M. Sitali, M. S. Mulenga and P. Mulonda. It
was the holding of the Court that as Articles 101 (5) and 103 (2) of the Constitution
limit the period within which a presidential election Petition must be heard by the
Constitutional Court to 14 days after the filing of the Petition, the Court could not
competently hear a Petition outside this period. The Court stated:
As we have said in this case, the period for hearing the Petition is prescribed
by the Constitution itself. The timeframe is rigid and thus this Court has not
been given discretion to enlarge time. This is for good reason, that is, to avoid
prolonged uncertainty concerning the office of President, which is the highest
office in this Country through a prolonged delay in swearing in of the President-
elect. Thus, the rigid timeframe for the hearing of presidential Election Petitions
was deliberately enacted by law makers because, from the provisions of Article
104, a President-elect cannot assume office once the validity of their election is
challenged. 31
As the prescribed 14 days had expired on Friday, 2 September 2016, it was the
holding of the Constitutional Court that the Petition stood dismissed for want of
prosecution. This was because the Petitioners failed to prosecute their case within
the 14 days prescribed by the Constitution after it was filed.
The other two Judges who comprised the full bench of the Constitutional Court
hearing the election Petition, Justices H. Chibomba and M. M. Munalula, delivered
individual dissenting Judgments on 5 September 2016. The salient issues arising from
the dissenting Judgments were that the 14-day period prescribed in the Constitution
for the hearing of a presidential election Petition does not take into account the
period for preparing and setting down the matter for trial. Further, that the right
to be heard is fundamental and the period of 14 days prescribed by Articles 101 (5)
and 103 (2) is not practical and therefore inconsistent with the right to be heard.
30 The majority decision was inscribed with the word “Ruling”, while the two dissenting decisions were labelled
“Dissenting Judgment”.
31 Page R13 and R14
20Following the majority Judgment, the President-elect and his Vice were sworn into
office on Tuesday, 13 September 2016.
3.4 Analysis of Some Issues Arising from the Petition
The cardinal issue that inevitably arises from the 2016 Presidential Election
Petition is the issue of the 14 days as enacted by Articles 101 (5) and 103 (2) of the
Constitution. The issue is whether the provision of 14 days for hearing a presidential
election petition is sufficient for the Courts to hear witnesses from contending
sides, evaluate evidence and make a determination of an election petition of such
magnitude, prominence and importance.
It should be mentioned that Articles 101 (5) and 103 (2) of the Constitution are
not without history. In her introductory remarks to a paper titled “Judicial Case
Management: Impact of Delays and Backlog on Public Perception of the Judiciary”,32
her Ladyship the Chief Justice observed that backlog and delay (in the disposal of
cases) has plagued many jurisdictions in the world, leading to a slowing down of the
wheels of justice. She noted that delay was being caused by cases taking too long to
be processed through the system up to and including trial or that upon being tried
the court takes too long to render its decision. The two circumstances combined
lead to a case taking years before it is cleared. In the Anderson Kambela Mazoka &
Others v Levy Patrick Mwanawasa & Others case, the Supreme Court, after tracing
the long journey that the case took before it was determined, opined thus:
We have deliberately delved into the long history of this petition in order to
bring out two points. The first point is that the events leading to the period it
has taken to complete this matter was unavoidable and in the interest of justice.
The second point is that elections, be it presidential or parliamentary, by their
nature of demanding a quick resolution, ought not and must not follow the course
of the existing clogged court system which has very slow wheels of resolution
because of the strict requirements of adherence to rules of pleadings, practice and
procedure. Matters pertaining to elections must be determined very expeditiously
lest they be rendered an academic exercise at the end.
In a well-meaning attempt to rectify the above mischief, Zambians introduced the
14-day amendment in January 2016. Prior to this amendment as indicated, such
petitions would languish before the courts for years and by the time decisions were
32 Presented at the 2015 Judicial Conference, Livingstone, https://www.daily-mail.co.zm/?p=53152
21handed down, the person whose election was challenged was well into his term of office. The effect was that either too much uncertainty was created by the pending petition that the president could not fully perform the important functions of the office, or the petition was so overtaken by events altogether that the court’s decision was more or less predetermined. Conventional wisdom therefore required some degree of certainty to be legislated. Zambia borrowed heavily in this regard from Kenya, which had only five years earlier constitutionalised a strict 14-day timeline for its Supreme Court to hear and determine presidential election petitions.33 From the way the 2016 Presidential Election Petition was determined, the obvious question that arises is whether this period is indeed sufficient to hear a Petition of the magnitude of a presidential election. The experience from the 2016 presidential election Petition shows us that the 14 days is insufficient. This is because before a Petition is heard, there is a need for documentation and setting the matter down for trial. As a presidential election affects the whole country, it is expected that the issues for determination are wider and as such involve several people to present evidence. Indeed, it has been argued that even a Local Government Election Petition has been given 30 days in which to be determined after filing by Article 159 (4) of the Constitution and Article 73 (2) of the Constitution has prescribed a 90-day period from the date of filing in which an election Petition for a member of Parliament must be heard. One would argue that the complexities and magnitude associated with the Local Government and Parliamentary Election Petitions are far less when compared to the Presidential Election. This is because Local Government and Parliamentary Election Petitions are concerned with Constituencies and Wards or Districts, while Presidential Election Petitions cover the whole country. It is also worth pointing out that is not clear whether 14 days as prescribed by the Constitution for hearing includes determination of the Petition. The Constitution of Kenya 2010 from which Zambia supposedly drew inspiration when drafting its Constitution also provides in Article 140(2) that: “Within fourteen days after the filing of a petition … the Supreme Court shall hear and determine the petition …”. In the case of Raila Odinga and 5 Others v. Independent Electoral and Boundaries Commission and 3 Others, 34 the Kenyan Supreme Court interpreted the above 33 Owiso, R. 2016. The 2016 Zambia presidential election: How not to handle a petition. AfricLaw. https://africlaw.com/2016/09/16/the-2016-zambia-presidential-election-petition-how-not-to-handle-election-petitions/ 34 Petition No. 5 of 2013 22
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