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ELECTORAL JUSTICE in ZAMBIA Resolving Disputes from the 2016 Elections and Emerging Jurisprudence

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ELECTORAL JUSTICE in ZAMBIA Resolving Disputes from the 2016 Elections and Emerging Jurisprudence 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 i Published 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: [email protected] 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 ii Acknowledgements 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. iii Contents 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 v Abbreviations 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 vii hear 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.
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