An anatomy of an election in the West: lessons for Zambia and Africa, a report
By Prof Munyonzwe Hamalengwa
There will be crucial elections in the UNited States of America and South Africa in 2024; and many other countries.
Zambia will hold its next elections in 2026. I reflect on my own participation in a local election in Canada and the broad lessons that I learnt which I can generalise for educational purposes for Africa and Zambia in particular. Hints of suggestions for reform are contained in this article. It has been stated by the Great American jurist Oliver Wendell Holmes’ that “the life of the law (substitute here elections) is not Logic, but experience”. This article is a reprint.
If my good friend Canadian-Nigerian lawyer Kingsley Jesuorobo (whom I call Mr King, shortened from Kingsley), a best selling author of the book, “Province of Poetry”, didnt phone me recently from Toronto, Canada to offer his condolences on the deaths of President Kenneth Kaunda and Chief Justice Irene Mambilima, I would never have conceived of this article. Mr King knew of my relationship with President Kaunda from our numerous discussions on African presidents and African politics in general and from my two books touching on President Kaunda as well as my recent article entitled, “My Dialogue with President Kaunda”.
Mr King sensed he needed to call and talk to me about President Kaunda. Regarding Chief Justice Mambilima, Mr King knew of my intense interest in matters of the judiciary and justice, the role chief justices can play in steering the judiciary towards judicial independence, autonomy and the rule of law. Mr King was aware of the article I had written in Pambazuka newsmagazine in 2015 about Mambilima after she had been appointed Chief Justice by President Edgar Lungu whom she had recently declared President when she was chairman of the Electoral Commission of Zambia. King was present when I launched my book on the Judiciary in Toronto. King knew of my writings on the need to have judicial diversity. King knew I would experience the death of a chief justice at a totally different multidimensional level and angle than most people.
We have discussed and written about chief justices and the judiciaries of many countries including Nigeria and Zambia. King and I go a long way back in Canada. We regularly teamed up to do certain strategic court cases together in Toronto. The most memorable one is when we brought a class action lawsuit to stop Canadian immigration from deporting a group of Nigerians to Nigeria. They rounded them up and put them in a hired plane inappropriately named “ConAir” as if it contained con-men. We brought an injunction arguing that the deportation was based on racial profiling and discrimination against Africans especially Nigerians when white immigrants were not deported in a similar fashion. Of course this was provocative albeit the truth legally so we used appropriate legal lunguage. The plane was scheduled to take off when justice O’keeffe of the Federal Court issued a stay of removal and our clients were offloaded from the plane. Some of them later became citizens as we won the case on the merits. King and I did other cases in family and criminal law together.
I had previously won a class action immigration law suit from which King and I borrowed the template to win the Nigerian case. Canada was giving amnesty to all Yugoslav immigrants who had sought refugee status in Canada because of the civil strife in Yugoslavia but was deporting Somalis who had fled Somalia because of the civil strife there. I filed a class action in which I accused the Canadian government of double standards based on race and place of origin of the immigrants. I accused the Canadian government of favouring the Yugoslavs because they were white and because the Prime Minister Brian Mulroney’s wife Mila Mulroney was from Yugoslavia. It was a high octane case and some journalists of major papers were going to cover the court case. The day before the hearing, the government conceeded and we entered into a consent judgment for a stay of deportations to Somalia.
Strategic litigation in appropriate cases can help a lot of people in one swoop than individual litigation. King and I used that strategy which helped us win the Nigerian case. But King’s call brought about a discussion of an important Canadian election from which Zambia can learn. When King learnt that we were in election season in Zambia he brought up the issue of an election in Canada which I had forgotten. He reminded me that he was present at a Nigerian restaurant called Planet Africa when I launched my election campaign for the mayor of Toronto in 1997. Indeed I ran for the mayor of Toronto in 1997. I learnt a lot from the experience.
When you run for political office in Canada, there are things you cannot avoid. Firstly, the financial record keeping requirements. The source of every dollar you raise and spend must be backed by a receipt of the source and receipt of how it was spent. Two weeks after the election you have to bring the books for auditing to an election accountability office and the books must balance and all the money that was raised has to be used up on election related matters when the books are handed over to the elections office two weeks after the elections. Any left over money has to be surrendered. No election money can be used for any other purpose than the prosecution of an election. It is a criminal offence to abuse election funds and to violate the election finance law. A number of candidates get jailed in Canada and the US on this score. In Canada there are limits as to how much money any individual can donate to a candidate. A lot of corruption is avoided when there are strict election finance laws. And because all monies have to be accounted for by veriable audited reports, leakages are easily spottable and you can go to jail.
Secondly, if you want to stand a chance of winning, you are compelled to openly in a public place, debate the other candidates on your platform followed by questions from the public. Zambian voters are cheated in that there are no compelled debates between candidates before a panel and the public followed by excruciating questions.
Candidates in Zambia get away with murder because they don’t debate and there are no financial accountability restraints whatsoever. Zambian voters sometimes end up voting for quacks who don’t know anything at all, people who win through corruption, tribalism, and rigging.
In the West, if you are serious and not going just for a funny ride, you have to back up with figures your campaign promises. You can’t say you will do this and that without showing where you are going to get the money from. When I ran for mayor my platform was reduced to: “Diversity, Equality and Socio-economic Transformation of Toronto”. Toronto is one of the most diverse cities in the world in terms of race, religion, culture, colour, ethnic, place of origin etc and yet it is a cesspool of inequalities across the board including in the socio economic areas and in criminal justice, family and educational etc systems.
How was I going to show that I was serious in my platform and deserved to be elected? I knew that the Municipal Elections Act forbade non-citizens from voting in municipal elections and the Constitution did the same in provincial and federal elections. So I filed a class action lawsuit to strike down Section 3 of the Municipal Elections Act which engendered this inequality and made it a campaign slogan of “No taxation without representation”. The Constitution didn’t prohibit non-citizens from voting in municipal elections, it was a mere local statute that did so. What the Constitution doesn’t prohibit had to go, especially when the Constitution was clear that non-citizens can’t vote at provincial and federal level.
The Constitution omitted the municipal level. I had a good case I reckoned. If I won that case in the Superior Court of Justice, I was assured of an electoral landslide, I dreamt. Thousands of immigrants some of whom had been there for even fifty years paying tax were not eligible to vote and to influence their living conditions. Municipal governments are closer to the people than provincial and federal governments.
In the public debates during candidates debates, my issue got traction. But judge Hoilett dismissed the lawsuit on the basis that I had no standing to bring such a suit since I didn’t suffer the disability myself. He forgot that I stood to benefit if the lawsuit succeeded. On socio economic transformation I focussed on eliminating homelessness. I hired a team to roam around Toronto locating bolded up houses without owners. We found thousands of these houses. The city has figures on the numbers of the homeless. My accountants figured out how much these houses would cost to repair and to house the homeless. These are the figures and numbers I would rattle during the debates.
Such are the figures you would hear Obama, Romney, Biden, Trump, Trudeau in Canada etc recite during their debates. I had a complete budget of all my expenditures and how to finance my promised programmes, budgets prepared by tax experts, accountants and economists. Taxation is the foundation of revenue to finance projects.
Obama, Biden, Trump etc all had figures or budgets of how they would finance their promises and they were questioned about them as I was when running for mayor. How many candidates in Zambia have designed budgets and can rattle them during a candidates’ debates? They are lucky they are not put to a debate and to be tested under pressure. Only a few presidential candidates can withstand the pressure of being questioned in front of a TV audience of thousands of people.
I didn’t win the election. It was partly a practice-run for the future. But that election gave me a taste of serious things that happen but not seen during an election. A mystery happened in Toronto during the counting of the votes. Barbara Hall was leading by thousands of votes when all of a sudden the tallying computer systems crushed. Tallying stopped. The engineers went to work to repair the system. When the computers became alive again, Mel Lastman had surged ahead. How could thousands of Barbara’s leading votes vanish within minutes after the computers were fixed? Beware!
Mel Lastman became mayor of Toronto. I fear computers when they crush during tallying of election votes. Who knows what happened to my votes when the computers crushed. Lessons galore.
The author teaches law and is the author of “The Politics of Judicial Diversity and Transformation: Canada, US, Britain, Australia, South Africa, Israel, Post-Colonial States and International Tribunals”. Reach him via:
munyonzwe.hamalengwa@zaou.ac.zm
-The Mast