THE UPND has submitted that the Electoral Commission of Zambia has exceeded its mandate by suddenly coming up with the online pre-voter registration without the sanction of the law.
In this matter, UPND deputy secretary general Gertrude Imenda, on behalf of the party, has sued ECZ and the Attorney General seeking a declaration that the decision of the commission to launch and host the online voter registration platform even if as a “test run” on its website eczovr.org and commence their online voter registration on the said platform was sudden and without lawful authority.
The UPND wants the court to quash the decision by ECZ to limit the voter registration exercise to 30 days, which is scheduled to commence on October 28, 2020.
The party wants a declaration that the prescribed protocols for voter registration on the ECZ website were ultra vires section 8 (2)(3), section 15 and section 125 of the Electoral Process Act number 35 of 2016 as read with regulations 11 and 12 on the Electoral (registration of voters) regulations of 1973 amended by statutory instrument number 62 of 2005.
It wants a declaration that ECZ acted unreasonably, irrationally and /or with a hidden ulterior motive at the behest of an invisible hand in announcing the 30 days cut off time for the voter registration scheduled to commence on October 18, 2020.
When the matter came up for hearing of the substantive application for judicial review before justice Mwila Chiatabo, UPND lawyer Marshal Muchende said the ECZ on September 21, 2020 launched the impugned voter registration and has called it an online pre-voter registration, which is being hosted on its website.
He said the online pre-voter registration launched by ECZ as an integral part of voter registration was not supported by law or any regulations that have been made by ECZ.
“The guiding regulations to be followed by ECZ in so far as protocol for voter registration is concerned is none other that Statutory Instrument no.38 of 2010 and regulations promulgated there under,” Muchende said.
“Under Section 125 of the Electoral Process Act, ECZ has no power or whatsoever to come up with the online pre-registration protocol unless and until ECZ by Statutory Instrument makes regulations supporting the same.”
Muchende said it was correct in this modern age where technology has advanced and in which the internet has provided convenient and faster ways of achieving ECZ’s mandate on voter registration, but there was a caveat prohibiting the ECZ to jump the gun and come up with online voter registration protocols without following the dictates of its governing laws (Section 125 of the Electoral Process Act).
He urged the court not to aide illegality no matter how ECZ tries to justify it.
“It would have been simple for ECZ to start by making regulations through an SI allowing for the online voter registration exercise but they ignored section 125 of the Electoral Process Act no. 35 of 2016 at their own peril and the court must quash their decision,” Muchende said.
“ECZ lamentably and gravely failed to give effect to section 125 of the Electoral Process Act no.35 of 2016 by arbitrarily coming up with the online pre-voter registration exercise, quash it my lord.”
Muchende noted that there had been no continuous voter registration similar to the registration of national registration cards, which was continuous.
He submitted that the cut off dates in which to conduct voter registration had been misconstrued by ECZ to mean that they could prescribe the starting and end date of voter registration.
Muchende said ECZ had not given effect to the law that governs it (section 7 and 20 of the Electoral Process Act no.35 of 2016) and that even assuming the UPND’s interpretation was wrong, the 30 days registration of voters in a penultimate year of elections was so unreasonable and in defiance of logic that no reasonable person would arrive at such a decision.
He said the cut off period was aimed at disenfranchising many eligible voters, which would create speculation and conjuncture.
“Quash the decision by ECZ to commence the voter registration exercise on October 28, and end it on November 30, 2020 because it offends section 7 and 20 of the Electoral Process Act and in defiance of logic to give 30 days for a new democratic country to register voters in a penultimate year of elections,” Muchende said
“The illegality surrounding the decision of ECZ to discard the current voter register and the decision to commence a fresh registration of voters targeting 9 million eligible voters is illegal, it offends section 7. The process is illegal and you (judge Chitabo) have the power to stop it. The court should interpret the law and guide ECZ accordingly as prescribed by law unlike what it is doing.”
Lawyer representing ECZ Bob Musenga submitted that Section 19 of the Electoral Process Act mandates the chief electoral officer to accordingly certify the voters register for purposes of the 2021 general elections after attending to objections if any as stipulated under section 17 of the electoral process Act.
Musenga said the law had deliberately and elaborately made provisions for a voter registration process and grievance address and such a clearly documented process cannot be a subject matter of judicial review.
He claimed that UPND wants to stop ECZ from exercising its mandate as the party had evidently failed to demonstrate any illegality or rationality on the part of ECZ.
He added that the Electoral Process Act and regulations had provided adequate redress avenues for persons who may be aggrieved with the voter registration process.
Musenga prayed that the UPND’s application be dismissed with costs.
Solicitor General Abraham Mwansa said the online pre-voter registration initiative would lessen the time eligible voters may spend at registration centres.
He said it was a notorious fact that not each and every eligible voter would have access to the internet in order for them to pre-register otherwise many eligible voters would have to do it physically at registration centres.
Mwansa claimed that the online pre-online voter registration was a way of securing voter registration.
“Online pre-registration of voters is nothing but a booking in advance and not registration of a voter in terms of the law. Where the law provides for continuous registration, it also provides for cut off periods under section 20 and 28(1)(7) of the Electoral Process Act no.35 of 2016,” said Mwansa.
“The registration of voters is not the only function of ECZ. Among other activities, ECZ will have to prepare a provisional register, make corrections, attend to objections within the stipulated period of time which is 90 days as well as attend to nominations, voter education and many other functions. Providing for the cut off period is a necessary evil.”
Hearing continues on October 1.