On 21 Nov 2021, I posted this on my facebook page regarding election petitions in Zambia and their unlikely success due to limitations in the law. I thought I can reload in view of the many nullifications done by the High Court being dismissed by the Constitutional Court
ELECTION PETITIONS IN ZAMBIA: A MOCKERY OF ELECTORAL JUSTICE.
In the last General Election, it is believed that over 400 election petitions were filed by losing candidates at parliamentary, district and ward levels against the winning candidates at local government, mayoral/chairperson and parliamentary levels.
The law demands that such election petitions must be heard and determined by the High Court or tribunal within 90 days from the date of the lodgement of the petitiob but the High Court or tribunal decisions are appealable in the constitutional Court.
The Constitutional Court has not timeframe in which to discharge off these petition appeals as a result can go on until the next General Election as was the case of Lundazi.
So far, many of these petitions have been discharged off at HIGH Court or tribunal levels in favour of the winning candidates and most likely the remaining will go the same way.
So far this hypothesis has been proven right by the number of petition cases originally nullified by the High Court but now being overturned by the Constitutional Court
What is the problem and is there any prospect for any successful election petition in Zambia?
The problem is section 97 of the Electoral Process Act No 35 of 2016 which guides how an election petition is supposed to done and details grounds on which to void an election.
Section 97.(1) guides that An election of a candidate as a Member of Parliament, mayor, council chairperson or councillor shall not be questioned except by an election petition presented under this Part.
Subsection 2 stresses that the election of a candidate as a Member of Parliament, mayor, council chairperson or councillor shall be void if, on the trial of an election petition, it is proved to the satisfaction of the High Court or a tribunal, as the case may be, that—
(a) a corrupt practice, illegal practice or other misconduct has been committed in connection with the election— by a candidate; or with the knowledge and consent or approval of a candidate or of that candidate’s election agentor polling agent; and 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;
This is the biggest obstacle to election petitions success in Zambia as it is not possible to prove any candidate’s direct involvement in electoral irregularities and malpractices such as violence, corruption etc.
The Act also guides that any omission by the Electoral Officers cannot be used as a basis to petition an election and void.
So repealing section 97 of the electoral process Act is key to future successful election petitions and also for rooting out electoral corruption, violence and other malpractices and illegalities in the electoral process.
As it stands now, one cannot blame the judges at the Concourt over the petitions but the lacunaed law because the outcome is known even before one files in their petitions by the operation of law.
Therefore, election petitions, though a constitutional right, are proving to be just an academic forum shopping expeditions in Zambia.
They are just a waste of time, resources and energies and just raises unnecessary anxieties to the petitioners and petitioned.
Only lawyers seem to gain out of these petitions at the end of the exercise as they are paid for representing their clients-petitioners or petitioned-whether they win or lose the petitions.
Only petitions based on academic qualifications have a high rate of success not petitions based on violence, corruption and other electoral malpractice.
Let us wait for those electoral petitions and appeals based on candidates having no Grade 12 Academic Qualifications.
The rate of success in these type of petitions may be guaranteed both at HIGH Court and Constitutional Court levels.
I submit
McDonald Chipenzi