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 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 lodgement but the High Court or tribunal decisions are appealable in the constitutional Court
So far, many of these petitions have been discharged at high Court or tribunal level in favour of the winning candidates and most likely the remaining will go the same way.
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 in Zambia being successful as it is not possible to prove any candidate’s involvement in electoral irregularities and malpractices.
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 is key to future successful election petitions and also for rooting out electoral corruption, malpractices and illegalities in the electoral process.
As it stands now, one cannot blame the judges because the outcome is known even before one files in their petitions by the operation of law.
In this regard, elections petitions, though a constitutional right, are proving to be just academic forum shopping expeditions.
They are just a waste of time, resources and energies and just raises unnecessary anxieties to the petitioners and petitioned.
I submit
McDonald Chipenzi