MISAPPLICATION OF LAW AND CONSTITUTIONAL OVERSIGHT: A RESPECTFUL REBUTTAL TO ECZ’S REGALIA RESPONSE

MISAPPLICATION OF LAW AND CONSTITUTIONAL OVERSIGHT: A RESPECTFUL REBUTTAL TO ECZ’S REGALIA RESPONSE

The recent response from the Electoral Commission of Zambia (ECZ) to my earlier critique regrettably fails to address the legal and constitutional concerns I raised regarding the pronouncement banning allied party regalia in by-elections. While I welcome clarification and institutional engagement, the Commission’s statement reflects a selective reading of the law and falls short of justifying its actions within the framework of Zambia’s constitutional democracy.

The Commission hinges its justification on Sections 2, 29(3)–(4), and 89(1)(n) of the Electoral Process Act No. 35 of 2016. However, none of these provisions substantively support the ban on wearing regalia by allied but non-participating political parties. Section 2 merely defines “campaign material,” including T-shirts and cloth  and  political party symbols among others. Section 29(3) permits the publication and distribution of such material as “may be prescribed,” but it does not in itself prescribe any prohibition. Critically, there is no corresponding Statutory Instrument or Regulation issued to formalize the ban, making the Commission’s directive legally unenforceable.

Furthermore, Section 89(1)(n) prohibits the use or association with symbols of a candidate other than their registered symbol during the course of an election, and it specifically applies to candidates and their symbols. It does not extend to the general public or to allied parties that are not contesting the election. Moreover, it does not prohibit items such as T-shirts and cloth, which, according to the definition of campaign materials in Section 2 of the Act, are distinct forms of expression. The Electoral Commission of Zambia’s (ECZ) conflation of party symbols with all forms of campaign materials—such as regalia like T-shirts and cloth—constitutes a misinterpretation and, ultimately, a misapplication of the law.

More seriously, the Commission’s reference to a potential prison sentence of up to two years lacks a clear legal basis, apart from Regulation 10(3) of the Electoral Code of Conduct, which limits penalties to a maximum of one year for violations of its provisions. Misstating the legal penalty in this manner amounts to a clear misrepresentation of the law and undermines both public confidence and the credibility of the ECZ’s communications.

On constitutional grounds, the ECZ’s attempt to justify the directive by citing limitations under public order or safety cannot override Article 21 of the Constitution, which guarantees freedom of association and political expression. These rights cannot be curtailed by subsidiary legislation or administrative directives, certainly not without compelling justification and due legislative process. To suggest otherwise is to subordinate the Constitution to an inferior law, which defies both logic and legal hierarchy.

Moreover, the ECZ Chairperson does not have the authority to interpret constitutional provisions in a manner that justifies circumventing fundamental rights. That role is reserved for the Judiciary. Her attempt to construe constitutional limitations to support the directive borders on overreach and violates the principle of separation of powers.

The Commission’s reference to past practice (such as its 2021 advisory to independent candidates) does not establish legal precedent. What is at stake here is not just electoral order but the rule of law, constitutional supremacy, and institutional credibility. Dismissing legitimate legal arguments as “baseless” or “misguided” is unfortunate and evades the duty of accountability that public institutions owe to the citizens they serve.

Therefore, because the commission has not addressed the relevant legal concerns I presented, I continue to assert that the Chairperson should resign due to moral imperatives.

While the ECZ’s responsibility to ensure orderly elections is understood, this cannot come at the cost of legality and constitutional rights. Zambia’s democracy must be protected not just at the ballot box, but in every action and pronouncement of the institutions tasked with safeguarding it.

I urge the ECZ to reconsider its position, clarify its legal basis through proper instruments, and engage in dialogue rather than dismissiveness. Upholding the rule of law is not optional, it is the cornerstone of our Republic.

Sensio Banda
Former Member of Parliament,
Kasenengwa Constituency
Eastern  Province