Why the Kasonde Petition Would Struggle to Move the Needle
At the centre of the 60-page petition allegedly drawn by Linda Kasonde, Brebner Changala and the LCK Freedom Foundation sits an admission that quietly undercuts the entire case: the Christian Churches Monitoring Group’s own parallel vote tabulation, the petitioners’ principal evidentiary anchor, found that Hakainde Hichilema still won, and won with more than the constitutionally required 50% of the vote. CCMG estimated his share at roughly 56%, against the Electoral Commission of Zambia’s declared 60.5%. Different numbers, same result.
That single fact is the fault line running through the whole petition, and it is why, if this document is treated on its own terms, it reads less like a case that could plausibly unseat a presidential result and more like an academic exercise in cataloguing imperfections.
The legal bar is not “was it messy” but “did it change the outcome”
Zambian courts have been remarkably consistent on what it takes to nullify an election. The standard of proof is higher than the ordinary civil balance of probabilities, described by the Supreme Court in Mabenga v Wina as requiring “a fairly high degree of convincing clarity”, though it stops short of the criminal standard of beyond reasonable doubt (Mabenga v Wina & Others, ZMSC 75 of 2003). The Judiciary of Zambia’s own guidance on presidential election disputes confirms this is the operative test under Article 101.
Layered on top of that evidentiary threshold is the “substantial effect” rule, applied consistently across Zambian and regional jurisprudence: courts do not nullify elections for irregularities that are real but immaterial to the result. As the Constitutional Court of Zimbabwe put it in language Zambian courts have echoed, “elections should not be nullified for minor irregularities or infractions of rules… provided that, overall, the fairness of the election was not vitiated”. Zambian academic analysis of the equivalent statutory test under the Electoral Process Act draws the same line: a petitioner must show malpractice on a scale sufficient to have actually prevented the majority of voters from electing their preferred candidate, not simply that anomalies existed somewhere in the system.
This is precisely where the petition’s own evidence turns against it. A petition built on CCMG’s numbers cannot simultaneously rely on CCMG as the authoritative independent check on the process and disregard CCMG’s bottom line; that the discrepancies it flagged, whatever their cause, did not dislodge Hichilema from a first-round majority.
A turnout gap is not a result gap
The petition makes much of the roughly four-point difference between CCMG’s estimated national turnout (about 53.5%) and the ECZ’s official figure (57.23%), and of roughly 30 constituencies where turnout allegedly exceeded CCMG’s statistically plausible range. But a parallel vote tabulation is a sample-based statistical estimate with a margin of error, not a ballot-by-ballot recount; variance between it and a full count is expected, and the petition itself frames the anomalies as things requiring “further investigation,” not things CCMG concluded had actually changed the outcome. Flagging a handful of constituencies as statistically unusual is a legitimate transparency concern for the ECZ to answer. It is a different thing entirely from proving, to a fairly high degree of convincing clarity, that the irregularity was large enough and connected enough to Hichilema’s own conduct or knowledge to have flipped the national result; which is what Article 101 and settled case law actually demand.
Process complaints, not result complaints
Several of the petition’s ten grounds; the suspension of counting on 14 August, the deployment of the Defence Force at polling stations and the National Results Centre, the recording of national registration numbers on ballots, the unequal application of the Public Order Act; describe a genuinely troubling electoral environment. These are the kinds of complaints that matter enormously for electoral reform, and they may well justify the alternative relief the petitioners seek: publication of polling-station records, recounts in specific constituencies, and declaratory findings on the legality of the ECZ’s conduct.
But nullifying a presidential election requires more than proving the environment was imperfect or even unlawful in places. It requires a demonstrated causal link between the specific defect and enough votes to have altered who crossed the 50% threshold. Zambian courts, including in the line of cases from Mutantika v Chipungu through the more recent 2022 Constitutional Court authorities, have repeatedly required petitioners to connect irregularities to the candidate and to quantify their effect on the outcome — general atmosphere, however genuinely concerning, is not treated as self-proving of a changed result.
Why “academic exercise” is the right description
None of this means the underlying grievances are frivolous as matters of democratic accountability; they may generate real findings on process, real embarrassment for the ECZ, and real pressure for legislative reform of the kind Kasonde herself has signalled she will now pursue outside the courtroom. But as a vehicle for actually nullifying Hichilema’s election, the petition asks the Constitutional Court to do something no election-petition jurisprudence in Zambia supports: overturn a result that the petitioners’ own chosen independent authority says was not, in fact, overturned by the alleged irregularities.
Put simply, the petitioners have built a rigorous case for why the process should have been cleaner; and then attached to it a request for a remedy (nullification, or a fresh election) that only follows from proof the process changed the winner. Since the petitioners’ own primary source of proof says the winner did not change, the gap between the grounds pleaded and the relief sought is exactly the gap that makes the exercise academic: a comprehensive audit of everything that went wrong, in service of a conclusion the evidence does not, on its own terms, support.
George N Mtonga