The need for an Electoral Complaints Authority

By Henry Kyambalesa 

1. Introduction

In my Press Release prior to the January 2015 presidential by-election, I urged my fellow Zambians not to vote for Mr. Hakainde Hichilema and the current Republican president, Mr. Edgar Lungu, due to a number of reasons.

First, I argued that we risked turning our country into what has been referred to in the literature as “the criminal state” if we honored any of the two candidates with the Republican presidency.

I arrived at this conclusion following Mr. Rupiah Banda’s revelation that both Mr. Lungu and Mr. Hichilema had offered to discontinue his court cases in exchange for his support.

By definition, “the criminal state” is a nation-state where the government is oblivious to crimes committed by government leaders and the elite, where individuals with criminal records are appointed to positions of au-thority, and/or where government leaders and the elite are engaged in criminal activities, such as corruption, money laundering, drug trafficking, and/or human trafficking.

Second, they failed to prevent the riff-raffs among their supporters from engaging in politically motivated violence. Third, the two political lead-ers’ were endorsed by chieftains from their respective provinces, which was likely to foster tribalism and regionalism and potentially lead to the disintegration of our Motherland.

Fourth, they accepted the endorsements and/or financial contributions of citizens who were alleged to have been involved in corrupt activities, and/or individuals whose election to the National Assembly was nullified due to electoral malpractices.

Fifth, their sources of campaign funds could not easily be established, raising fears that they could easily mortgage our beloved country to individuals, companies, or countries with shady interests. And sixth, that they were not likely to adopt and institutionalize transparency and the rule of law as important elements of good governance, as demonstrated by their arrogance in dealing with issues related to these elements.

Ultimately, I urged my fellow citizens to vote for Dr. Nevers Mumba, Brig.-General Godfrey Miyanda, Ms. Edith Nawakwi, or any other credible candidate of their choice.

Well, the people have given the mandate to Mr. Lungu and the Patriotic Front to form the new Zambian government! My sincere congratulations to them!

2. Mr. Hichilema’s Claims

UPND President Hakainde Hichilema, the runner-up to President Lungu in the January 2015 presidential by-election, has claimed that his party has the names of all Electoral Commission of Zambia (ECZ) officials who allegedly conspired with the ruling Patriotic Front to steal his votes in the just-ended presidential election.

Such claims should not be brushed aside as mere and typical lamentations of a candidate who has lost an election. We should instead seriously consider the prospect of establishing a separate governmental watchdog designed to monitor the activities of officers of the ECZ, and the conduct of all elections for public office in the country.

Such a watchdog can hopefully lessen the perceived vulnerability of the ECZ and the electoral process to the influences, manipulation, and/or machinations of unscrupulous politicians and political parties. Suggestively, the watchdog should be referred to as the “Electoral Complaints Authority of Zambia” or “ECAZ.”

In the ensuing section, I have described the current functions of the ECZ and what should constitute the functions of the proposed “ECAZ.”

3. Electoral Commission of Zambia

The ECZ was established by Arti¬cle 76 of the Constitution of Zambia, which pro¬vides for the promul¬ga¬tion of legisla¬tion to deter¬mine the com-posi¬tion and opera¬tions of the Commi¬ssion as per the Electoral Commis-sion Act of 1996.

The constitu¬tionally mandated functions of the Com¬mis¬sion are as fol-lows: (a) to supervise the registra¬tion of voters and review the voters’ regis¬ters; (b) to conduct the Presiden¬tial and National As¬sem¬bly Elections; and (c) to review the boundaries of the Cons¬titu¬encies into which Zambia is divided for the purposes of elec¬tions.

In addition to these constitutional functions, the Com¬mission is man¬dated to perform the following statutory funct¬ions: (a) to super¬vise referen-dums as provided for by the Refer¬endum Act; (b) to conduct and super-vise local govern¬ment elec¬tions as provi¬ded for by the Local Govern¬ment Elec¬tions Act; and (c) to formu¬late and revi¬ew general electoral regu-lations and per¬form any other statutory func¬tion which the Nati¬on¬al Assem¬bly may assign to it.

4. “Electoral Complaints Authority”

The ECAZ should assume some of the functions of ECZ stipulated in Article 91 of the 2010 Draft Constitution prepared by the National Constitutional Conference (NCC).

Article 83 of the 2012 Draft Constitution and Article 261 of the current draft constitution should also be expanded to include some of the specific functions of the ECZ stipulated in Article 91 of the NCC 2010 Draft Constitution.

These functions should be designated as a separate Article in the envis-aged Republican constitution, and should be paraphrased as follows:

(1) The “Electoral Complaints Authority of Zambia” will consider and determine all issues and matters of malpractices relating to the ECZ and/or its officers occurring before, during and after elections or referenda.

(2) It will also determine all electoral disputes and issues of malpractices, occurring before or during an election, within twenty-four hours of receiving a complaint with regard to the dispute or malpractice and will have the discretion to make an order –

(a) Prohibiting a person or political party from doing any act pro-scribed by or under an Act of Parliament;

(b) Excluding a person or any agent of a person or any candidate or agent of a political party from entering a polling station;

(c) Reducing or increasing the number of votes cast in favor of a candidate after a recount;

(d) Disqualifying the candidature of any person;

(e) That the votes cast at a particular polling station do not tally in whole or in part;

(f) For filing a complaint and making a report to a court or tribunal handling any electoral petition; or

(g) Cancelling an election or election result and calling for a fresh election, where the electoral malpractice is of a nature that would affect the final electoral results.

(3) A decision of the “Electoral Complaints Authority of Zambia” on any matter referred to in Clause (2) will be final only for purposes of proceeding with the elections.

(4) Any complaints connected to an election that will be raised after an election will be dealt with under an election petition by an electoral tribunal.

Articles 113 through 116 of the Mung’omba Draft Constitution could be amended to incorporate the “Electoral Complaints Authority of Zambia”, except Article 113(3)(b), which, for the purposes of the suggested Authority, could read as follows: “forwarding the names of the short-listed candidates for appointment to a Committee on Elections for ratification.”

(A “Committee on Elections” would need to be created to expand the number of Portfolio Committees of Parliament.)

So, in making the appointments of the members of the ECZ, the Appointments Committee (recommended by the CRC) should forward the names of short-listed candidates for appointment to the President for ratification or confirmation.

On the other hand, the Appointments Committee should forward the names of short-listed candidates for appointment to the “Electoral Complaints Authority of Zambia” to a “Committee on Elections” for ratification or confirmation.
The author, Mr. Henry Kyambalesa, is a Zambian academic currently living in the City and County of Denver in the State of Colorado, USA. He is the Interim President of the Agenda for Change (AfC) Party.