Fix the broken Electoral system before 2021 elections

Fix the broken Electoral system before 2021 elections

By Dr. Yobert K. Shamapande, Senior citizen

Happy 55th Anniversary Zambia and on to more prosperous years ahead.

It is a painful reality – 2021 is almost upon us whileZambia’s electoral system remains broken. And we know it, given the fiascos of the past elections including the 2016 saga. We choose to remaincomplacent and do nothing at our own peril, as another electoral crisis will undoubtedly hit us in 2021. Zambia can ill afford to ignore the electoral lessons from 2016.

It is disheartening that Zambia continues to fumbleon democracy. The country appears to be driftinginto the footsteps of the beleaguered DRC and Zimbabwe, mirroring every facet of their electoral distress, and reeling from political protests and conflicts, including the senseless violence witnessed during byelection in Sesheke. Unfortunately, as the country descends into the spiral of electoral conflictsand violence, the Electoral Commission of Zambia (ECZ), the primary custodian of the electoral processin our land, has been missing in action.

Since its inception in 1996, ECZ has not demonstrated the competence or vigilant leadershipto conduct free, fair and transparent elections acceptable to all stakeholders. In 1996, the late Frederick Chiluba’s re-election bid under the Movement for Multi-Party Democracy (MMD),became so contentious that the exercise was boycotted by then main opposition, United National Independence Party (UNIP), which objected to MMD’s constitutional maneuvers to exclude itspresidential candidate, former President KennethKaunda at the time, from the process.  The eventualdeclaration of Chiluba as victorious, was also bitterlycontested in the courts by the late Dean Mung’ombaand his Zambia Democratic Congress. In the end, however, MMD prevailed.

That conundrum has persisted. The 2001 presidential election won by the late Levy Patrick Mwanawasaalso of MMD, was equally contentious. Theopposition parties cried foul and street protests erupted, precipitating court challenges by the late Anderson Mazoka of UPND, the late ChristonTembo of the Forum for Democracy and Development as well as Godfrey Miyanda of the Heritage Party. But MMD prevailed once again. I recall those events vividly because I was a part of that political ecosystem and witnessed, firsthand, the faltering of our governance institutions at a crucial moment of national call.

Similar political protests took place when the late Michael Chilufya Sata disputed the 2006Mwanawasa’s re-election as well as the 2008 presidential byelection won by Rupia Banda afterMwanawasa’s tragic demise.   Even the 2011 electionwon by Sata as well as the 2015 presidential byelection that brought Edgar Lungu to power tosucceed Sata, were not without controversies. The losing candidates were still incredulous and questioned the fairness, transparency and even the credibility of those exercises as well.  

Enter the 11 August 2016 election, withunprecedented levels of chaos, acrimony, disarrayand outright misgovernance. The 2016 election, in my view, was flawed and chaotic from start to finish plagued with a poorly coordinated, disjointed voter registration process; political wrangling over the printing of ballot papers in Dubai instead of nearby and less costly South Africa; campaigns marred by political violence, intimidation and biased public media; blatant violations of press freedoms bygovernment clampdown of critical private media outlets, including The Post, Muvi Tv, Itezhi-Itezhi, Komboni radios, Watchdog;  selective enforcement of the Public Order Act to muzzle freedoms of assembly, expression, debate or dissent;  incompetence by ECZ in managing the polls, counting, securing the votes, and releasing results; coupled with unprecedented mediocrity displayed bythe judiciary in its failed efforts to mediate the presidential electoral dispute —  all smacked of the subversion of the democratic tenets, institutional incompetence and failed leadership the likes of which have never been seen in Zambia before.

While Zambians voted in droves in August 2016,their efforts were thwarted by the dysfunctional institutions of governance. A reputable international observer group, the Carter Center, put it more bluntly that “the legal and judicial processes surrounding the presidential petitions failed to meet Zambia’s national and international obligations under the Zambian constitution, the African Charter for Human and People’s Rights, and the International Covenant on Civil and Political Rights to ensure due process, a fair hearing, and effective legal remedy.” I couldn’t agree more. And similar concerns were echoed by other equally serious independent observer missions,including the European Union.

Now, here is my central argument: the 2016 election was neither free, fair nor transparent as it failed to meet the locally and internationally acceptable standards of transparency and credibility. Hence, it provoked unprecedented disputes and court battles at parliamentary and presidential levels, leading to the nullification of some Parliamentary results. I further contend, that the 2016 election also witnessed the nastiest assault on Zambia’s Constitution and the rule of law as the electoral governance institutions, including ECA and the judiciary, virtually collapsed.

I posit that contention on four underlying grounds.

First, there was the poor performance by ECZ throughout the critical stages of the 2016 election – before, during and after the vote. The process suffered from irregularities, including the allegations of vote buying or vote dumping at some of the polling stations, scare of security breach at the electoral data saver as well as undue delays and disjointed releases of final results from critically important areas like Lusaka (while votes from some remote polling stations without electricity were captured before those from urban centers) thateffectively eroded people’s confidence in the integrity of the process.

Under pressure, ECZ made a demonstrably erroneous declaration on 15 August of Edgar Lungu as the outright winner of the presidential vote, contrary to the Constitutional threshold stated under Article 101that  “The Returning Officer [the ECZ chair] shall declare the presidential candidate who receives more than fifty percent of the valid votes cast during the election as President-elect” (emphasis mine).   By ECZ’s own announced figures (and still on its web site), Edgar Lungu received 1,860,877 votes while Hakainde Hichilema polled 1,760,347 votes out of a total of 3,781,505 valid votes cast.   Simple arithmetic says that Lungu got 49.21 percent compared to Hichilema’s 46.55 percent of the validvotes cast. Numbers don’t lie. Therefore, no outright victor emerged and that should have triggered an automatic rerun by the two contestants to achieve a more just and conclusive outcome.

Second, some 85,795 so-called “rejected ballotswere simply thrown out of the process withoutproper accountability. Why deprive citizens of such a staggering level of votes in such a crucial national exercise? Who exactly was authorized to determine the “rejected ballots and by what criteria? The ECZ should not, in my judgement, have delegated a free hand to its field staff to determine and throw outballots on such a large scale. As it turned out, thetotal number of those rejected ballots far exceeded the total votes received by the seven other competing presidential candidates put together. Even morealarming, the magnitude of the rejected ballots was tantamount to disenfranchising registered voters offive Zambian constituencies, namely Luapula, Chembe, Feira, Mwandi and Mitete, combined.

How could that be democratic? How could thatpromote or encourage popular participation in national affairs, especially among the youths, when they know their votes might not count or could be discarded without accountability? In all fairness, ECZ should be able to take every measure to decipher and accommodate each voter’s intent of choice before rejecting the ballot. Otherwise, ballotrejection is a violation of the sacrosanct principle of democracy. It is therefore imperative that Zambiashould strengthen its electoral legislation in order to ensure that no one’s vote can be nullified or invalidated without proper public scrutiny or judicial review

Third, the Zambian judiciary, the final arbiter of justice in our society, also suddenly collapsed during the 2016 presidential electoral debacle. The courtsfailed to provide the expected moral leadership and clarity in the three constitutional mandates tasked tothem: 1) to swear in the Speaker of the National Assembly, as required by the Constitution, to assume executive powers as soon as the petition by Hakainde Hichilema and then running mate Geoffrey Bwalya Mwamba  challenging the presidential election, was filed in order to level the playing field for its consideration (and there was no requirement ofwaiting until the incumbent president stepped downbefore swearing in the Speaker); 2) to afford a fair hearing of the petition, as required under the Constitution, within fourteen days; and 3) to construct a final declaration, as required under the Constitution, as to who actually was the winner, the President-elect of that election.

Instead, the Constitutional Court (ConCourt)prevaricated over the presidential petition and became bogged down on a rather peripheral elementabout how to count the 14 days in which to accomplish the job. Indeed, ConCourt also fell prey to the activism of a few judges who ruled the day,while others, including its president, stood by helplessly. In the end, the ConCourt failed to “hear an election petition relating to the President-elect within fourteen days of the filing of the petition” and to declare the eventual winner of that election. To the dismay of many, on the morning of 5 September 2016, the ConCourt simply ambushed everybody, including the petitioners, in a three to two decisionto abandon the petition without hearing evidence on a technicality that 14 days had expired.  

Fundamentally, why couldn’t such experiencedjudges deploy basic time management to ensure the petition was heard and justice done within the allotted 14 days? Examples abound in the regionwhereby, under similar circumstances, the courts have acted expeditiously to rule on complex constitutional issues. Say whatever you want about Zimbabwe, but its Constitutional Court heardevidence in the presidential electoral dispute and declared Emmerson Mnangagwa as the winner over his opponent, Nelson Chamisa, within just elevendays. And say whatever you want about DRC, but at least its Constitutional Court actually heard the petition and ruled, in less than 14 days, in favor ofFelix Tshisekedi as the winner of the presidential election against the runner up, Martin Fayulu.Therefore, time, like a common human disease that perpetually inconveniences life, can and should be managed to serve the larger, compelling publicinterest. As society, we must reject the notion that time can trump the pursuit of truth and justice.

Finally, 2016 election brought to the fore the persisted dilemma about the political legitimacy ofelected leadership in the society. Political legitimacyderives from the credibility of the democratic process, which, in turn, is predicated on three underlying factors: the scrupulous adherence to the constitutional order and the rule of law; respect for the will of the people or electorate; and the losing candidate conceding defeat while congratulating and wishing the winner well in advancing the national agenda. For the loser to concede defeat, however, stakeholders must be convinced about the transparency, credibility and integrity of the electoral exercise. The United Nations and other global institutions have laid down benchmark guidelines orstandards governing elections: that it is not sufficientfor an election to be declared free and fair. To be credible, an election must be seen or perceived by all concerned to be truly free, fair and transparent. The2016 election failed to meet those important electoral norms but, instead, only tarnished the image of the country’s democratic project, leaving a crisis of confidence in our electoral governance institutions.

How did we get here? The harsh and inescapable conclusion is this: Zambia’s electoral system has been broken for decades with 2016 election only being the boiling point. Apparently, the country has not yet fully matured to embrace the politics of multipartyism, despite three decades of having commendably pioneered the democratic project in 1991 that time of renewed optimism, hope, energy, and determination about the country’s future. Further, the ECZ has all along lacked the required independence and organizational effectiveness to take charge of a credible electoral process. Rather, ECZ has been perceived to be a biased political arm of the government in power with its chairperson and commissioners appointed by the President who also serves as head of the ruling party.  Unfortunately, the courts have also not demonstrated the independent decisiveness required of the final arbiters of justice.  As a result, the ruling political parties have exploitedsuch electoral flaws, loopholes and weaknesses to prevail at all cost.  

But I remain an optimist – Zambians are capable of reforming the system. Those of my generation knowthe enduring moral fortitude our people bring to confronting challenges. Zambia may be viewed as a relatively small nation, but it is a driven giant at heart. We have shouldered heavier burdens over the past fifty-five yearsour gallant elders sufferedthrough the odyssey of the independence struggle, while launching a frontal attack against the intransigent elements of poverty, disease, ignorance;we have gone through the struggles against apartheid colonialism and foreign domination of Southern Africa; Zambians have fought against one-part dictatorship and launched the democratic experiment we have today three decades ago. Fellow Zambians, yes, we can.  With that same zeal and moral fortitude, we can transform the country’s democratic institutions and electoral culture to restore the better Zambia we all aspire for and can be proud of.

So, how do we do that, going forward? Theconstitutional talks going on in Parliament, at the moment, should focus on the larger conversationabout fixing the current electoral system in order to preserve the democratic project. As a starting point, let us address the three areas of critical impact on elections, that is, reforming the ECZ, enhancing voter education in the democratic environment, andstreamlining the judicial institutions, especially the ConCourt, charged with handling electoral issues.

1). Reform the Electoral Commission of Zambia.  ECZ needs to be revamped; I call for revamping,because as presently constituted, ECZ is not readily reformable or improvable through incremental measures to effectively deliver on its national mandate. Granted, the newly appointed ECZ Chief Officer, Patrick Nshindano, has promised to introduce some technological innovations here and there to enhance the ECZ performance. However, we should insist for real reforms to entail much deeper restructuring. The current ECZ has lacked theindependence, neutrality, objectivity, requisite skillsets or the professional, organizational competence toconduct free, fair and credible national electionsacceptable to all stakeholders. Let us replace it with a new, truly independent, impartial, more representative and robust electoral authority similar to those prevailing elsewhere in the region for it to undertake this crucial national task.  

Therefore, I suggest designating the new ECZ as the Independent Electoral Commission of Zambia(IECZ) to distinguish its elevated, robust stature from the present body.  The parameters of such reforms should center on four underlying principles a) IECZ must be completely independent, impartial and neutral, separate from the influences of government or any political authorities, while answerable only to the Zambian electorate and the rule of law; b) it mustbe more broadly representative in its composition, by drawing from a cross-section of the Zambian society, including from civil society organizations such as NGOs, religious institutions, labor unions, institutions of higher learning as well as from the farming communities, but without government representation; c) the chairperson of IECZ must be elected from amongst its members, not appointed by government or any political authority; and, d) IECZmust be more robust and authoritative in the performance of its electoral functions – meaning the new IECZ should be underpinned by a strong and enforceable legal framework, together with the ethical code of conduct, regulations, rules and procedures as well as be complemented with top-notch professional capacity, skill sets and expertise the guard rails of an effective democratic process — to enforce and regulate the electoral conduct so as to guarantee free, fair, transparent and credible elections.

Further, IECZ should strive to serve as a neutral referee, to evenhandedly ensure a level playing field in matters of resource flows to political contestantswhile, in particular, prohibiting the abuse of public resources — funds, vehicles, public media etc. – by the party in government. By extension, all contesting political parties in an election should be required to disclose their sources of funding to public scrutiny to ensure transparency.  To enhance its independence, IECZ should operate on its own budget directly appropriated by Parliament and separate from any government department or entity.

Only then, I believe, will Zambia begin to conduct elections that can fulfill the aspirations and the will of its people.

On a personal note – I have spent four decades ofprofessional involvement in the broader international arena, interacting at various levels with democratic institutions and electoral authorities. From my United Nations vantage point, I focused, for a decade, on the efforts for the decolonization of Namibia and thebuilding of its institutional capacity to promote the democratic order. Throughout, I have seen the workings of electoral governance bodies in Namibia, South Africa, Botswana and, as far afield as, East Timor. They have discharged their responsibilities with patriotic zeal, professionalism and credibility.  Are they perfect? Not at all; far from it. They have weaknesses and limitations as well.  But to the larger point: those electoral authorities have conductedelections consistently rated as reflecting the will of their people and meeting internationally accepted standards of transparency, credibility and integrity. The losers under those elections have readilyaccepted the verdicts of the electorate, without resorting to protests, disputes or routinely flocking to the courts to settle political grievances. Thus, the old dictum holds here that in a democracy, the votersand not the courts, are the final arbiters of political contests. And by conceding defeat, the losers thereby confer political legitimacy on the victors to press forward with the business of nation building.  

2. Strengthen civics educational component in theelectoral systems. We must expand and enhance civics education in Zambia (not Chinese language!)at formal schools and informal learning levels tosensitize the voters about the intricacies of our democratic processes, including elections. It is said that illiteracy, ignorance and abject poverty amongst voters, are fatal to democratic engagements because they form the bedrock of many social vices such as electoral corruption, ballot manipulation, vote buying, improper voting, voter apathy, political violence, as well as the scourge of tribal politics or regionalism. Civics interventions should entail strong formal programming at upper primary and secondary school levels as well as through informal educational outreach activities in the form of seminars,workshops and conferences, targeting voting agegroups especially in the rural areas. Such expandededucation should also focus on instilling a new sense of patriotism, especially in the young people, and developing a culture of political coexistence, civic engagement and awareness about the critical issues facing the societythe mitigation of political intolerance, political violence, while promoting issuebased campaigns, proper candidate assessment,and the importance of the vote to national development.

I believe IECZ should also play a central role in these efforts. Zambian elections occur at five-year intervals, and therefore, IECZ should use the recess periods to engage in continuous preparation, voter registration and voter educational outreach atprovincial, district and constituency levels.        

In the final analysis, education is the single most portent tool to guarantee democracy as a vibrantcitizen involvement in national affairs. It also ensures the expansion of social progress in the society as enlightened, informed ordinary citizens demand and gain access to better opportunities and social benefitsto live a decent human life, free from abject povertyand deprivation. Fundamentally, this is where elections, public policy, and social progress intersect. A free and fair election is the only honest democratic tool that would empower enlightened ordinary Zambians to freely and fairly choose equally enlightened leadership to champion their causes, rights, goals and aspirations. In this way, ordinary people would find expression to alleviate poverty through access to opportunities, including productive employment, nutrition, better education, primary health care, decent housing, clean water, proper sanitation, social safety nets and others.

3. Streamline the judiciary, particularly the Constitutional Court.  Ordinarily, Zambians shouldlook to their courts of law as the most trusted, truly independent, impartial and fearless pillars of democracy and justice in our society to stand as the paragons of ethical virtue and stability when called upon to do so.  But the performance of the ConCourtin the 2016 presidential electoral dispute, undermined that sacred trust. Rather than stand resolutely in defence of the constitutional, democratic order and the rule of law, the courtsreflected a troubling combination of intellectual timidity and incompetence.  

How then do we remedy these institutional deficiencies? As to the scope and mechanics of such reforms, I leave them to the legal professionals with expertise in this critical area. However, it is imperative as society to firmly insist on thorough transformation of the judiciary to reflect theunderlying values, professionalism, competence and integrity expected of it. Meaning, whatever reforms to be undertaken, must go to the heart of three critical concerns a) to stipulate the minimum standards of qualifications required and the levels of expectedprofessional competencies for judges or judicial officers sitting on the ConCourt; b) to ensure complete independence of the judiciary from political interference, especially from the executive as the appointing authority; and c) to guaranteesecurity of employment tenure necessary to enable such judges or judicial officers to exercise their responsibilities freely, impartially and fearlessly withutmost integrity.

Here, I share the concerns expressed by many legal professionals, including Professors Muna Ndulo andMichelo Hansungule as well as attorney John Sangwa and others, who have vociferously advocated for a better, independent and more competent Zambian judiciary, especially with respect to theConCourt. More specifically, John Sangwa had eloquently raised significant issues about the qualifications and appointments to the ConCourt just prior to the 2016 election. He had argued and warned, rather prophetically, that “unless [the Constitutional Court] is property constituted by having qualified persons appointed, it might do more harm than good to the country.” The ConCourt,indeed, did more harm than good in 2016, when on September 5, it basically abdicated its responsibility by abandoning the presidential petition without considering evidence or its merits.

Going forward, we need to have confidence in theZambian legal professionals who, if called upon to assist, should be able to energetically construct lasting remedies to our failed electoral system. They should be able to draw on their experiences and perspectives from evidence-based best practices in the region, the African continent and elsewhere to design an accountable and transparent electoral system.  

Ultimately, I believe, the stakes couldn’t be higherso high that it is now a matter of a compelling national urgency to fix the country’s electoral system before 2021, because that election could well determine the future direction of Zambia’s social progress – whether to move forward or retrogress into obscurity. The investor community at local and international levels as well as the rating agencies will closely scrutinize the integrity of that vote as to political stability or promise it engenders. If Zambianelections, however, continue to degenerate into endless political crises, the country risks driftingirreversibly into the ruinous paths of DRC and Zimbabwe.  

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