By Prof. MicheloHansungule
The Electoral Commission of Zambia (amendment bill) 2019 published last week is the latest indication that PF is once again bent on rigging the forthcoming 2021 elections. It is common cause that elections in Africa are not determined at the ballot box. As we have seen recently in our troubled neighbouring country, the DRC, the ballot, register and the box mean nothing. Young Joseph Kabila has taught us how it is done regardless of the clear outcome of the result? Two of the judges who sat in the DRC Constitutional Court including the one who read out the ‘judgment’ are my LLD students hence I know exactly what transpired?
More or less similar experience at our southern neighbours, Zimbabwe. Despite his many years of experience on the bench, nevertheless, Chief Justice Malaba who presided over the election petition in the Constitutional Court just like in the 2016 Zambian case refused to look at the evidence marshalled by the petitioners let alone the merits of the case. Given he is not gong for a second term as CJ as he is barred by the constitution, it is beyond anyone’s imagination why Malabachose not to keep to the law in a case where the winner did so by a thread? Virtually proof of any allegation petitioners had raised would have resulted in a different outcome.
In Zambia, the so-called amendments add no value to electoral justice and I hope opposition would see this? Reforms in the Electoral Commission is not about clarifying grade twelve or even degree holders as the ones qualifying to serve as members of the Commission. In any case, did the PF previously appoint people that had never been to school as commissioners? I wouldn’t be surprised. Why are they emphasising grade 12 certificate holders as minimum qualifying certificate for commission appointment? Of what value will this add to the Zambian political environment? Is the Commission now gong to be more effective now that we shall have grade 12s?
Not even degree holders on the Commission is bound to improve its performance. The issue is that often people selected for appointment to these bodies are the problem, degrees notwithstanding. Take the current team led by Judge Mumba, how impartial is Judge Mumba? The way he and other Commissioners were selected who knows the overriding facto or consideration behind their choice? Completely without any modicum of transparency. In these circumstances, even if Justice Mumba were to blink while announcing the winner, would he announce HH, for instance, or any other opposition leader? Emily Sikazwe, how was se chosen and who does not know who she is? Can Emily be considered ‘independent’ to PF perhaps only in fool’s paradise?
The African Court on Human and Peoples’ Rights in the case of APDH v. Republic of Cote d’Ivoire (App. No. 001/2014) clarified that to attain the minimum threshold of‘independence’ in the electoral body, the head of state and other state officials should refrain from appointing personal representatives on the body. In that case, the president of the republic and the president of the national assembly according to law were allowed to have personal representatives in the electoral body. The Court found that this violated the right to equality in article 3 of the African Charter on Human and Peoples’ Rights. Zambia has not yet ratified the protocol establishing the African Court but Zambia was one of the African Union members that unanimously established the African Court. This is an example of ‘best practices’ in election management someone mentioned, was it the Minister of Information and not what they are bundling bout here and there?
The real issue that calls for amendment is Section 5 of the Electoral Commission of Zambia Act, 2016. This provides for the president in his sole discretion to recruit and appoint commissioners. This is inconsistent with democracy but more importantly unconstitutional. First, the president in this case Edgar Lungu, is one of the contenders to political office, how fair is it for one of the contenders to have the power to singlehandedly source commissioners with such extraordinary powers to make and unmake a president? This is totally wrong and opposition especially opposition represented in Parliament should take it up.
Second, the constitution in the preamble commits to uphold the principles of democracy and governance. What is this word ‘democracy’ doing here? It is precisely in order that when it comes to issues at the core of the country’s stem, democracy prevails in decision making and no one makes a decision which will disadvantage him alone. Appointment of commissioners is such an important part of our democracy and it is important that segments of society particularly political parties who have a direct stake in the elections take part in selecting commissioners. This also adds to transparency and accountability. Commissioners should not be seen to be accountable to the sole appointing authority especially where he is also a party candidate with interest of his own. Opposition should insist on reopening the bill and encapsulation section 5 hereof.
If, on the other hand, the amendments do not include overhauling the way the commissioners are appointed, forget about the 2021 elections. Leaving these powers with Edgar is equal to conceding to conceding electoral victory to the PF before elections are held. Let’s remember the DRC, Zimbabwe or even Kenya Boundaries and Electoral Commission and how the Commission failed to transmit the results to the advantage of incumbent Uhuru Kenyatta.