Judicial Accountabilty

JUDICIAL ACCOUNTABILITY

By Rodger M.A. Chongwe, S.C.

01.05.08

General Observations

Article 91(2) of the current Zambian constitution provides that

“The judges, members, magistrates and justices, as the case may be, of the courts….shall be independent, impartial and subject only to this constitution and the law and shall conduct themselves in accordance with a code of conduct promulgated by Parliament.”

A Code of Conduct for judicial officers has already been enacted into law in answer to this provision of the Constitution.

Judicial independence as articulated in the constitution, though necessary and desirable, has its downside: judges who do not have to “answer” to anyone for their conduct or decisions may pursue self-serving agendas and become lords unto themselves.

Thus judicial independence must not be pursued to a point where judges become totally unaccountable for their actions. In short, judicial independence must be balanced with an appropriate measure of judicial accountability.

In a representative democracy, the primary method by which public officers are made to account for their official conduct is by making them (or their responsible superiors) submit periodically to a public vote of confidence (i.e. through elections).

But the electoral test, though desirable for the executive and the legislature, is generally inappropriate for judges. Elections necessarily imply politicking and with politicking comes partisanship. Therefore, to put judges through periodic elections will be to inject partisan politics directly into the judicial arena.

Moreover selection of judges by popular elections would, in my view, undermine the judiciary’s role as a protector of the rights of minorities, because in order to win or retain their offices elected judges may have to pander to the wishes of the majority – which, in some cases, will mean betraying the legitimate interests and rights of the minority.

For these reasons most democracies (although in some of the States of the United States of America judges submit themselves to elections periodically) do not extend the requirement of periodic elections to the bench. Our constitution similarly gives our judges electoral immunity by providing for the selection of judges by appointment, rather than by elections.

Another mechanism by which public officers may be held to account for their actions is by granting members of the public, right to bring legal proceedings against public officers (or the government) for negligent or intentional breaches of their official duties. Here too in most commonwealth countries judges are granted constitutional immunity.

The 1992 constitution of Ghana Article 127(3), provides that a judge cannot be sued or held legally liable for errors or omissions made by him in exercise of his judicial power.

Like electoral immunity, judicial immunity from such legal liability is designed to promote greater judicial independence by ensuring that judges go about their work without fear of inciting litigation upon themselves. Immunity from law suits does not, however, preclude actions for mandamus to compel a judge to perform a mandatory duty or for prohibition to prevent a judge from acting without authority. Moreover a decision of a lower court can usually be appealed to and reviewed by the court above it.

Only infrequently issued, but also decisions of the court of last resort, even if still erroneous, are final and unreviewable. In short, while the supervisory and appellate jurisdiction of higher courts can be invoked to obtain some review of the conduct of the judges below, there are clear limits to the use of these intra-judicial avenues for holding judges accountable.

Judicial immunity under the constitutions of some of the Commonwealth countries is limited to what is necessary for the proper discharge of the judicial function.

Notably there is no constitutional provision purporting to give judges immunity from public or media criticism in respect of their official conduct.

Judicial accountability must not be regarded as a task to be borne solely by a particular segment or interest group in society. The fair and impartial administration of justice is like good government, a public good, because everyone, without exception, benefits when judges act fairly and impartially in the adjudication of cases.

Therefore making sure that judges exercise their power fairly, impartially, and independently of extraneous influences must be regarded as a civic duty of every member of society.

Judicial accountability is not, however, simply a matter of the citizen’s duty. It is also arguably a right of everyone directly affected by the decisions of the courts. Any person with a direct stake in the conduct and outcome of judicial proceedings clearly has “standing” (generally speaking) to check or challenge abuses of judicial power.

Among such stakeholders are –

• the parties to a case (who, legally speaking, are the ones primarily bound by the decisions of the court),
• lawyers (who must appear before the courts professionally to represent their clients),
• and the general public, which not only pays the taxes to support the judiciary but must, above all, individually conduct their lives in accordance with the laws as laid down by the courts.

Parties to the case

Parties to the case being the ones whose rights and interests are most directly at stake in judicial proceedings and will most directly be affected or altered by the outcome, the parties to a case are foremost among those entitled to a fair and impartial exercise of judicial power. From the perspective of the parties, such fairness and impartiality must extend to the conduct as well as the outcome of the judicial proceedings.

Judicial accountability in the conduct of the proceedings implies:-

1.. Openness or transparency in the judicial proceedings, so that third parties can observe and bear witness to the conduct of the proceedings.

2.. Transparency also requires that the proceedings be contemporaneously recorded, which record (i.e. the transcript of the proceedings) must be available for verification by the parties

3.. Each of the parties must be afforded a fair hearing: that is, each party must, at a minimum, have an opportunity to present his case, to hear the other side’s story, to rebut the other’s allegations and to cross-examine the other’s witnesses.

4.. The proceedings must be conducted by a neutral judge who must have no personal interest or stake in the outcome of the case. Taken together, these conditions – transparency, fair hearing and a neutral judge constitute the minimum standards necessary to ensure that judicial proceedings afford each party due process of law

5.. The parties expect that the court’s decision will be reached on the basis of the evidence and in line with applicable precedents.

In order to make certain that judicial decisions are true to both the facts and the law in the case, parties expect judges to provide detailed reasons for their decisions.

The role of the Legal Profession

The stake that lawyers have in judicial accountability is derivative of the rights of their clients to a fair and impartial adjudication of their case. A party’s ability to receive fair and impartial treatment from the bench often depends on the quality of representation provided by Counsel. Proper and dutiful representation by Counsel is indispensable to making judges accountable to the parties in a case.

Lawyers as a group are concerned about the independence and accountability of the judiciary for the following reasons:-

1.. What the courts do must matter to lawyers because a widespread public distrust of the courts (due to a perception of bias, for example) will diminish public resort to the judicial system and, in turn, decrease the demand for lawyers’ services.

2.. Judicial behavior and decisions, if they turn on considerations other than the merits of the case, will adversely affect the quality of lawyer-ing, because a lawyer’s success in court will then depend less on his/her skill or competence and more on the biases or prejudices of the judge. Thus a biased or corrupt judiciary will invariably undermine both the economic prospects and the professionalism of the bar at large.

3.. The law is the practicing lawyer’s stock-in-trade. The practicing lawyer is entitled to know with sufficient certainty and predictability what the law is at a given point in time, so that he /she can properly counsel his/her clients or make appropriate representations on their behalf. Since it is judges who ultimately must determine what the law is, it is natural to expect the practicing lawyer to take a deep interest in judicial conduct and decisions. Judges owe to lawyers, as they do to the parties in a case, a duty to provide detailed reasons and analysis to support their decisions. Only then can lawyers determine whether such decisions are consistent with established precedents

The role of the Public in judicial accountability

Other constitutions of commonwealth countries require the judiciary to be accountable to the people the same way as the Legislature is directly accountable to the electorate and the Executive is accountable to the electorate through the legislature.

Article 125(1) of the constitution of Ghana provides that:

“Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary………”

The public have a right to demand accountability from one of the most important public institutions of all, the judiciary. As I have already pointed out in this article it is the public that provides resources with which the judiciary functions, and it is to the same public that the courts’ decisions are ultimately addressed.

The judiciary also ultimately derives its legitimacy from un-coerced public acceptance of the decisions of the courts, and from widespread public belief in the idealized view of judges as fair and impartial. 

Endemic Zambian Election Rigging

The following is an article I wrote in response to the pseudo-democratic 2001 Zambian national elections.

This article is  posted in response to the many calls for validation of my observations that election rigging has plagued Zambia for many years.

It is paramount that more is done at State-level to address our flawed electoral processes, to revise the Constitution's bias for the party in power, and to bring fair and proportional representation to our people.



The December 27th 2001 Zambian National Elections

Introduction

Zambia is a former British protectorate. It became an independent state on the 24^th of October 1964. Seven presidential and parliamentary elections have been held since. The election of 27^th December 2001 was the eighth. Apart from the election of 1996, previous elections have raised few significant controversies.

Prior to the election of the 1996 government of Mr. Frederick Chiluba (which had been elected into office on October 1991) it was decided to amend the Constitution. That Constitution was enacted in August 1991. It reintroduced political pluralism after 17 years of a single-party system. In 1973 the government of Mr. Kenneth Kaunda had introduced the single party system. 

Significant Features Introduced by the Constitution of Zambia Amendment Act, 1996:

• To qualify as a candidate for the Office of President, one must not only be a Zambian citizen but also both his/her parents must be Zambian by birth or descent. [1]
•  The candidate must have been domiciled in Zambia for a period of at least 20 years.
• A candidate who receives the highest number of votes cast must be declared duly elected. [3] This removed a requirement that the presidential candidate must secure more than 50% of the votes cast for him or her to be declared duly elected. The Constitutions of 1964, 1973 and 1991 had contained this requirement.
• The candidate declared duly elected must be sworn in and assume office immediately. If there is a delay this should not be for more than twenty-four hours after the announcement. [4]
• The person who has held Office of President shall immediately hand over the Office of President to the person declared duly elected as President. However the procedural and administrative and handing over process shall be done within fourteen days from the date the person declared duly elected is sworn in as President. [5]
• The Chief Justice is the Returning Officer for the purpose of a presidential election. [6]
• Any question relating to the election of President or relating to the validity of the election of the Office of President shall be referred to and determined by the full bench of the Supreme Court. [7] (Note that the Chief Justice is the presiding justice of the full bench of the Zambian Supreme Court)
• Any petition concerning the validity of the election of a candidate declared duly elected to the Office of President shall be lodged 14 days after that person has been sworn in as President. [8]
• A traditional Chief shall not be qualified for election as a member of the National Assembly. [9]

Opposition to the Amendments

Opposition politicians, traditional Chiefs, civil society and mainstream church groups resisted the above amendments to the Constitution. The government of Mr. Chiluba, however, went ahead with the amendments. They had a very large majority in the National Assembly.

Attempts were made to fight these and several other amendments to the Constitution in courts. Those attempts also failed. The courts had become compromised. [10]

In addition to the constitutional amendments, Mr. Chiluba and his colleagues had contracted an Israeli company called Nikuv Computers at an inexplicably huge cost to the country over and above other more reasonable bidders, to write a fresh register of voters with no input or supervision from the Electoral Commission. This contract was challenged in the courts. The trial judge, Commissioner Bonaventure Mutale (who later in November 1997 was appointed Attorney General), though finding for the complainants on most points, nonetheless decided in favour of government on the grounds that Zambia is a poor country and shonky through the agreement was, substantial amounts of money had already been paid to the company. [11]

The result of the 1996 elections was highly controversial. Opposition political parties petitioned against the election of Mr. Chiluba. There was no attempt then by the opposition to prevent Mr. Chiluba’s swearing in ceremony. This does not reflect on the part of the opposition parties then, that they were less enthusiastic in stopping Mr. Chiluba from assuming office. It also does not imply that they had confidence in the Zambian Supreme Court. 

They received advice from the representatives of the bilateral donors who are mostly from western European countries. The advice was for the opposition to use the courts. Although some of the diplomats were aware that the Executive had compromised the courts, they nonetheless gave similar advice to the others, hoping, one assumes that a day might come when the courts could do right. Regrettably, that day has not yet come. [12]

Although the Electoral Act limits the time within which courts hand down their decision in an election petition to three months from the date of conclusion of evidence, the Supreme Court took eight months after hearing arguments in the case, before handing down its decision. [13] By that time, the 10^th November 1998, Mr. Chiluba was into the third year of his second term. Although the Supreme Court could have nullified the poll in its findings, that did not happen.

For example, the court said that Kenneth Kaunda was qualified to stand for the Office of President. This was despite the fact that both his parents were born in Malawi. They were by statutory application Her Majesty’s protected persons residing in Northern Rhodesia. At independence, they would have been deemed Zambian citizens. 

The court also found that Mr. Chiluba bribed the electorate by dishing out houses belonging to city and municipal councils across the country for nothing in return to the councils. The court however failed to declare that this misconduct by Mr. Chiluba vitiated the electoral process. [14]

The December 2001 Elections

Article 35(2) of the Zambian Constitution states that, 

Notwithstanding anything to the contrary contained in this constitution or any other law a person who has twice been elected as President shall not be eligible for re-election to that office.

Mr. Chiluba forbade his party colleagues from campaigning for the Office of Party President throughout 1999 and 2000. The reason for this was that the party would, in good time, choose his successor from among his colleagues. 1999 came and went without this happening. 2000 came and it also went without the parting holding a Party Convention to choose a new President. The person elected as Party President would automatically be the presidential candidate in the presidential election of 2001.

According to the Constitution of the Movement for Multi-Party Democracy (MMD), three months notice of the intention to hold the Party’s Convention is required. Instead of this happening, the Party preoccupied itself holding provincial elections for provincial party leaders. Except for provincial elections that took place in Southern and Lusaka provinces, all the other provinces passed resolutions inviting Mr. Chiluba to run for president for the third term. Constitutions of both his party and that of the Republic of Zambia limited the period a person could serve as President to two terms of five years each. [15]

Mr. Chiluba arranged the Convention of his party at which it was decided to amend the Constitution so as to allow him to stand for Office of Party President for the third term. Earlier at the beginning of 1999, Mr. Chiluba created the Office of District Administrator. There are 76 districts in Zambia. The Office of District Administrator was a civil service position. However, Mr. Chiluba used this as a ploy. The District Administrators turned out to be party hacks existing for the propagation of the third term for Mr. Chiluba. The Law Association of Zambia petitioned the High Court in 2001 asking the Court to declare the Office of District Administrator a civil service office where the incumbents are prevented by the Constitution from participating in active politics. An injunction was obtained restraining these men and women from engaging in party activities openly. [16] They did not stop doing so. The Secretary of the Cabinet who is boss of the civil service failed to discipline these men and women. They were, after all, serving the Republican President. 

In July 2000, a senior Cabinet Minister, Benjamin Yoram Mwila, was sacked from his ministerial post and expelled from the party for openly campaigning for the Office of Party President. It was alleged that he was guilty of insubordination for defying the directive from the Party President forbidding campaigns for the Office of Party President before the party settled on its candidate. In April 2001, when it became apparent that the candidate for the Office of Party President was Mr. Chiluba and no-one else, 22 senior and junior ministers in his party revolted against this move. Mr. Chiluba was quick to sack all of them from the party. They were able to get together 67 members of parliament to lodge a petition for the impeachment of Mr. Chiluba. Under the Constitution, one-third of the sitting members of parliament are required for impeachment. The Zambian legislature has 158 Members of parliament – 150 of them elected directly from member constituencies and 8 of them nominated by the President. [17]

In any democratic state, the Speaker of the National Assembly would have had no alternative but to call parliament to debate the motion for the impeachment of a President. The Speaker of the Zambian legislature however, ignored the petition and refused to convene the legislature. When the legislature was eventually called, most of those members of parliament that had signed the petition for impeachment had formed or joined other parties in readiness for the 2001 elections. The legislature only sat for three days. It sat to vote large sums of money for Mr. Chiluba to pay members of his intelligence service and to meet other undisclosed constitutional expenditure.

When all this was happening, little had been done by the Electoral Commission of Zambia to prepare the country for elections. Registration of voters only started in March 2001, when rains are heavy and some parts of the country are impassable. Roads in Zambia are rarely maintained and in many rural areas are unusable for part of the year. Apart from the European Union that donated an amount of USD 7 million towards election expenses, most bilateral donors adopted a wait and see attitude. They did not want to finance an election registration exercise that would facilitate a third term for Mr. Chiluba. The government was not of much help either. It viewed all those opposed to a third term for Mr. Chiluba as enemies of Zambia and if they were foreigners; they were accused of interfering in the internal affairs of Zambia. 

Verification of the registers did not start until September 2001. Registration of voters in Zambia had always taken place one year before the election. This changed after Mr. Chiluba came into the office. There was also delay in the registration of voters for the 1996 election. Fewer people were registered for election in 1996 than was the case in 1990. Again, there were even fewer registrations in 2001 than was the case in 1996. Even accepting that the HIV/AIDs pandemic has had its toll on Zambia, the country has a lot more eligible voters than the 2.6 million that were actually registered.

The date set for the election was also puzzling. Mr. Chiluba announced the 27^th December, 2001 as the date for holding elections. [18] Since independence, the country has held its national elections in October. Only once before has this not been the case - the elections of 1996. Again, this was during the leadership of Mr. Chiluba. The elections were held on the 18^th of November, 1996.

No good reasons were given for choosing an inauspicious date, a day after Boxing Day, as the date for the election. Mr. Chiluba was out to inconvenience his fellow Zambians for reasons best known to him. The period chosen for the election was unsuitable. This is when the country’s rains are at their heaviest.

Before the elections, there were rumours that Mr. Chiluba had a team of foreigners working with some members of the Zambia Intelligence service encamped at a Zambia Electricity Supply Corporation Guest House in Siavonga on the shores of Lake Kariba. It was reported that these were preparing strategies for subverting the electoral process in favour of the ruling party.

Mr. Nganda Mwananjiti is the Executive Director of Afronet a regional human rights organisation based in Zambia, which publicises the Monitor, an independent weekly newspaper. The Monitor published an article where he is quoted confirming the existence of persons at the guesthouse, which was being guarded by armed Zambian paramilitary police for twenty four hours a day. As pointed out before, the elections of 1996 were also subverted. [19]

The date for elections was announced very late – on the 15^th of November, 2001. According to Mr. Chiluba’s spin-doctors, it was not necessary for him to tell when the elections would be held. That was a privilege that only he, as Head of State, enjoys under the Constitution. Some of these spin-doctors have been in politics in Zambia since independence, some 37 years ago. Yet, they behave as though they have just been exposed to politics. There is nothing magical about telling your country when the election will be held. Even under Mr Robert Mugabe’s Zimbabwe, the President was able to announce long before he signed the necessary statutory instrument the dates for the election. In Zambia, however, a minor thing like that was to arouse much controversy and become time consuming.

The system of election in Zambia is ‘first past the post’ – inherited from the British former colonisers. Instead of having the Prime Minister as the Executive Head of Government, the Constitution provides for an Executive President as the Head of State. He/she also discharges ceremonial functions. The election of President takes place at the same time as that of Members of Parliament. In the Zambia members’ Chamber, it is referred to as the National Assembly. It is unicameral legislature.

Result of the Poll

At the close of the poll, the MMD secured 69 seats in the National Assembly and other opposition parties, including one independent, secured a total of 81 seats. Those seats were distributed as follows: [20]  

• United Party for National Development – 49 seats
• United National Independence Party – 13 seats
• Forum for Democracy and Development – 12 seats
• Heritage Party – 4 seat
• Zambia Republican Party – 1 seat
• Patriotic Front – 1 seat
• Independent – 1 seat

In the presidential election, the candidate for the MMD secured 29% of the vote against his closest rival from the United Party for National Development (UPND), who secured 27% of the vote. Overall, the opposition political parties secured 71% of the votes cast.

The most cited reason for the loss of the election of President by the oppositional political parties is failure by the leaders of those parties to close their ranks before the poll and select one of their number as an agreed candidate for the Office of President. This did not happen because they all wanted to be President. None of them were prepared to admit that the opposition might have a better chance of winning the presidency if they withdrew from the race. Others, because of mistrust between their own political party and the party in power, could not bring themselves to form a coalition government with the party in power as a junior partner in the event that this was necessary.

Supporters of political parties are not helpful either. They appear ignorant of the idea of two political parties working together as a government without losing their identities. The leader of the Heritage Party in Zambia, Brigadier General Miyanda, was asked if he could consider joining an alliance of opposition parties to field one candidate for the presidency in the coming election. His reply was that this would be something new in Zambia and is not part of the Zambian political culture! He refused to be a part of it. 

One of the stumbling blocks to the formation of coalition governments in Africa has been the electoral system inherited by African states from their former colonial powers. In virtually all the former British dependencies, with the exception of South Africa, the system of elections is the ‘first past the post’ or the ‘winner takes all’. This is because the British favoured and still favour this system.

Proportional representation in use in Mozambique, South Africa, and Namiba and soon to be used in Lesotho (mixed system) provides broad based political representation to minority political parties and interests. Using the percentages polled by the opposition and the ruling parties in Zambia, proportional representation would give the following picture of the final result:

• Movement for Multiparty Democracy – 44 seats
• Opposition political parties – 106 seats

The presidency, notwithstanding that the opposition political parties failed to field one candidate, would have been won by one of the opposition political parties. 

However, more will have to be done to convince African politicians of the need for replacing ‘first past the post’ electoral systems with proportional representation. 

‘The winner takes all’ as the ‘first past the post system’ is sometimes called, is open to abuse of the rigging of electoral boundaries. Rigging of electoral boundaries (gerrymandering) to handicap ones opponents has, in some countries of the world, been widely viewed as a legitimate perk of office.

I received a letter dated 8^th January 9year? From one of the leaders of the opposition political parties. A former diplomat to the Court at Saint James and later a Cabinet Minister in the UNIP government, Amock Israel Phiri, expressed his views on the result of the recent elections and explained to me some of the causes for the failure of the opposition to win. He wrote:

Of the many explanations as to the success of Mwanawasa (the ruling party’s candidate), I would like to briefly discuss rigging of the elections and fragmentation of the opposition...The opposition blames rigging of the election and not disunity of the opposition. Yet, fragmentation of the opposition might have contributed more. Indeed, despite the massive rigging Mwanawasa got around 29% to the opposition’s 71%. Had the opposition been united and fielded one presidential candidate, he would have got the 80%, if not more, and won. The election results at parliamentary level also show the same. If the opposition were untied and put up one parliamentary candidate against one from the MMD, the MMD would have lost badly. 

So despite the massive rigging, the people wanted to change, remove the Government that kept more than 80% of the Zambian people wallowing in abject poverty. At no time in the history of Zambia did the people vote as much as they did this time and do not accept the controversial results of these elections. Unfortunately, they have no one leader that can guide them to go on the streets because the opposition is disunited. For that is the only effective way. 

International observers monitored the election. These were from the Commonwealth, the Carter Centre, Southern African Development Community/Parliamentary Forum and the European Union. Local monitoring groups also took part – these included Forum for Democracy and Election Process, Christian Council of Zambia and Non-Governmental Organisations’ Coordinating Committee and Election Coalition 2001. None of these organisations gave the result of the election a clean bill of health. There was one thread running through their individual reports. This is that:

·        The public media gave the party in power almost all the media coverage for its campaign and none to the opposition party groups. News and information that was perceived negative and therefore favouring the ruling party was published. This included news from the radio and television and from the two daily newspapers – the Times of Zambia and the Zambia Daily Mail.

·      

 T   The ruling party’s presidential candidate continued to utilise government resources for his election campaigns. This gave the ruling party an unfair advantage over the other candidates – he had free use of government vehicles, planes, and twenty-four hour security for himself and members of his family. He also had untrammelled access to the electorate. In essence, there was a lack of adherence to the electoral regulations concerning the use of government resources during an election campaign. The Electoral Commission of Zambia that is responsible for enforcing the Code of Conduct for elections failed to enforce the regulations. In fact, the Commission made no attempt to do so.

·        On the day of the poll, some polling stations had no ballot boxes, ballot papers and other election materials. This was evident in the polling stations in Lusaka and in Livingstone, particularly in those polling stations believed to be opposition strongholds. Voting in these did not commence till the afternoon. By that time, some voters had left the polling stations. When voting finally commenced, there were long queues and the closure of these polling stations did not take into account the late start. They were closed at the appointed times, thereby turning some voters away who were already in the queue. The presiding officers manning the polling stations lacked authority to extend time for the poll. They were also unable to contact the Returning Officer for the constituency to grant authority for an extension of the time for the poll.

·        In 83 of the 150 constituencies, no invalid (spoilt) ballots are shown for either the presidential or parliamentary election in the constituencies, or for both. This does not appear credible taking into account that most of these constituencies are based in the rural parts of the country. The question remains as to what happened to any invalid (spoilt) ballot paper.

·        Fifty-five constituencies show invalid (spoilt) ballots for the parliamentary election but not for the presidential election. Where invalid (spoilt) ballots are shown, these average approximately 2% of the total vote.

·        Twenty-two constituencies show a difference of 900 voters or more between the turnout for the presidential and parliamentary elections. The number of votes in these seats alone is almost 50,000. The published majority for Mr. Mwanawasa is 34, 000. It is difficult to see how an identical electorate, at the same polling station, at the same moment, could produce such discrepancies. According to the monitors, the Electoral Commission of Zambia has been unable to explain such phenomena. 

·        Although the poll in Zambia takes place on one day and in this case, on the 27^th of December 2001, however in the recent election as of 31^st of December 2001, voting was still going on in a handful of polling stations – this is four days after the date of the actual polling day leading to allegations of illegitimate influence on such voters. There was no legal sanction for doing this. 

·        Delivery of voting materials was delayed in much of the rural parts of the country and so voting there started late. The Zambian National Broadcasting Corporation radio station amid all this broadcast erroneous information that the ruling party was winning the election. 

·        The high number of votes released by the Electoral Commission of Zambia as votes secured by the ruling party candidate in the presidential election turned out to be significantly smaller when the final tally was actually taken. 

·        There was a failure by the Electoral Commission of Zambia as votes secured by the ruling party candidate in the presidential election turned out to be significantly smaller when the final tally was actually taken. 

·        There was failure by the Electoral Commission of Zambia to supervise the election. A number of officers found manning the polling stations, it was later discovered, were Zambia intelligence personnel with no training as presiding or polling officers. It is most likely they had been placed in strategic positions so as to subvert the electoral process in favour of the ruling political party.

The Christian Council of Zambia, which also monitored the election, had its own observation on the presence of the intelligence officers at the polling stations. 

·        The presence of Intelligence officers at polling stations raised serious doubts about the election being held in a free and fair atmosphere. Zambia has enough police officers to maintain law and order at the polling station and we did not see why officers from the Intelligence had to be brought in to reinforce the process.

·        A noted feature was the scoring of the same number of votes by presidential candidates in constituencies as far apart as 300 kilometers and this included ethnic diversity between the constituencies. [22]

Because of the above anomalies that were highlighted by almost all groups that were involved in monitoring it, the Zambian election was not given a clean bill of health. 

The Christian Council of Zambia concluded in its report that, 

After considering all the above components, our conclusion is that although the elections were peaceful and incident free, they cannot be certified as free and fair and therefore the government cannot be recognised as one that has been legitimately elected.

The European Union also issued a statement on the election and said, 

Taking its performance into account in relation to the low – 55% – rate of voter registration, its failure to enforce its Code of Conduct, its administration on polling day, and its failure to address results, we conclude that the Electoral Commission of Zambia has failed to fulfil its mandate on behalf of electors of Zambia. 

In view of the administrative failures on polling day, the serious flaws in counting and tabulation procedures, together with the close outcome of the election, we are not confident that the declared results represent the wishes of the Zambian electors on polling day.

Of course, the new President has not viewed these observations in good light. He has accused the European Union of favouring the leader of the United Party for National Development, who is his closest rival in the race. He has dismissed the conclusion made by the Christian Council of Zambia and has accused the Council of intervening in State matters and being biased in favour of the opposition. He seems intent on clinging on to power, the electoral anomalies notwithstanding. 

The Restraining Order against Swearing in any Candidate prior to Verification of the Poll

The opposition has requested an audit of the ballot before the announcement of the winner of the presidential election could be made, taking into account the above anomalies in the poll. They commenced an action before the High Court for an order to restrain the Returning Officer, who is the Chief Justice, from announcing the name of the winner of the election till the determination of this exercise. On the 1^st of January 2002, Justice Peter Chitengi made a temporary (for one night) restraining order. 

However, on the following day when the hearing of this matter resumed, Justice Peter Chitengi discharged the restraining order. Thus paving the way for the name of the winner (who was the ruling party’s candidate) to be announced in time for the swearing in ceremony that took place in that afternoon on the 2^nd of January, 2002. In the meantime, paramilitary police ringed the precincts of the Courts and streets leading to the courts, barring normal traffic. There were helicopters hovering over the court building and all over town, trafficking down any protestors who might dare to go as far as the courts. 

In many parts of the world, the swearing in of a new President after an election is a joyous occasion, accompanied by fanfare with dinner parties, cocktails and dances such that the town where the inauguration ceremony takes place in an atmosphere of a carnival. That was not to happen on the day Mr. Levy Patrick Mwanawasa was sworn in as the third President of Zambia. Instead of merrymaking with his fellow citizens, there he was on the podium giving his inaugural speech in which he threatened those challenging his election. He told them that any street demonstrations against his election would lead to treason charges and if convicted by the court, punishment would include death.

Mr. Mwanawasa is a trained lawyer and knew that what he was saying and telling his countrymen was not the law of the land. However, on this occasion he was speaking as President with omnipotent power to make laws. In the same breath, he was also telling his countrymen that his administration would place law above men and women in power.

However, there are certain contradictions in his demeanour. He has dropped a number of the incompetent and corrupt leaders and officers who comprised the Court of Frederick Chiluba whilst retaining some of the most notorious. He has appointed a number of people who have very good track records in the service of the law and democracy. It seems he has only recently instructed that the Editor of the Post Newspaper, the only daily independent newspaper in the country, should not be prosecuted for publishing a libel against him. This is a break from the continual hounding of Editor Frederick M’membe that characterised the ten year rule of the former President.

It remains to be seen whether President Mwanawasa will be able to consolidate his position and establish any sustained independence from Mr. Chiluba, who is hanging on to the MMD Party Presidency. Mr. Chiluba has already begun to make unconstitutional demands for funds for the MMD from President Mwanawasa. Although the MMD is arguable now only a small party, Mr. Chiluba has a demonstrable track record of the type of ruthlessness required to keep him on the scene for the foreseeable future. President Mwanawasa will not be the only one to need nimble footwork in the ring with the MMD, a party in which he has no real hold and in which membership is now largely bought. The leadership of the opposition parties will have to sharpen their own acts considerably to deal with the difficulties they face. While not wanting to blame the victims, the opposition cannot be absolved from blame. 

Their acceptance of the existing electoral dispensation has meant that they cannot be seen to have truly championed the rights of the electorate. With the encouragement no doubt from their various backers in the international community, they allowed their ambitions to get in the path of their vision. 

Zambia requires, as it did in 1991, a new constitution obtained through a creditable process. This was completely blocked by the Chiluba Administration. Also needed is a total overhaul of the electoral process that has been in tatters since the Chiluba Administration set about to achieve its total subversion years before the 2001 election. 

Still in the offing – whether the long-suffering people of Zambia will find relief in the courts through the case brought by the opposition against the election of President Mwanawasa.

End Notes

1. Article 34(2)(a) and (b) of the Constitution of Zambia Act, 1996

2. Article 34(2)(f) of the Constitution of Zambia Act, 1996

3. Article 34(8) of the Constitution of Zambia Act, 1996

4. Article 34(9) of the Constitution of Zambia Act, 1996

5. Article 34(10) of the Constitution of Zambia Act, 1996

6. Article 41(1) of the Constitution of Zambia Act, 1996

7. Article 41(2) of the Constitution of Zambia Act, 1996

8. Section 3 of the Constitution of Zambia Act, 1996

9. Article 65(3) of the Constitution of Zambia Act, 1996

10. Zambia Democratic Congress v. Attorney-General of Zambia – 1996 High Court of Zambia – unreported judgement

11. The United National Independence Party and Liberal Progressive Front v. Attorney-General of Zambia – 1996 High Court of Zambia – unreported judgement

12. The United National Independence Party and Liberal Progressive Front and Others v. Frederick Titus Jacob Chiluba and the Electoral Commission of Zambia – 1996 Supreme Court of Zambia (judgement delivered on the 10^th of November, 1998 – unreported)

13. Section 3 Electoral Act of Zambia, 1991, as amended by Electoral Amendment Act of 1996

14. Supreme Court Judgement in the United National Progressive Front, Liberal Progressive Front and Others v. Frederick Titus Jacob Chiluba and the Electoral Commission of Zambia; supra. 

15. Article 35(2) of the Constitution of Zambia Act, 1996

16. Law Association of Zambia v. Attorney-General of Zambia – 2001 High Court of Zambia – unreported. Justice Peter Chitengi declared the Office of District Administrator as one in the civil service. A holder of that office is prevented under the Civil Service Regulations from participating in politics. 

17. Article 62(1)(a) and (b) of the Constitution of Zambia Act, 1996

18. Statutory Instrument dated the 15^th of November 2001

19. Allegations made by Mr. Anderson Mazoka, Leader of the United Party for National Development and widely reported in the Post newspaper (Zambia) in November 2001. This was later confirmed by General Christon Tembo, Leader of the Forum for Development and Democracy in December and reported also in the Post newspaper of December 2001. 

20. Results of the Zambia December elections as posted on the zamnet website in January 2002

21 R.M.A Chongwe, S.C. “the Impact of the electoral systems on democracy in Southern Africa – A Way Forward” in a consultancy paper prepared for the Western European Parliamentarians for Africa (AWEPA) – 1998

22. Report on election monitoring of the Zambian Election held on the 27^th of December 2001 by the European Union, Carter Centre, NGOCC, Coalition 2001, FODEP, SADC/Parliamentary Forum and the Christian Council of Zambia captured on the Internet on www.eueu-zambia.org/. It is however important to note that although the Commonwealth had election observers in place, theirs is the only monitoring group that had issued no written statement on the election so far.

Other monitoring groups made similar observations but it is appropriate to record some of the individual comments

*Carter Centre drew attention to the following matters that should be addressed after the presidential election petition has been determined:

1. Large variations between the number of votes cast for presidential and parliamentary candidates that occurred in approximately 22 constituencies;

2. The unusually high number of constituencies, 83 of 150, where no invalid ballots whatsoever were recorded in the presidential and parliamentary elections;

3. Discrepancies between the figures obtained from election officials at the constituency level based on polling station results, and the figures published by the Electoral Commission of Zambia, for instance, discrepancies found by Carter Centre observers in 12 constituencies in the Copperbelt and Central Provinces;

4. Unexplained large discrepancies found between the original Ndola constituency results and the results announced following the completion of the verification process

5. Inaccuracies in some of the Electoral Commission of Zambia’s published results, for example, constituency level results where individual candidates vote totals do not equal the overall sum of valid votes cast.

In elections such as this one where the margin of victory is small, such discrepancies take on greater significance. Cumulatively, the discrepancies may have a major impact on the election results and even affect the outcome, and therefore must be examined seriously. 

*The Forum for Democracy and Electoral Process made this comment:

After analysing almost 90% of election observation forms from the 6,247 FODEP monitors, and also considering the pre-election monitoring reports, it is FODEP’s well considered, factual and honest view that the 2001 elections were not efficiently and successfully conducted. As a result this has raised serious questions regarding the legitimacy and credibility of the election results. This is very unfortunate, as it has created public contempt of the outcome of the election as evidenced by the public demonstrations at a time the President-elect was being sworn in. That indicates the measure of legitimacy, or lack of it, of the just ended elections. 

*The Non-Governmental Organisations’ Co-ordinating Committee had this to say:

·        Counting of ballots in some of the constituencies started 18 hours after the last ballot had been cast. Most stakeholders (polling agents for various candidates) were exhausted and some of them were asleep as the counting went on. 

·        Ballot boxes from some constituencies in particular provinces were found in other provinces.

·        The results were first sent to the President at State House, then to the Bulgarians, who appeared to have no connection with the election and finally to Zambia National Broadcasting Corporation for an announcement.

·        Results in constituencies in favour of the MMD were being announced over the radio as some votes were waiting in queues to vote. This was meant to influence these to vote for the MMD.

·        Results in favour of MMD from outlying constituencies were announced for fresh elections before results in constituencies in Lusaka.

The NGOCC declared the elections null and void. It recommended for fresh elections to be held in order to give credibility and legitimacy to the government.

*The Election Coalition 2001 in its report stated: 

That a large percentage of polling stations in some constituencies had voters turned away. The following are given as some of the constituencies:

• ·        Chipangali constituency 69% of the polling stations
• ·        Kasenengwa constituency 67% of the polling stations
• ·        Mongy West constituency 67% of the polling stations
• ·        Moomba constituency 64% of the polling stations
• ·        Mufulira constituency 60% of the polling stations
• ·        Kalabo Central constituency 54% of the polling stations
• ·        Bweengwa constituency 53% of the polling stations
• ·        Chingola constituency 50% of the polling stations
• ·         Lusaka Central constituency 48% of the polling stations
• ·        Kanyama constituency 45% of the polling stations
• ·        Vubwi constituency 44% of the polling stations
• ·        Monze Central constituency 43% of the polling stations
• ·        Sinda constituency 40% of the polling stations
• ·        Kawambwa constituency 60% of the polling stations
• ·        Kapirimposhi constituency 40% of the polling stations

Estimates of queues with more than 20 people indicate a prevalence of this in polling stations shown as a percentage:

• ·        Western Province, 38%
• ·        Southern Province, 26%
• ·        Lusaka Province, 16%
• ·        Eastern Province, 12%
• ·        Luapula Province, 9%
• ·        Central Province, 6%
• ·        Northern Province, 5%

In more than 30% of the polling stations countrywide, intending voters were turned away. Based on the 4,066 centres where this occurred and using a moderate threshold that at least there were over 20 people in the queue, deductive estimates show that over 24,000 eligible voters were turned away. 

Further based on the estimate in over 50% of the constituencies, the number of people still in the queue when balloting was stopped was over 100, it is approximated that over 203,000 people countrywide were not allowed to vote. Preliminary estimates show that although the practice of stopping people on the queue from voting occurred countrywide, the occurrence is less prevalent in the Luapula, Central and Northern Provinces.