Inclusion as we know it, is a philosophy built on the belief that all people are equal and should be respected and valued. This philosophical position is reflected in the preamble to the Constitution of Zambia (Amendment) Act No.2 of 2016, where we as a people “confirm the equal worth of women and men and their right to freely participate in, determine and build a sustainable political, legal, economic, and social order.” This is also in tandem with Article 8 of our Constitution which lists equality and non-discrimination as part of our national values and principles. There is no doubt, inclusion is a value held dearly by the people of Zambia. It does not come as a surprise that now, after demands for inclusion of prisoners in the voter register and voting process, the Electoral Process (Amendment) Bill is being tabled to reflect this in our electoral laws.

The Constitutional Court in the case of Godfrey Malembeka (Suing as Executive Director of Prison Care and Counselling Association) v Attorney-General and Electoral Commission of Zambia selected Judgment No. 34 of 2017, set a clear path in terms of inclusion for prisoners. The Court held that sections 9 (1) (e) and 47 of the Electoral Process Act, No. 35 of 2016 contravene Article 46 of the Constitution as amended and are, void, and should be expunged from the statute books. The Court subsequently held that persons in lawful custody and those whose freedom of movement is restricted under a written law are entitled to vote in future elections. The future is now.
An analysis of the Electoral Process (Amendment) Bill No. 30 of 2021 can be done by answering this question: what is there to worry about? The preamble of the Bill states the objects of the amendment. They are to facilitate the conduct of elections in prisons; voting of prisoners; and the granting of access to prisons and correctional centre’s to the Electoral Commission of Zambia, candidates, polling agents, accredited election monitors and observers for various purposes. Section 3 and section 6 of the Bill state exactly what the Constitutional Court provided us with a roadmap to inclusion in electoral processes for persons in lawful custody. The clauses repeal and replace section 9 of the Electoral Process Act No.35 of 2016, and repeal section 47 of the principal Act.To this extent, one can say there is a clearer path to prison voting and inclusion in the Bill.
There is a saying that wrinkles go where smiles have been. That is exactly what the Bill presents. After the progressive objects, come the problematic clauses that go inclusion against the values and principles of non-discrimination and democracy. Section 4 of the Bill proposes to amend the Electoral Process Act by inserting section 24A and 24B after section 24. The proposal is with regard to access to polling stations in prison or correction centres and access to prisoners during the election period. Section 24B as proposed in the Bill raises concerns with regards to voter education. It does not mention voter education as one of the legitimate reasons for accessing prison. The role of non-state actors in the election process in prisons is left to only election observing and monitoring on election day.
In its current “wrinkled” form of inclusion, the proposed section 24B goes against section 3 (f) of the Electoral Process Act number 35 of 2016 which provides that, subject to the Constitution, the principles applied in the electoral systems and process shall ensure impartial voter education programmes. Section 24B goes against thecurrent provisions of the Electoral Process Act and the national values and principles specified in the Zambian Constitution. Further, the proposed section 24B, limits candidates to only distribution of campaign materials and no room to avail themselves and be seen by their potential voters. Such restrictions are alien and would go against the principles of our electoral systems and process.
Away from the issue of prisoners’ voting rights, the Bill also proposes to make the announcement and declaration of election results by a person without lawful authority an offence by amending section 89(1) of the Electoral Process Act. This is the threat to parallel voter tabulation. This will lead to a lack of transparency and accountability in the delivery of election results in Zambia and may lead to unnecessary tension at the close of the polls.
To conclude, the road towards the polls for inmates was made clear by the Constitution Court. The Electoral Process (Amendment) Bill No. 30 of 2021 makes it a bumpy road filled with a lack of access to information, transparency, and accountability. That makes it difficult to celebrate the inclusion of prisoners in the civic processes of our country. The provision on the prohibition of the declaration of election results by ordinary people threatens to ignite tension and possibly civil strife in a country already marred by political polarization and division. Amidst all this, our parliamentarians have a chance to make things right.
We recommend that the Bill be amended to ensure voter education programmes conducted by civil society become part of the electoral reform in prison voting. We further recommend that amendments be made to the Bill to allow physical campaign messaging by candidates and political parties. Finally, the penalizing of election results announcing and or declaration through various methods by persons should be removed from the Bill. We believe that these recommendations once taken into consideration would inject confidence in the electoral process.

Chapter One Foundation is a civil society organization that promotes and protects human rights, the rule of law, constitutionalism, and social justice.