IN MARCH 2021, government introduced into the National Assembly, the Electoral Process (Amendment) Bill No. 30 of 2021. The Bill seeks to, among other things, penalise the announcement and declaration of election results without lawful authority. This would be accomplished through amending section 89(1) of the Electoral Process Act 2016, by the inclusion of a new paragraph (o) which reads: “without lawful authority announce and declare the results of an election.” The penalty for contravening provisions of section 89 of the Electoral Process Act 2016 is a fine not exceeding 200,000 penalty units or a prison term not exceeding two years, or both. This is the penalty that would apply if the proposed amendment is passed into law. The weight of the sentence together with the constitutional ramifications of its implementation entail that the proposed amendment should not be taken lightly.
In its edition dated 5 April 2021, the News Diggers newspaper reported that the Law Association of Zambia (LAZ) President, Mr. Abyudi James Shonga, SC, during his appearance before the Parliamentary Committee on Legal Affairs, National Guidance, Gender Matters, and Governance considering submissions on the Bill, supported the proposed amendment to ban the announcing of election results by unauthorised persons. The LAZ president is reported to have submitted as follows: “Let me draw you back to 2011 when the MMD government was in power. What happened at the time was that at the height of the elections, the results were trickling in from the Electoral Commission of Zambia but the tabloids, in particular the Post newspaper at the time, were making announcements about the results, and there was potential that some of the announcements may not have been in line with what was coming from the ECZ. I was explaining that as AG (Attorney General) at the time, I was concerned with that practice and took action in the High Court and sought and obtained an injunction to stop anyone apart from the Electoral Commission of Zambia from announcing the results. Now, that action was resolved by consent because the Post came on board and said ‘Look, we get the point, can we agree to discontinue the matter by consent?’ So as AG, I agreed and we discontinued the matter.”
The LAZ president is further reported to have said, “And from the day of the consent order, they stopped and waited for ECZ to announce [results] and then they reported on what ECZ had reported. So honourable member, that is the mischief that I see this particular section trying to prevent, and from my own experience, it is something that I have seen to be a potential problem. So, I welcome this inclusion because it sets the position pretty much clear for everybody to know that the ECZ is the only one that can officially announce [results].”
We disagree with the position taken by the LAZ president for it is rather simplistic, subjective, and lacking in analytical rigour expected of LAZ. We argue in this article that the proposed amendment to the Electoral Process Act is not acceptable in a democratic society, which Zambia professes to be, for at least two reasons. Firstly, the amendment seeks to impose unreasonable restrictions that would negatively impact on the conduct of open and transparent elections. Secondly, the proposed amendment would unconstitutionally limit the enjoyment of fundamental civil and political rights which are guaranteed by the Constitution of Zambia such as freedom of expression.
Starting with the first argument, the proposed amendment to the Electoral Process Act is undesirable in a democratic state such as Zambia, as it proposes to remove institutional safeguards for conducting an open and transparent election, such as an independent media, opinion polls, exit polls, and parallel voter tabulation (PVT).
Internationally, opinion polls, exit polls, and PVT are considered useful election observation tools that can contribute to the integrity of an election. The Declaration of Global Principles for Non-Partisan Election Observation and Monitoring by Citizen Organizations 2012, for example, recognises that such tools seek “to enhance electoral integrity by deterring and exposing irregularities and fraud, deterring and mitigating potentials for election-related violence and by offering recommendations for improving electoral and political processes.”
The proposed amendment would potentially put a blanket ban on any or all of the above progressive democratic tools for enhancing electoral integrity. The amendment is couched in extremely broad terms such that it would be virtually impossible for citizens to adapt their conduct or deliberation over election results in a manner that would conform to the dictates of the provision. It is simply a crime to, “without lawful authority announce and declare the results of an election.” What constitutes announcing or declaring results is not defined. Further, the provision does not specify any timelines within which the restriction applies. Taken to its logical conclusion, the proposed amendment effectively entails that it would be illegal for citizens to publish or talk about election results even after the Electoral Commission of Zambia (ECZ) calls the election and declares winners. Such a ban would effectively criminalise innocent conduct such as collecting results formally announced by ECZ presiding officers at polling stations and adding them to get national estimates and sharing this information with others.
The format in which the proposed amendment is currently couched potentially outlaws these democratic tools for monitoring elections and detecting electoral fraud. From a constitutional and democratic perspective, the proposed amendment is unacceptable as it could be used as a tool for ensuring that the August 2021 general election is shrouded in secrecy, devoid of transparency and accountability. This intention to shroud the forthcoming elections in secrecy is further made apparent when the proposed amendment is read together with the recently enacted and controversial Cyber Security and Cyber Crimes Act No. 2 of 2021 which, amongst other things, empowers law enforcement officers to intercept communication in real time; and penalise the use of computer systems for any activity which constitutes an offence under any written law. Undoubtedly, the extreme haste with which this controversial cyber law was passed is also telling.
It is therefore shocking that the LAZ president would be in the forefront supporting a proposed amendment that would effectively diminish electoral transparency, accountability and ultimately, electoral integrity. The LAZ president argues that announcing of election results by any other person than the ECZ would lead to “confusion,” but does not elaborate why “simply announcing results” would lead to whatever “confusion”. This argument exposes limited knowledge of electoral challenges in Africa. There is no demonstrable causal effect between announcing results and “confusion” or violence.
The factors that often lead to election-related violence in Africa are well documented and include ethnic polarization, winner-take all electoral systems that turn elections into zero-sum games, and compromised electoral commissions that fail to run elections competently and honestly. These are the more substantive issues one would reasonably expect a law association to be preoccupied with. Simply put, elections that lack credibility and legitimacy are likely to trigger electoral violence. It is for this reason that Koffi Annan asserted that “legitimacy is the crucial currency of government in our democratic age … victory without legitimacy is no victory at all.” Consequently, gaging citizens from freely discussing election results is simply treating a symptom rather than the problem, if not creating one. It simply never works.
The second problem with the proposed amendment to the Electoral Process Act is that it seeks to unconstitutionally limit the right to freedom of expression guaranteed under Article 20 of the Constitution of Zambia. Article 20(1) provides, “Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to impart and communicate ideas and information without interference…” Election results are not excluded from the ambit of freedom of expression protected under the constitutional provision. Comparative jurisprudence demonstrates that open discussion of election results, including result projections, opinion polls, and exit polls are consistent with freedom of expression.
In the case of Daily Herald Co. v Munro 838 F. 2d 380 (9th Cir. 1988), for example, the United States Court of Appeals (9th Circuit) dealt with a statute which restricted exit polls. The Court held that the restriction was unconstitutional as it violated freedom of expression guaranteed under the First Amendment of the US Constitution. The Court stated that “the statute (in question) was unconstitutional because its purpose is impermissible and the statute is neither narrowly tailored to advance the state’s interest nor the least restrictive alternative.”
In a separate concurring judgment, Judge Reinhardt asserted the importance of the relationship between exit polls and freedom of expression: “In sum, I believe that, in conducting exit polls, the press makes a legitimate contribution to the quality of public debate. Exit polls… provide information not only on the outcome of the election but also on why people voted the way they did…. By unduly restricting such information-gathering activity, the state of Washington restricts the debate on public issues rather than ensuring that it remains uninhibited, robust, and wide-open as the Constitution requires.” If there is fear that some people may spread falsehoods about election results, the cure is not to gag people but to simply provide correct results or accurate information. As Judge Brandeis stated in the case of Whitney v. California (1927), “the fitting remedy for evil counsels is good ones,” rather than coerced silence. There is simply no justification for limiting freedom of expression in relation to election results.
In asserting this, we are alive to that fact that freedom of expression is not an absolute right under the Zambian Constitution – it has inbuilt restrictions or limitations. The proposed amendment, however, does not meet any of the limitations permitted by the Constitution. Article 20(3) of the Constitution states that the limitations to the right must be: (a) under the authority or contained in a “law”; (b) “reasonably required” for purposes of protecting one of the named interests; and (c) “reasonably justifiable in a democratic society.”
The first restriction requires any limitation on freedom of expression to be prescribed by, or imposed under the authority of, law. To the uninitiated, it may look obvious that once passed by Parliament, the proposed amendment banning the announcement and declaration of results would be law. To qualify as law, however, the relevant provision must meet a qualitative test, namely, it must be drafted with sufficient clarity in order to allow the target people plan their lives according to the contents of the provision (see the case of Silver & others v United Kingdom). This entails that the law should allow the people to reasonably anticipate the consequences of the law, while the law should not allow for arbitrary interference by the government. This position was aptly stated by the Supreme Court of Zambia in the celebrated case of Christine Mulundika and 7 Others v The Attorney General (1995-1977) as follows, “fundamental constitutional rights should not be denied to a citizen by any law which permits arbitrariness and is couched in wide and broad terms.”
A look at the proposed amendment shows that it is too broad, lacks precision and specific timelines within which restrictions are effective. Qualitatively, such a broad limitation lacks the character of law and would deny rather than lawfully limit the right to freedom of expression.
The second limitation to the constitutional right to freedom of expression relates to restrictions that are “reasonably required” for purposes of protecting one of the named interests which include defence, public safety, public order, public morality, public health and the reputation and freedoms of others. It is not clear how restricting the announcing of election results can threaten any of these constitutionally recognised interests. If, the announcement of results by anyone else has potential to cause confusion (and possibly endanger public order), as the LAZ president argues, there is no demonstrable nexus or causal relationship. It remains mere speculation. People who have very little trust in the integrity of the ECZ could still react in unpredictable ways even to results formally announced by the ECZ. Therefore, the proposed amendment, considering its breadth, cannot be justified as “reasonably required” to achieve the interests protected under the Constitution.
In fact, the argument proffered in the LAZ president’s submission displays a lack of appreciation that elections are a process and results are a small element of that entire process. Where an election has been well run and people understand how an electoral commission has arrived at the numbers announced, there is usually no violence as the results have a stamp of legitimacy. But where there is no clear demonstration of how an electoral commission arrived at numbers, violent protests may result. The importance of a legitimate electoral process is reflected in the words of the Kenyan Supreme Court in the case of Raila Amolo Odinga and Another v Independent Electoral and Boundaries Commission and Others Presidential Election Petition (2017), thus, “even in numbers, we used to be told in school that to arrive at a mathematical solution, there is always a computation path one has to take, as proof that the process indeed gives rise to the stated solution.”
The third constitutional limitation to freedom of expression is when a restriction is considered to be “reasonably justifiable in a democratic society.” In order to be “reasonably justifiable in a democratic society”, any restriction on freedom of expression must pass two tests. The first is that the limitation must be necessary to achieve the objective that justifies it. This is known as the necessity test. The second test is that the restriction must not be too broad and go beyond what is strictly necessary to achieve its objective. This is known as the proportionality test (see the case of Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979). To meet the necessity measure, a restriction must be imposed as a response to a pressing social need while the proportionality test can be met through ensuring that any restriction to freedom of expression is narrowly crafted to achieve the legitimate objective that has necessitated the imposition of the restriction. There is no pressing public social need for the amendment. Further, as already noted, the proposed amendment is too broad and lacks specificity. It is chiefly at sea.
It is most unfortunate that this retrogressive proposed amendment finds support based on the LAZ president’s subjective experience as Attorney general in the MMD government. It is important at this juncture to provide context to the election process during the MMD government. In the run up to the 2011 elections, a consortium of civil society organisations, with support from some donor agencies, set up a robust election monitoring process, which included the utilisation of PVT. These organisations were able to compile and total election results from polling stations in near real time.
The MMD then, was strenuously opposed to the deployment of PVT and made several attempts to block it but failed. By the time the then Attorney General was taking the court action to forestall the use of PVT, election results and projections were already circulating on social media, indicating that the ruling MMD was headed for an electoral loss. Taking this context into account, the then Attorney General’s court injunction in 2011 was simply an exercise that seems to have been taken to serve the interests of the MMD as a political party and not the Zambian citizens. Needless to mention, a wrong action even at that relevant time. From a constitutional law basis, the Attorney General should not be involved in such partisan cases, unless specifically cited.
The recent Malawian case of Saulos Chilima and Lazarus Chakwera v Arthur Peter Mutharika Constitutional Reference (2019) provides useful guidance concerning the role of the Attorney General in a constitutional democracy. The Attorney General, as the chief government legal advisor, should be an objective defender of the Constitution and not take a partisan role, unless specifically cited. As the Malawian High Court (sitting as a Constitutional Court) stated: “Ideally, the Attorney General should be providing legal advice to those bodies on how they ought to give effect to the Court’s judgment. However, with the partisan role he assumed, the role of the office of the Attorney General in this regard is conflicted, thus compromising the discharge of his constitutional mandate….”
In consequence, it is wrong to write large the personal and subjective experience of the then Attorney General, into a collective position of the law association and further use it as a basis for submission to the National Assembly. There is no indication that the position voiced by the LAZ president was taken based on the collective wisdom or researched perspectives of any of the specialised committees of LAZ, which is clearly not bereft of expert researchers to provide a legally well-researched and cogent submission, based on detailed analytical and comparative research.
[The authors are legal practitioners, lecturers and researchers in the School of Law at the University of Zambia. The views expressed in this article, are, however, personal and may not reflect those of their institutional affiliations]