LAW Association of Zambia president Abyudi Shonga has backed the Electoral Process Amendment Bill and supported the position that the Electoral Commission of Zambia (ECZ) is the only institution which can announce results.
And Shonga says despite the short amount of time left in which to adequately provide for prisoners voting, it would be unconstitutional not to realise the Constitutional Court judgment.
Meanwhile, ECZ commission secretary Bob Musenga says those in prisons are the ones who will be allowed to vote and not those in police detention because they have a specified period in which they are supposed to be released.
When Shonga appeared before the parliamentary committee on legal affairs, national guidance, gender matters and governance, Thursday, Livingstone Central UPND member of parliament Mathews Jere asked him which mischief was being caused by the section in the bill which says ECZ is the only one to announce results, referring to the 2011 case in which The Post newspaper was stopped from publishing results which weren’t officially from the ECZ.
In response, Shonga said having multiple institutions publishing election results had potential to cause confusion.
“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 just discontinue the matter by consent?’ So as AG, I agreed and we discontinued the matter,” Shonga said.
“And from the day of the consent order, they stopped and waited for the ECZ to announce [results] and then they reported on what the ECZ had announced. So honourable member, that is the mischief that I see this particular section trying to prevent, and from my own experience, it’s 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]. I thank you chairperson.”
And when asked by Jere on whether there was enough time to operationalise the law, Shonga said it would be unconstitutional to prevent prisoners from voting in this year’s election.
“I don’t think that I agree that the time available is too short, I agree that from the time the judgement came out, efforts to perhaps push this legislation could have been done much earlier. I agree with that position, but I don’t think that the limited time that is available prevents the house from putting into effect this law. Remember, honourable chairperson, that once the Constitutional Court has made a determination, that determination is the position of the law because it is their sole mandate to interpret constitutional provisions. Put another way, it would be unconstitutional to prevent prisoners to vote in this year’s election on account of the decision in the Malembeka case,” Shonga said.
In response to Itezhi-tezhi UPND member of parliament Herbert Shabula, who wanted a comment on the refusal to allow media, CSOs and other groupings in prisons to report on the happenings, Shonga said given that prisons were controlled areas, the ECZ would put in place mechanisms to allow limited numbers of interested parties.
“Well, I think that you need to remember chair, that the area where these polling stations will be set up will be controlled areas in the prisons. One of the things that we grappled with in our consultative process prior to making recommendations was that it was important for the legislators to be aware that we are talking about a controlled area, and so our understanding is that there would be mechanisms put in place by the Electoral Commission of Zambia to allow limited members from the various interested parties, the usual oversight when it comes to ballots being cast, that is our understanding,” said Shonga.
And Musenga said the matter of persons in police custody voting would be handled administratively by the police.
He was responding to Dundumwezi UPND member of parliament Edgar Sing’ombe, on whether those in police stations would not be allowed to vote.
“Honourable chair, like I indicated, we are proceeding on the assumption that the police officers would handle this matter administratively and the reason is we are looking at the period that the law permits the police officers to hold persons in cells and this is up to a maximum of 48 hours and this is why we have concentrated on persons who are in prisons or correctional centres and whose period in lawful custody can be determined. For persons in police cells, it’s administratively a challenge for us to put up regulations because these are people that would be locked up today and out tomorrow. And so in coming up with the law, we are mindful of the fact that we need to come up with laws that would be practical in terms of application. For purposes of these short term detentions, we may not achieve our intended goal if we took that route, and hence, have to recourse or resort to administrative processes by the police officers,” he said.
Musenga said allowing persons in police custody [to vote] comes with a lot of practical challenges.
“I must hasten to indicate that with the incoming proposed bill, we engaged all major stakeholders, including correctional services, the Zambia Police Service and other stakeholders. In our interactions with these stakeholders, it was clear that putting in place regulations that would govern persons in police cells and police custody would come with a lot of practical challenges, and the major reason is that of periods that the law allows police officers to detain persons – which is up to 48 hours. So this is why in proceeding with this bill, we are proceeding with the effect that it will only affect those that are in correctional facilities,” said Musenga.