GOVERNANCE, Elections, Advocacy, Research Services (GEARS) executive director Mcdonald Chipenzi says the the Electoral Commission of Zambia’s decision to postpone elections because of the state funeral has no legal foundation.
But Mporokoso PF member of parliament Brian Mundubile says ECZ is on firm grounds.
On Monday, ECZ postponed the holding of nominations and polls for the Mongu District Mayoral by-election in Western Province and two Local Government Ward by-elections in Northern and Southern Provinces to March 22 and April 14, respectively.
The commission said the postponement had been necessitated by the death of fourth Republican president Rupiah Banda.
But Chipenzi said ECZ’s decision to postpone the holding of nominations and by-elections had no backing of the law.
“Unless proven to the contrary, the Electoral Commission of Zambia (ECZ)’s decision to postpone the nominations and by-election dates for the set of by-elections scheduled for April 7, 2021 has no legal foundation. I tried to read the statement issued by ECZ to see whether I would find a citation of the law, regulation or rule that gives it power to postpone the nomination and election once set, I have found none. Article 57 of the Constitution governs the by-elections in Zambia and clause 3 mandates the ECZ that, by regulation, shall set the place, where, and the date and time when, a by-election is to be held. This, the ECZ did religiously and nomination and by-election dates were set for the three local government by-elections,” he said.
“The challenge is ECZ has not cited the law, rule and regulation used to postpone the nomination and election dates for the Mongu District chairperson and the other two local government by-elections scheduled for March 15 and April 7 respectively. ECZ’s postponement of the three by-elections due to the death of the former president, Rupiah Bwezani Banda, has/ seems to have no backing of the law, rule or regulation but mere application of emotions by the Commission.”
He argued that ECZ was setting a bad precedent that would create serious challenges in the future management of elections.
“For avoidance of doubt, Section 57 of the electoral process Act No. 35 of 2016 advises that *the Commission may postpone the polling day of a by-election if it is satisfied that (a) the postponement is necessary for ensuring a free and fair election; and (b) the polling day for the election shall fall within the period required by the Postponement of by-election. In as much as “b” is respected, there are no compelling reasons to prove that the nominations and the by-elections would have not been free and fair due to the national mourning being observed to necessitate a postponement. What would have affected the free and fair election if the nominations and the by-elections were held as scheduled? Didn’t the Commission already set a precedent last year when it did not suspend campaigns and the campaigns continued during the mourning period of the founding president Kenneth David Kaunda?” wondered Chipenzi.
“Weren’t the political parties on their own volition, suspend the campaigns in honour of the founding president Kenneth David Kaunda who died in June at the hilt of the campaigns? Where has this new realisation and decision come from of postponing an already set nomination and by-elections dates? Is the death of the former president or observance of a National Mourning one of the reasons ECZ can use to postpone nominations or election dates? Ironically, the nominations which were due today were three days away to the burial date and more than three weeks to the set election date? The only law that mandates the ECZ to shift dates for election nominations and election itself is in Article 52(6) on account of death, disqualification and resignation of duly nominated candidate. And also section 56 of the electoral process Act specifically for a polling station when conditions are not good for free and fair election at that particular station. ECZ is setting a very bad precedent that will create serious challenges in future management of elections. Elections are about laws and not emotions.”
In an interview, however, Mundubile said the commission’s decision was within the law.
“The issue to resolve is that did ECZ act within the law? The answer is yes! Secondly, do they have power to move the date if they have good reasons to do so? The answer is again yes. That must be settled. They acted within the law and they have power to move those dates as long as they are within those dates. For me the loss of our fourth president should be something that touches all of us to a point that when we are in mourning, we should be seen to be suspending other activities that can be suspended so that we give the due respect to our departed father,” he said.
“So, for me I think that the decision ECZ made was very correct in the spirit of us as a country that respects our departed leaders. I think we would have looked very unusual when we are busy mourning and then these elections are going on and there is so much activity around. So, for me the fact that they are within the law and indeed for the sake of respecting our departed fourth Republican president, ECZ is on firm ground.”
And Mundubile said UPND was indirectly campaigning for the PF because of the unprecedented suffering in the country.
“As you know now, the UPND are campaigning for PF indirectly countrywide. We don’t have to do so much, because the Zambians are simply comparing, they are comparing their governance style to our governance style. They are comparing their tolerance levels to our tolerance levels. They are comparing the promises they made with the actions, and what they have been able to do. So an election is winnable almost everywhere and we will remain very confident in all the by-elections because we think that the UPND has done a lot to campaign for the PF. There is no more time for stories, people want to see action, people are disappointed, the whole country is crying. They have never reached these levels in terms of the suffering that this economy is imposing upon them,” said Mundubile.
