Thursday, May 30, 2024

Dora Siliya’s Catch 22: Why ECZ is Right About S.22 of the Electoral Act 2006

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Opposition MMD Spokespern Dora Siliya
Opposition MMD Spokesperson Dora Siliya

After Zambia’s elections of 2011, the party that won the elections, the Patriotic Front (PF) decided to petition dozens of seats won by the opposition parties. Among other reasons for so petitioning, the PF contended that these particular seats had been won either fraudulently or corruptly. Among the seats petitioned are those of close associates of former president Dr. Rupiah Banda who had lost the presidential election to the Patriotic Front’s Michael Chilufya Sata.

The Supreme Court of Zambia nullified the election of Dora Siliya for Petauke, Mutolo Phiri for Chipata Central, and Maxwell Mwale for Malambo. Several other seats were also nullified triggering by-elections in all these constituencies. Some sections of Zambian society have held rather than good will, the PF triggered these by-elections so that they could get the needed majority in parliament to have Zambia revert back to the dark ages of the UNIP dictatorship.

There has been debate about whether under the current electoral laws; a candidate whose election is nullified can stand for re-election in the nullified seat. This question became even more heated after the ruling Patriotic Front accused the Electoral Commission of Zambia of flouting electoral regulations by allowing the nullified candidates to recontest their seats. In addition to the ruling party, a local civil society organization, the Transparency International also asked the ECZ to bar the likes of Dora Siliya, Maxwell Mwale or even Mutolo Banda from re-contesting their seats since the Supreme Court had nullified their elections.

Section 22(b) Electoral Act of 2006

At the heart of this dilemma is the provision from Section 22 (b) of the Electoral Act of 2006 which states, inter alia, that:

Any person who is convicted of any corrupt practice or illegal practice or who is reported guilty of any corrupt practice or illegal practice by the High Court upon the trial of an election petition under this Act shall not be qualified for election as a member of the National Assembly for a period of five years from the date of the conviction or of the report, as the case may be.

Obviously, the Patriotic Front is interpreting this provision to mean that people like Dora Siliya whose election to parliament were nullified by the courts of law should be barred from re-contesting. The Electoral Commission of Zambia (ECZ) on the other in a statement released 1 August 2013, has argued that the ECZ can only act to bar candidate if the High Court provides to the ECZ a report pursuant to Section 104 of the Electoral Act 2006. Section 104 (6) and (7) of the Electoral Act 2006 states as follows:

(6) Where it appears to the High Court upon the trial of an election petition that any corrupt practice or illegal practice has been committed by any person in connection with the election to which the election petition relates, the High Court shall, at the conclusion of the proceedings, prepare a report stating—

(a) The evidence given in the proceedings in respect of the corrupt practice or illegal practice;

(b) The names and particulars of any person by whom the corrupt practice or illegal practice was, in the opinion of the Court, committed:

Provided that the Court shall not state the name of any person under this paragraph unless the person has been given an opportunity of appearing before the Court and of showing cause why that person’s name should not be so stated.

(7) The Registrar shall deliver a copy of every report prepared by the High Court under subsection (6) to—

(a) the Commission; and

(b) the Director of Public Prosecutions.

(8) The Commission shall, as soon as it receives the report under subsection (7), instruct an officer to prosecute any person stated in the report.

It is my opinion that the ECZ’s interpretation of section 22 using section 104 is correct at law. As such, for reasons presented below, I would hold that it was never the intention of Zambia’s electoral laws to disqualify any candidate from re-contesting a nullified seat without further instruction and deliberation from the High Court.

The Civil and Criminal Law Distinction

To clear the confusion, we must first begin by differentiating between the goals of two different aspects of legal suits tenable in the Zambian judicial system: a civil suit or a criminal suit. Each of these come with different remedies and in fact, has different goals. As such, in order to understand the desired outcome of any legal suit, it would be important to first understand its categorization at law. A criminal offence is usually aimed at punishing an offender and is commenced by the state against an offender. An interested party who takes another party to court to seek specific or general remedies on the other hand initiates a civil case. In the context of an electoral petition, a petitioner asks the court to nullify the election of a respondent. The parties to an electoral petition are private individuals contesting competing rights to a seat in parliament.

Criminal law on the other hand has different goals in mind. It seeks to punish offenders for specific offences that have been proscribed through the Penal Code and other laws. According to the constitution of Zambia, the Director of Public Prosecutions is the primary officer that prosecutes criminal offences in Zambia.

That being the case, it is clear that Section 102 (3) of the Electoral Act of 2006 specifically mandates the High Court to “exercise such powers within its civil jurisdiction as it may deem appropriate.” This provision, therefore, shows that the main element of an electoral petition is civil rather than criminal.

Having established that electoral petitions are primarily civil suits, the next issue to deal with concerns remedies. In most cases, a petitioner asks the High Court to nullify an election based on several grounds. The petitioner primarily contends that the election was not free and fair. Based on the evidence she provides, she can then have the court rule in her favour and nullify the election of a respondent.

This then brings us to the question of the standard of proof. In a civil case, the standard of proof needed to prove a case is a balance of probability. This means that it is more likely than not that evidence rendered proves a particular point. However, the Zambian Supreme Court has raised the standard of proof needed in electoral petitions. In the case of Lewanika and Others v Chiluba and in the newer case of Sikota v. Mabenga the Supreme Court ruled that the appropriate standard for proof in electoral petitions should be slightly higher than civil case’ balance of probabilities but must be below the criminal threshold of “proof beyond reasonable doubt.”

Indeed, there is not standard higher than “proof beyond reasonable doubt.” This standard is used in criminal proceedings. The reason for a higher standard in criminal proceedings is that no innocent person should be punished for a crime they never committed and that it is in the interest of justice that the State which has almost unlimited resources should be able to gather all resources necessary to prove its case.

Having dealt with some background information above, I must now turn to the question of whether the drafters of the Electoral Act intended to disqualify candidates from re-contesting their seats. To do so we must focus on the actual text of the Electoral Act.

According to section 22 of the Electoral Act there are several categories of people and situations that would lead to a candidate being unqualified.

Criminal Conviction Bars A Candidate

First, any person who is convicted of any corrupt practice or illegal practice shall not be qualified. Without further complications, this provision does seem to contemplate a clear criminal procedure. If a person is convicted of any corrupt practice or illegal practice, they are then disqualified. The term conviction is used only in the context of criminal proceedings. It is ridiculous to say that a person was “convicted” in a purely civil matter. The correct term to use in civil cases is “liability” or terms to that effect.

Specifically, when it comes to bribery and corruption, it is the DPP and the Anti-Corruption Commission who can bring a bribery or corruption case against a particular candidate. The ACC Act of 2012 (s.35 (1)) provides thus:

(1) The Commission has jurisdiction to investigate and prosecute any offence of bribery prescribed under section seventy-nine of the Electoral Act, 2006.

It is Section 87 of the Electoral Act 2006 that explains further punishment for those convicted of an “illegal practice”. The guilty shall be liable on, conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding five years, or to both.

Again to reiterate here, once a candidate is convicted not only would they not qualify to stand for re-election, they would also face jail time. Just as stated above, it is important to differentiate what is going on in a criminal trial and what obtains in a civil case. It is impossible to have a criminal trial within the context of an electoral petition. What an electoral petition can do is to make specific recommendations and observations upon which the DPP may make independent Judgement of whether he could proceed to charge the offender with criminal offences.

“Report” From the High Court Can Bar A Candidate

The second category of people disqualified are those who are “reported guilty” of any corrupt practice or illegal practice by the High Court upon the trial of an election. The first limb of section 22 is quite clear; any one convicted is not qualified. In the second limb however, very interesting words are used. For a person to qualify under this limb, they must have been “reported guilty”. The first one was to do with conviction, while the second limb deals with “report.” This report is only explained in Section 104 of the Electoral Act of 2006 as being the report that the High Court makes to the ECZ. And so, it is expected that if during the electoral petition, the High Court find reasons why a respondent should be “reported”, the High Court will then send the ECZ evidence and transcripts and report such a candidate. The consequence of a report triggers either a criminal prosecution by the DPP or a disqualification from contesting further elections.

The challenge, the “report” provides is that, it emanates from a civil case – that is it emanates from an electoral petition and yet has consequences similar to criminal convictions for corruption. In the case of Sikota v Mabenga, the court held that even if the case was of a civil nature, the respondent’s actions where so outrageous that they bordered on criminality. In its Judgement, the Supreme Court even went to the extent of recommending the prosecution of Mr. Michael Mabenga for corruption and theft of CDF funds. It is this kind of clear Judgement, which in my opinion triggers the application of S.104 (7) of the Electoral Act. Without categorical report about corruption from the High Court, it would be difficult for the Electoral Commission of Zambia to act and bar a candidate.

Conclusion

Without clear guidelines from the High Court that a candidate did in fact participate in some form of corruption or bribery of theft, it would be unfair to disqualify them from contesting their vacant seats. On the other hand, if a candidate has been convicted of corruption or stuff like that, then they must not stand as candidates. As for Dora Siliya, Michael Sata and Wynter Kabimba should prepare to meet her in Petauke as their “catch 22? has failed.

(c) 2013, Elias Munshya wa Munshya is not a member of the Zambian Bar. Specific legal advise should be sought from members of the bar. This article is for educational purposes only and does not intend to convey legal advise.

Source: ‘Elias Munshya wa Munshya Culture, Politics, Law & Theology

48 COMMENTS

  1. Surely who doesnt know the corruption that went on during mmd campaigns in 2011.i see we have a society that easil forgets.do u even need a report to see.jst say pf is nt wanted now

    • Did you see the corruption? Why don’t you report it to the anti corruption commission if you have evidence.

    • poor analysis by lusaka time…section 22 does not mention DPP or ACC..There is only a mention of court…all u need to know is that a petition is in between a criminal and civil case because standard proof is higher than a civil case but lower than a criminal offence…don’t mislead people by saying a petition is a civil case…u almost touched on this but went astray along the way…research more and give us a better report than this…yo analysis is not consistent and lack validity..this simple issue can result in to constitutional crisis…law shud be followed as it is than to dilute it with yo interest..

    • ———- Forwarded message ———-
      From: Marko Sovi
      Date: Thursday, August 1, 2013
      Subject: Dora Electoral Act 2006.
      To: Marko Sovi

       

      Kabimba Winter is in contempt, must be cited for putting ECZ in public disrepute.  It’s clear there are conditions to be met when the High Court provides to the ECZ a report pursuant to  Section 104 (6) and (7) of the Electoral Act 2006.  Clear,reading (6) and (7), indeed, Winter Kabimba is an incompetent Justice Minister not worthy that office; he’s the one standing on porous soil not ECZ. He’s Slowly sinking the PF.

      The earlier PF fires Winter Kabimba and distances itself from Fred Mmembe –Mutembo Nchito the better!! These 3 are a menace to PF.

      In fact as a senior govt officer, how can he lead…

    • Iwe muzanga( you my friend ), even after the law and electro code has been systematically broken down you don’t understand. Let me translate for your good, Batile ati ba Dora Siliya kuti baiminina pachipingo chabo, umulandu ba kwete te bwaba kasilikali; ba Dora naba nabo bakwete ifipapusho fya ku landiwa mu Nsaka yama court ya chalk iCha Zambia.

  2. This article does not clear the issues.

    The law should be very clear on two things – whether electoral malpractice constitutes a criminal offense and secondly if it does, then those found wanting should obviously not qualify as candidates. Let us examine the nature of electoral malpractice.
    Electoral malpractice is an offense that does damage to the STATE and it’s citizens and therefore constitutes a crime.

    The author has just been beating about the bush and seems to have some undeclared interests.

    • Excellent article.I now understand whats going on.Thanks Elias. DPP Nchito has his work cut out for him .PF keeps piling more witch hunt cases on his desk no wonder he is failing to show up in court to persecute RB.He is overworked.Well this is another cases for you Nchito to work on -providing evidence that can convict Dora on wrong doing.PF are such sore losers!

    • Kaili u ar ignorant, sleepy, blind like a copse so u can utters words that way no offence…………….the author of the article did his reseach and according to my humble knowledge on law, he is right and acculate…what is your research? i guess eating.

    • Then feira and other constituencies were PF won should be petitioned for the reasons that agents did some donations and graders were realocated to falsely work on the roads.Enticing and fooling the electorates

    • In my opinion, the author has answered the questions you are trying to find answers to.
      Just read again, you don’t need to talk much before you read with understanding.
      What you are asking is what he just explained.

    • re-read the article again: a civil case is brought to court by a grieved person while a criminal case is initiated by the state….for the case of electoral petition its a civil case which is initiated by an individual therefore can not be used as a conviction to bar someone unless that person is re-tried again

  3. Can anybody forward this article to these kaponyas,mcs and winter kamimbwia(bird).
    The is three types of brains,super ego,ego & the Id minds.
    The super ego-is mind of academics,fails to look at things from a realistic point of view.
    The ego mind -is a mind of realities,this mind is good for true leadership.as tangible progress is seen.nobody in of leadership has this kind of mind.
    The Id -mind of emotions mainly sex and other birth responses,unfortunately this is common in pf as seen from top to the kaponyas,
    No development for Zambia,this is a prophecy.

    • it must be translate to simplified venacular (not complicated venacular) first before forwarding it otherwise it will cause more confusions

    • sad to note that zambianwatchdogs are here. you are welcome ,however kindly note that here we do not insult. if you insult we ll know that you are a low life,poorly dressed educated polygamist.

  4. Good article but i note the last statement with abit of disappointment

    “(c) 2013, Elias Munshya wa Munshya is not a member of the Zambian Bar. Specific legal advise should be sought from members of the bar. This article is for educational purposes only and does not intend to convey legal advise“.

  5. What PF is doing is like someone who reads a verse in the bible without making connections to other verses or the whole chapter to understand things…..”like Jesus Wept” and then not wanting to know why he wept. Section 22 (b) of the Electoral Act of 2006 cannot be interpreted in isolation, read the whole Electoral Act.

  6. PF thugs are scared s.h.i.t of Dora Siliya because she is capable of beating them hands down. Go Dora Go… Show these i.d.i.o.t.s that we have lost confidence in them and that they cannot continue taking Zambians for granted.

  7. that article says it all and gives a clear view of what is happening. it is very important that zambians we take key interest in knowing, understanding, and interpreting all zambian laws that govern this country. it is very disheartening to note that even educated elit, pliticians, and some laws practitioners are lacking the integrity, competence, skill, ability, morals to reason and interpret these laws. they talk but on baseless grounds……………Elias has said it, for education purpose while exccellent, for the current political senerio again excellent…………………..ONLY THE IGNORANT, BLIND, WOULD DISPUTE THE WELL TABULATED ARTICLE……..THUMBS UP ELIAS……….Have learnt and now i know…knowledge is power i now believe. niceone.

  8. This is brilliant, concise analysis of the Acts in question. The law is very clear and the PF don’t stand a chance in getting this 25th July electon nullified. The Hon Home Affairs Minister should prepare to meet the Opposition on the ground.

  9. interesting. At least am now able to understand whats going on and i think i will be able argue on the nullification debate. Thanks a lot Elias for this lovely article

  10. Thank you bo Mushya , you are not a member of the bar but your legal reasoning surpasses that on Chibesakunda , Malila, Mwenya and Nchto.

  11. Good article very articulate, show these PF half baked lawyers Kabimba and Lungu what it means to be a legal guru

  12. The question which is begging in my mind is, why should a candident who did not participate in electral malpractices have his or her election nullified?

    The Act is ambigous.
    Is it fair then to nullify the election of a person who did not participate in an electral mulpractice?

    Please let a approach this issue with level headedness without prejudice so that its’ weakness can be repealed to answer some of the issues the act seem not to address.

    • If you connot find your answer in this article then it’s just unfortunate for you. Your question has been answered, I therefore find it hard that you are still asking the same question. Go back to the article my friend.

  13. The question which is begging in my mind is, why should a candident who did not participate in electral malpractices have his or her election nullified?

    The Act is ambigous.

    Is it fair then to nullify the election of a person who did not participate in an electral mulpractice?

    Please let us approach this issue with level headedness without prejudice so that its’ weakness can be repealed to answer some of the issues the act seem not to address.
    So Elias Wamusha’s analysis of the Act is incomplete without looking at it’s weaknesses. No wonder there is a lot of debate about it and its interpretation can go either way.

  14. f PF is serious about following the rules of Law,let them do the following very quickly:-

    a) Have Mutembo Nchito dismissed as DPP as he has a clear criminal
    record of FORGERY where he forged High Court Judgement.It is also
    on record that he obtained K14b by false presentations.Furthermore
    he gave a nolle to Raja Mahtan who was appearing court and in return
    Mahtani withdrew a case against Mutembo Nchito involving US$4m

    b) Madam Chibesakunda whose ratification for position of Chief Justice
    was rejected by Parliamentary Select Committee should immediately
    leave office where she is masquerading as Acting Chief Justice.

    c) Immediately open an inquiry on the procurement of OVER PRICED OIL
    costing US$500m instead of US$167M.WHO BENEFITED???
    Finally,Mr…

  15. (1) The question which is begging in my mind is, why should a candident who did not participate in electral malpractices have his or her election nullified?

    (2) The Act is ambigous.

    (3) Is it fair then to nullify the election of a person who did not participate in an electral mulpractice?

    (4) If the nullification includes the acts of the agent of the candident, then the candident is also liable, otherwise the courts would not nullify the election of an innocent candident.

    • If violence occurring during voting has the candidate participated in the violence? The problem is that you assume by-elections are only caused by corruption.

      unfair media coverage
      Mpenzeni campaigning
      More ballots voted than registered
      violence during voting by one or all parties involved
      etc

      Can cause a by-election. What has that got to do with a candidate?

    • for example witnesses saying they were bribed but not by candidate themselves but by different individuals……t

  16. That is why we have alot of law breakers from the ministry of home affairs, the minister does not understand the law worse off the corpses themselves. The author of the article you are the best, its a pity that these ngwangwazi or kaponyas won’t understand it.

  17. VERY INTERESTING ARTICLE. UNFORTUNATELY PF WILL NOT STOP DORA TO CONTEST HER SEAT. WORSE OF IT, IS THAT ALL PARTIES IN ZAMBIA PRACTICE CORRUPTION, THEY GIVE BRIDES AND GIFTS TO VOTERS AS A WAY TO INFLUENCE PEOPLE TO VOTE FOR THEM. THAT ALONE IS BRIBERY THEREFORE; IT WOULD BE VERY DIFFICULT FOR PF TO CLAIM THAT THEY ARE CLEAN. THEY ARE JUST AS DIRTY AS MMD EVEN WORSE CONSIDERING THAT THEIR CADRES ARE VERY VIOLENT. FOR PETAUKE. AS MUCH AS DORA IS NOT THE BEST CANDIDATE?? SHE WILL WIN!!!!! BECAUSE PEOPLE DON’T TRUST SATA AND HIS PARTY. HARD-LUCK PF.

  18. Whoever, came up with such a piece of law were either crooks orsick in deir heads.I wonder straight pipo can put in place something dat create misunderstanding.U have invidence dat 1 id iot stole yet u declare him innocent .lt is 0 st upid it.

  19. call a spade a spade. LAZ whr ar u? ths is wre u need to explain the law fully. can u oncemore expose ur dullnes. whose duty is it to tell who qualifies and doesn’t qualify?

  20. Its very clear that these dunder heads Pf don’t understand the laws of zambia no wonder they keep raping the constitution. They must attend night school. What kind of lawyers are beerman Edgar and Ka winter. This is like throwing sewerage water in their faces,that’s how they should be emberassed and feel.

  21. U use the argument above becoz it suits u? U are at the sametime standing at the rooftop calling others to resign on moral grounds or becoz they were accused of having committed corruption yet u want those whose seats were nullified to recontest.

  22. BANDA OF L.A.Z IS QUIET BECAUSE IT IS NOT IN HIS FAVOUR UNLESS IT HAD TO DO WITH PROTECTING RB OR DISCREDITING SATA – HAAA! THEN YOU WOULD HAVE HEARD HIM, THE CHAP IS SO COMPROMISED.

  23. DORA AND MAX CAN GO AHEAD AND STAND BUT SOONER THAN LATER, ACC WILL SUMMON THEM FOR INVESTIGATIONS AND BEFORE YOU KNOW IT THEY WILL BE BEFORE THE COURTS. TO AVOID WASTING MONEY BY VOTING FOR PEOPLE THAT MIGHT LATER ON BE FOUND GUILTY, RELEVANT PARTIES SHOULD FIELD PEOPLE FREE OF ANY RUMOURS OF CORRUPTION INVOLVEMENT. DON’T WE HAVE OTHER CREDIBLE PEOPLE IN ZAMBIA.

  24. Good article, I now have a complete sight of the whole situation. At one time i was of the view that maybe we woould have anyother by election in Chipata. But its clear as long as there was no report from the high court or supreme court its all gone. What then the PF should do is to ask the courts to send the report to ECZ for the coming bte electons. Simple

  25. AMbiguity at its best. That is why we fail to write a constitution that will stand the test of time. If these MPs are innocent of corruption then their seats should not be nulified. If the same recontest and win its better not to call for a bye-election. Just let them be after in a civil suit they are innocent of any crime.

  26. Unfortunately, Elias has not practiced Law in Zambia or any where in the world regarding criminal law & civil law, therefore his analysis is not beyond reasonable doubt. It’s purely academic (ideal). We’re not looking for opinions, but correct interpretation. Such an article is not very useful to us ordinary people because we do not know the correct interpretation. I wish someone could hit on the head of the nail.

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