Zambia’s 2016 elections: is a disputed outcome now inevitable?

By Sishuwa Sishuwa

A flurry of questionable decisions by the electoral body, media exposés of irregularities, and controversial interventions by the government and military suggests yes.

Zambia’s enviable record of 25 years of peaceful democratic elections appears to be under threat. With less than ten weeks to go before the country goes to the polls on 11 August, several disturbing irregularities in the electoral process are emerging.

• The controversial decision by the Electoral Commission of Zambia (ECZ) to award the contract to print the ballot papers to a previously unknown Dubai-based firm
• The questionable appointment of unqualified allies of President Edgar Lungu to the Constitutional Court
• The suspiciously hurried enactment of legislation conferring immunity from prosecution on ECZ officials
• The registration of allegedly thousands of foreign nationals on the national electoral roll
• and the alarming prospects of military interference in the political process

could all undermine popular acceptance of the election results.

The frontrunners in the presidential race are the incumbent Lungu of the governing Patriotic Front (PF), and Hakainde Hichilema of the opposition United Party for National Development (UPND).

See: Can Zambia’s opposition unseat President Lungu in the 2016 elections?
Heightening the prospects for a disputed election result and political violence is the growing sense that neither party appears to be countenancing defeat. Over the last few weeks, both the PF and UPND have talked up their chances of winning, and understandably so.

With the PF only having been in power for five years and Lungu for a mere 15 months (following the death in office of predecessor Michael Sata), the administration feels entitled to more time. It has also expressed confidence that Zambians will look favourably on the party’s record and renew its mandate. Likewise, the UPND and Hichilema, who has spent a decade in opposition, are tantalisingly close to power and have voiced their conviction that their long wait for power will soon be over.

Lungu and the PF are desperate to retain power and continue enjoying the accumulation of privilege, while Hichilema and the UPND are determined to secure their turn to do so. The stakes are high and the defeated party’s willingness to accept the electoral results will, to a large extent, be determined by the credibility of the electoral process. However, if recent events are anything to go by, a disputed result appears almost inevitable.

ConCourt judges: buddies of the incumbent or fair adjudicators?

In February 2016, President Lungu appointed – as per the revised Constitution of Zambia and subject to parliamentary approval – six nominees to serve as judges on the newly-created Constitutional Court (Concourt). These were: Hildah Chibomba, Margaret Munalula, Mugeni Mulenga, Anne Mwewa-Sitali, Enoch Mulembe and Palan Mulonda.

The ConCourt has the final say on all matters relating to the interpretation of the Constitution including the election of the President. For instance, in the event that an election petition is filed against the President-Elect after elections, the ConCourt has the legal mandate to hear the matter within 14 days of its filing and can dismiss the petition or call for a fresh poll within 30 days. The decision of the ConCourt on any post-election case brought before it is final.

The ConCourt would thus be central to any post-electoral dispute, and opposition parties and civil society have raised concerns that half of the six judges appointed to the Court have close ties to the incumbent. Two were Lungu’s classmates at law school in the 1970s, while a third is a relative who controversially secured Lungu’s nomination to the PF presidency in late-2014 through questionable judicial decisions against his opponents.

none of the appointed individuals even meet the constitutional requirements to serve as a judge on the ConCourt

These links to the President has led the opposition to claim that the ConCourt will be unlikely to ever rule against Lungu. Yet a more important criticism in fact is that none of the appointed individuals even meet the constitutional requirements to serve as a judge on the ConCourt: namely, specialised training or experience in human rights or constitutional law and 15 years’ experience as a legal practitioner.

When John Sangwa, a prominent Zambian constitutional law expert, wrote to Lungu, pointing out these shortcomings and asking him to reconsider the choice of his nominees, the president ignored him. And thanks to the ruling party’s majority in parliament, all six nominees were ratified. Opposition parties argue that the appointments are part of a calculated strategy aimed at ensuring Lungu receives a favourable hearing should the election results be contested.

We are coming to vote

In December 2015, The Post, the leading private newspaper in the country, reported that ruling party officials were recruiting foreign nationals in border areas of Eastern and Luapula provinces – both of which are PF strongholds – to register as voters in Zambia. The Eastern Province borders Malawi while Luapula shares a border with the Democratic Republic of Congo.

Peter Sukwa, the investigative journalist who exposed the story and attempted to take pictures of PF officials conducting the exercise, was left with fractured ribs and a deaf ear after supporters of the ruling party beat him and urinated on him. It took specialist treatment from the country’s top hospital to save his life. The incident highlighted the rising levels of lawlessness that have characterised much of Lungu’s short, beleaguered term in office.

Undeterred, The Post pursued the story further and in May 2016 published evidence of several Malawians in possession of Zambian identity documents and voters’ cards. A check on the provisional electoral roll using the verification process devised by the ECZ confirmed the appearance of these foreign nationals. Furthermore, in separate interviews with the newspaper, some of the Malawians involved in the scheme testified that they had been mobilised with incentives by Zambian authorities and advised to assume common local names to register as voters in several constituencies of the Eastern Province.

Chisamba, a community leader of Malawi’s Mchinji district, led the testimonies, saying: “We are coming to vote. The PF government helped us get these voting requirements and it is our democratic right…We are all ready to come and vote and…are not afraid because we have been permitted by the Zambian government”.

Amidst unverified reports that up to 500,000 foreign nationals from neighbouring countries are appearing on the voters’ roll, the opposition UPND went to the police this May to report the matter. But the police are yet to make any formal arrests, while the ruling party has dismissed the allegations as an opposition smear campaign against the ECZ.

Exonerating itself, the electoral body itself responded that the issuance of a national registration identity card, the prerequisite for acquiring a voters’ card, is the preserve of the government. The ECZ spokesperson said: “the commission does not register foreigners as voters…the basis for registration is a green national registration card and the assumption is that when a person walks to registration officers with a green national registration card, that means that person is a Zambian…It is the Department of National Registration [a division of the Ministry of Home Affairs] that issues national registration cards.”

Opposition parties have cited both the registration of foreign nationals and the police’s lacklustre response as evidence that the ECZ colluded with the governing authorities to manipulate the elections. How this issue is resolved over the next few weeks will have a crucial bearing on the credibility of the electoral process. Left unaddressed, and in the event of a victory for Lungu, it may spark generalised anger or feed into xenophobic attacks against Congolese, Malawian and other foreign nationals. The opposition may also contest a PF victory on the grounds that it was secured with the illegal help of non-Zambian voters.

Adding to the tension is also the fact that the provisional voters’ roll contains monumental errors. In many instances, people who registered in urban centres have found their registrations moved to rural areas without their consent. And media reports suggest that this has been most common in opposition strongholds.

The scale of the reported anomalies combined with the limited time provided by the ECZ for voters to verify their particulars (slightly over a week) has fed suspicions that there is a systematic attempt at play to minimise the number of opposition supporters able to vote.

The new electoral law: institutionalising wrongdoing?

In early May, the PF took to parliament a hastily arranged bill that proposed far-reaching amendments to legislation on the administration and organisation of elections. Among other things, the bill sought to provide ECZ officials with immunity from prosecution for any decisions taken in exercise of their duties and to criminalise the disclosure or publication of ECZ documents to unauthorised persons. It also proposed allowing the President to sack ECZ commissioners for any reason.

Despite criticism that the changes would place the electoral commission above public accountability and undermine its independence, the bill was passed a few minutes before the dissolution of parliament on 13 May. At the time of writing, the bill has yet to receive presidential accent and the final version may, according to parliamentary sources, have different clauses to those that have been published.

The main opposition parties, led by the UPND, see this new law and its suspicious timing as further evidence that Lungu is preparing the ground for a fixed election. They claim that conferring immunity on ECZ officials is meant to protect those who may facilitate the manipulation of election results, while the classification of ECZ documents is a strategy designed to prevent the media from using, say, parallel vote tabulation to publish election results other than those formally approved.

For their part, the ruling authorities have dismissed these claims as unfounded, arguing that the amendments were meant to enhance the independence of the ECZ and bring its operations into line with the amended national constitution.

Also adding to concerns, Lungu has made several changes to the ECZ leadership, moving the widely respected former chairperson Irene Mambilima to the Supreme Court and appointing Esau Chulu, who had served as Mambilima’s deputy, as her successor. The President further nominated three individuals with effectively no experience in managing national elections as ECZ commissioners. Opposition parties allege that Lungu’s reconstitution of the electoral body on the eve of a crucial election demonstrates his determination to ensure a favourable outcome.

From ballot to bullet? The military’s increasing involvement

On 20 May, the commander of the Zambia Air Force (ZAF) issued a strongly-worded warning that the military would tightly control the use of the “innocent” airspace throughout the campaign period, ostensibly to protect it from abuse.

In remarks that are worth quoting at length, General Eric Chimense said that: “Under the prevailing security conditions today, as Zambia Air Force, we are duty-bound to take stringent measures that would prevent our innocent air space from being used wrongly by the perpetrators of violence within our nation. We as service chiefs are seriously concerned with the carelessness and lack of patriotism, hooliganism and total indiscipline that has been observed over the past few months from some of our citizens…These individuals have been justifying the acts of violence or rather of their followers in the name of retaliation or indeed self-defence…It is a threat that cannot be allowed to continue growing in our society. Some of the perpetrators of genocide we hear being arrested in our sister countries within Africa are because of the statements these individuals made before genocide. We as Zambia are known the world over as peacekeepers. We do not want peacekeepers to come to Zambia.”

Chimese’s public address was generally perceived as a veiled message to the UPND, whose leaders recently advised members to defend themselves against attacks by ruling party supporters in the face of a lack of protection from police. The General’s pledge to protect the airspace meanwhile was seen as a euphemism for justifying the Air Force’s frustrations of the opposition’s electoral campaigns on the flimsy grounds of ensuring security while Lungu is flying across the country. This conclusion is backed by the fact that a few days earlier, UPND leaders had complained to the ECZ that the ZAF command had grounded its campaigns with the party’s airplanes denied clearance to fly.

The remarks by the Air Force commander were thus important for several reasons. First, they are evidence that top military commanders are siding with the governing party. Second, they highlight the increasing involvement of the Zambian military in electoral contests. In the run-up to the January 2015 presidential election, military chiefs reportedly backed Lungu, hitherto the Minister of Defence, in the PF’s divisive succession wrangles. And the ZAF commander’s recent comments provide possible indications of the consolidation of that relationship.

Since ZAF helicopters ordinarily transport election materials to and from rural constituencies before and after voting, Chimese’s remarks may further be interpreted as an early indication that the authorities are preparing the ground for manipulating the election outcome. For instance, if the ZAF choppers are to play a part in rigging the vote, the authorities may be pre-emptively trying to prevent the opposition from collecting evidence of such activities.

Furthermore, the commander’s comments arguably demonstrate an attempt to intimidate the population into submission in the event of a disputed election outcome. And finally, given that the rank and file of the military may retain different political persuasions to their commanders, such remarks also have the potential to divide the security forces and foment protracted civil strife in the event of a disputed election.

Printing papers: a controversial contract

In all this, one of the most worrying developments has been the decision of the ECZ to award the contract to print ballot papers to a previously little-known Dubai-based firm, Al Ghurairi Printing and Publishing. Civil society, the press and opposition parties protested strongly against this decision, claiming that the company printed ballot papers for Uganda’s disputed February 2016 presidential poll. The ECZ denied that Al Ghurairi had any involvement in those elections, though in fact both sides are mistaken. The truth is that the company printed ballot papers for Uganda’s local government elections held alongside the presidential poll.

Regardless, an explanation by the ECZ is still needed, especially since the Dubai-based firm quoted $3.6 million for the contract, which is more than double the amount tendered by the South African company Ren-Form CC, which has printed Zambia’s ballot papers for the last three years, including those for the 2015 presidential by-election. Since 2006, ballot papers for Zambia’s general elections have always been printed in nearby South Africa, raising questions about the change to United Arab Emirates. Claims by the ECZ that Al Ghurairi provides superior security features have not been substantiated.

To the delight of opposition parties, Ren-Form CC subsequently lodged an appeal against the ECZ’s decision to the Zambia Public Procurement Authority (ZPPA), a government regulatory body with the power to review matters relating to public procurement. After careful consideration, the ZPPA advised the ECZ to cancel the award, citing a number of irregularities, and to restart the tender nomination process.

This recommendation drew sharp criticism from the ruling authorities who, according to well-placed sources in ZPPA and ECZ, asked the regulatory body to rescind the decision. A few days later, however, the ECZ confirmed the final award to Al Ghurairi, prompting further accusations that the Dubai-based firm will be involved in efforts to rig the elections.

Hichilema has been resolute in his opposition and warned that if the deal is not cancelled, it might plunge the nation into chaos. Al Ghurairi’s failure to address the complaints of opposition parties has only fed into growing speculation that it is colluding with the ruling authorities to undermine Zambia’s electoral process. It would be astonishing to see a company genuinely seeking to build an international reputation open itself up to such criticism.

The tenacity of ordinary Zambians in resisting provocation and avoiding political violence over the last 30 years has been remarkable. One can only hope that this record endures and that the mounting irregularities around the current elections do not test the patience of the opposition and the general public to breaking point.

Sishuwa Sishuwa is a Zambian political analyst based at the University of Oxford.

Source:African Arguments