Mayoral and selected Council Chairperson Elections may face legal Challenge

Governance and Legal activist has written to the Zambia’s Chief Justice, Irene Mambilima to immediately set up a Local Government Elections Tribunal that will adjudicate in legal challenges on nominations of mayors and councillors set for today, 26th June 2018

In a letter dated 25th June 2018, copied to the Electoral Commission of Zambia Chief Electoral Officer, Isaac Mwanza, has argued that elections of mayors and Council Chairperson do not require the minimum of 15 supporters as advertised by the Electoral Commission of Zambia but instead the law only require 9 supporters as per Section 33(1) of the Electoral Process Act No. 35 of 2016.

Mr. Mwanza has stated that the Elections Tribunal and the courts will need to adjudicate on whether mayors and council chairpersons who are not resident in their districts are also eligible to be nominated as candidates considering that the office of the mayor falls vacant when the mayor as a councillor ceases to be a resident in the district.

Mr. Mwanza said the Tribunal and the Courts will also be necessary to hear the right to vote for those who have attained the age of 18. He said Section 7 of the electoral law mandates the Commission to conduct continuous voter registration exercise and if ECZ implemented what the law required, those who turned 18 years should be allowed to vote and not disfranchised.

Below is the full letter

Your Ladyship,

RE: Appointment of ad hoc Local Government Elections Tribunals: Mayoral, Council Chairperson and Ward By-Elections (June 26 to July 26, 2018)

The above captioned matter refers.

My lady, I write to request your kind and urgent consideration in appointing ad hoc Local Government Elections tribunals pursuant to Article 159(1) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia and Rule 1 of Local Government Elections Tribunal Rules, 2016, issued under Statutory Instrument No. 60 of 2016 (hereinafter referred to as “S. I No. 60 of 2016”).

This request is made based on the following matters of fact and law.

The Electoral Commission of Zambia, in the attached press release dated 8^th June, 2018, issued a notice to the effect that it had prescribed Thursday 26^th July, 2018 as the date on which to hold the local government by-elections in 6 districts and 6 other separate wards. The Commission also notified the public that aspiring candidates in the Mayoral and Council Chairpersons’ elections should lodge completed and attested statutory declaration and nomination forms on Tuesday 26^th June, 2018, which you will note is exactly 30 days from the election date.

Article 52(4) of the Constitution provides for the challenging, before a tribunal, of the nomination of a candidate within seven (7) days of the close of nomination and the hearing of the case within twenty-one days of its lodgement. This in effect requires 28 clear days for any challenge to nominations against any candidate, to be heard before the election, in conformity with the principle of electoral process in Article 45(2)(e) which requires timely resolution of electoral disputes.

As per Rule 4 of the Local Government Election Tribunal Rules issued under SI no. 60 of 2016, one of the functions of the Tribunal, which I note, only Your Ladyship has power to appoint, is to hear and determine whether a person has been validly nominated as a candidate for election as a councillor (which includes Mayor and Council Chairperson), or the rejection of any nomination by the Commission. As stated earlier, should any challenge be brought forth, this must process must take place and be concluded within a period of 28 days.

Your Ladyship, may I humbly bring to your attention, the following as potential areas of conflict in the forthcoming local government by-elections:

1. Eligibility: Article 157(2)(a) provides that a vacancy in the office of a councillor occurs if a councillor ceases to be a resident of the district.

In view of the fact that mayors and council chairpersons are councillors, the question may arise as to whether a person who is not resident in the district is eligible to be nominated considering that the seat would fall vacant upon the person not hailing from the district contested winning elections.

2. Nominations and supporters: The Electoral Commission, in its announcement, stated that “aspiring candidates for the Lusaka District Mayoral elections and those for the office of Council Chairperson in Chasefu, Chipangali, Kasenengwa, Lumezi, Lusangazi and Chifunabuli districts, should take along with them fifteen (15) supporters who must be registered voters in the respective districts.”

It is my humble observation that this requirement is erroneously based on Article 71 of the Constitution which is not a requirement for district council elections as these elections for Mayor and Council Chairpersons are held exclusively based on Section 33 of the Electoral Process Act No. 35 of 2016 and Article 70 of the Constitution, and not Article 71. It is my humble view that the correct position of the law therefore is that any mayoral or council chairperson candidate who takes along nine (9) supporters, is validly nominated.

Section 33 (1) makes provision for the nomination of both district and ward councillors. Article 71 of the Constitution makes provision for the nomination of members of the National Assembly. Although Section 33 must be read together with Article 70 of the Constitution such that members of the National Assembly and Mayors or Council Chairpersons have the same qualifications, there is no requirement that they are to be nominated in the same manner stipulated in Article 71 because there is no express application of Article 71 to Mayors or Council Chairpersons. Section 33 (1) sufficiently makes provision for the nomination of district councillors which includes Mayors and Council Chairpersons.

The requirement for fifteen (15) supporters as announced by the Electoral Commission of Zambia, in respect of district council elections, is thus erroneous and should be corrected or would be subject to a legal challenge.

3. Post-election petition on the right to vote: The Tribunal and the courts may have to deal with the right of franchise in Article 46 of the Constitution for persons who have attained the age of 18 at the time of these elections but disenfranchised due to failure by the Commission to conduct continuous registration of voters in breach of Section 7 and Article 229(2)(a)(c) of the Constitution.

My lady, you will note that the issues raised above require the Commission to allow the processes of challenges to nominations or rejection of nominations, to be dealt with by the Tribunals and our courts within 28 to 30 days, and for the Commission to have sufficient time to conduct the forthcoming by-elections. If the constitutional right to challenge the acceptance or rejection of a nomination is respected, it may thus prevent the holding of elections in the districts as the hearing will have to run concurrently with the prescribed period for nominations by ECZ

Your Ladyship, I therefore request that you exercise the power vested in your office, to set up the Tribunals so that they could be ready to perform their task when a petition is lodged before them.

Yours faithfully

Isaac Mwanza

Citizen of the Republic of Zambia

cc: Chief Electoral Officer

Electoral Commission of Zambia

Elections House

LUSAKA