By Peter Chazya Sinkamba – President of Zambia 2021, Green Party President

So much has been said since Friday concerning the payments I made for my two very good friends, Hon Mwenya Musenge and Hon Stephen Kampyongo to comply with the Concourt order directing former ministers to refund salaries and allowances obtained by these persons for the period that the court found them to have illegally occupied offices between May and August, 2016.

The court has ordered that the refunds should be made by 5th January, 2021. There have been mixed reactions by the members of the public on my gesture to my two friends, with some supporting the move, and others condemning the move, for various reasons. I will attempt to cover some reasons, especially for those against.

From a positive note, I wish to state that I personally do receive presents from friends, in monetary terms and in kind, some of which by far exceed the contributions I made to the two. For example, I remember, some 25 years ago, very close friends facilitated an export permit for 50, 000 metric tonnes of maize to Zaire (now DRC), which enabled me to buy a brand new S-Class Mercedes Benz car 500 series, and houses, at a youthful age. I have also bailed out several friends, workmates and acquittances out of dire financial situations, time and time again, amounts of which by far exceed the amounts in this situation. I have sponsored some friends to travel abroad, at costs which by far exceed the amounts involved in this situation. Those that have benefitted through in the manner highlighted know themselves, and if they wish they can disclose their identities themselves. As a friend, I will not do that, unless with their permission, as I did in this case.

On the negative side, some critics say I should have paid the money to vulnerable persons. But this is exactly what I have done. The money I paid into the government account called Control 99 or in other words, the Consolidated Fund, is used to fund vulnerable persons through the Community Development Department and the Disaster Management and Mitigation Unit. What I note from critics arguing from this premise is that they do not understand that the money paid is not going into the pockets of my dear friends, but government coffers for onward support to vulnerable persons through purchase of medicines, food security packs, fertilizers, seed, etc. in any case, when I want to give directly to vulnerable persons, I do so through the Church. I quite often donate to churches for various vulnerability programmes across the country. Members of churches, and church groups that I have donated to know exactly what I am talking about. Through CBE, I have assisted vulnerable persons having hundreds of houses built for them e.g. the ARMCO resettlement in Mindolo, Kitwe; Zambia Railways and Masondashi Resettlement (also know as Chibolya Resettlement) in Mufulira etc. Others have benefitted through litigation, e.g the Munkulungwe farmers in Bwana Mkubwa in Ndola; Musakashi farmers in Chambishi, Luela farmers in Chambishi etc. The current case of lead poisoning of children in Kabwe by Leighday and Mbuyisa legal teams, commenced in South Africa, is my works starting in 2002.

The other groups of critics argue that I should have paid school fees for university students who have failed to secure scholarships etc. It is wrong to suggest that I do not sponsor students. Since 2000, I have sponsored hundreds of students, through my NGO Citizens for a Better Environment (CBE) to undertake undergraduate, masters, and PhD studies in Zambia and abroad. Some beneficiaries of my CBE programmes are now lecturing at CBU and Copperbelt universities, while others hold very senior positions in government, quasi government institutions, and multilateral institutions operating in Zambia and abroad. In fact, I am currently working on a programme whereby the CBU Business School will run a PhD programme with a university in the Czech Republic. The fact that my CBE academic programme has not benefitted some of critics, or their relations, does not mean that I do not support such programmes. In any case, I can not support every vulnerable persons in the country, and life is not only about supporting vulnerable persons.

Some critics argue that I could have used that money to create jobs for youths. This is exactly what I have done. Some of the funds I paid into Control 99 will be disbursed to support the Ministry of Youths and Sports, which handles youth affairs. In any case, since 2000, I have employed hundreds of graduates who have since move on and are occupying very senior positions at home and abroad. Furthermore, I have since set up the Zambian Hemp Growers and Industries Association (ZAMHEMP), which will soon be employing hundreds of youths in the companies I have created (Copperbelt Hemp Company; Luapula Hemp Company; Northern Hemp Company; Lusaka Hemp Company; Western Hemp Company; Eastern Hemp Company; Northwest Hemp Company; and Central Hemp Company). These companies will be fully functional in February 2021 after the enactment of the Industrial Hemp Bill and the Controlled Substances Bill. A spectrum of youths will be employed, including the uneducated, the school leavers, college and university graduates.

The bottom line is that courts and court orders must be respected and obeyed. The court of public opinion has been extremely harsh with the Constitutional Court. This court has suffered a reputation crisis, essentially, due to three cases: this case of former ministers who illegally stayed in office; the presidential petition; and the so called “eligibility” case. Whilst there is closure with the petition case, the other two, including the case of ministers, are yet to be closed. For the sake of rebuilding and refurbishing, it is imperative that these cases are brought to closure as soon as possible. It will be a terrible mistake to continue with these cases into the next election. Hence, I have demonstrated leadership by not only talking to my friends to pay, but also contributing to the payment, so that come January 5th 2021, their names will not be on the list of persons who disobeyed a court order.

Lastly, there is a group questioning whether the two cannot pay. This argument is neither here nor there. We buy friends drinks or meals, not because they cant pay for them. We give or buy all sorts of presents for friends not because they cannot buy those things. Friendship is beyond affordability by the other party, but how much you value their integrity and person.

Hopefully this brief explanation suffices….but you are free to ask where you are not clear!

As Zambia goes to the polls in the next few months, the focus by the International Community and other local stakeholders has been on registration of voters, a process which is going into the 31st day following the 4- day extension announced by the Electoral Commission of Zambia on Tuesday, 15th December, 2020.

Both Secretary General of the ruling Patriotic Front Davis Mwila and leader for United Party for National Development Hakainde Hichilema have reacted to the announcement by the Commission.

We have closely monitored the numbers of citizens who have registered but we have also noted the new timelines given by the Commission to this process. We understand the terrain across the country and the sentiments among the millions who have registered. We probably can predict with accuracy how this election will be won by the winners and lost by the losers from our interaction with many registered voters. But that is the reflection for another day. Here we are concerned with the management of voter registration and the new timelines.

The debate that the Commission should have conducted continuous registration of voters is plausible, on face value, in terms of the provisions of Section 7 of the Electoral Process Act, No. 35 of 2016 which reads: “The Commission shall conduct a continuous registration of voters.”

However, as opposed to using the word “continuous,” Article 229(2)(c) of Constitution of Zambia simply states that the Electoral Commission shall register voters” while Section 4(2)(d) of the Electoral Commission Act No. 25 of 2016 only says, the function of the Commission “are to supervise and control the registration of voters for the purposes of an election.” As to which provision of the law should be emphasised, we shall leave this matter to the Constitutional Court to give its guidance.

While we are confident that our Constitutional Court will give the guidance the Country seeks, we would caution that on one or two occasions, our Constitutional Court has given guidance which raises new questions rather settle old questions definitively.

We have in mind that this very Court upheld the post-1996 custom in which Ministers vacate office upon dissolution of Parliament, against a clear provision in Article 116(3)(e) of the Constitution which expressly allows Ministers to stay in office until another person assumes the office of President.

Secondly, there were sanctions already prescribed for ministers who abused public resources in the course of political campaigns, which was the main point of contention which led to demands that ministers should not continue in office so that they do not take advantage of their incumbency to use public resources for their political party campaigns.

We have also seen the Court uphold the ECZ’s unilateral decision to require candidates for local government elections, to produce letters of adoption from political parties even though the constitution does not require it. More recently, the court held that a sitting councillor who aspired to stand for election to the post of Mayor, could not do so because such a councillor would be creating a vacancy for a by-election and would therefore be disqualified. We found this decision of the Constitutional Court quite puzzling.

However, on this occasion, we will not prejudice the court with our trepidation and we look forward to seeing how the Court will reconcile the Electoral Process Act to the Constitution and the Electoral Commission Act.

Another issue that has come up repeatedly is the discarding of the current register of voters by the Commission. The register which is being discarded was established in 2005 using optical character recognition (OCR) technology and was updated in 2011 using a biometric voter registration system based on thumbprint capture and facial portrait. The discarding of the 2005 register has been argued as an attempt by the Commission to “disfranchise” those who were on that register as some stakeholders had anticipated a far smaller number of eligible voters registering during the 30-day period.

Again, our position is that the law expressly allows the Commission to technically remove one or all voters in the register and replace them with those who qualify to vote under newly prescribed conditions. The authority for ECZ to deregister all voters from the 2005 register is given in Section 10(b) as read together with Section 8(2) of the Electoral Process Act.
The newly prescribed condition for voters on the register is that they must have the 10 fingerprints captured. This technically removes or lawfully deregisters everyone who was registered in 2005 to 2016 if they no longer meet the criteria or qualifications for registration as prescribed by the Commission.

Before we leave this topic, we want to join Zambians who have commended the Commission for registering more than 6.4 million voters within 30 days. This number shows Zambia is ready to, once again, have a competitive election in 2021, even if the Commission had not given any further extension. However, our projection is that the Commission will register around 7.4 million voters at the end of the registration period on Sunday.

Finally, we note the key timelines given by the Commission. We are dissatisfied with these timelines because they do not support the spirit of both the Constitution and the electoral law itself.

The Commission has said it will consolidate a provisional register which will be published for 21 days from 1st March 2021 to 21 March 2021. The law anticipates that such a provisional register should be available for a minimum of 90 days. The importance of the provisional register lies in the provisions of Section 17 of the Electoral Process Act.

That part of the Act gives a person who had registered “up to ninety days’ of the publication of the Provisional Register of Voters” to object to an error or omission regarding the person’s details as they appear on the provisional register. During this period, a person can also make objections regarding the registration details of another person.

For instance, if EEP leader Chilufya Tayali, has objections against the registration details of UPND President Mr. Hakainde Hichilema, this is the period during which he can raise an objection against the registration of Mr. Hichilema as a voter as well as to serve notice of the objection on that person.

The Commission equally has 14 days to consider the objection against the person’s details or any other objection against registering anyone as a voter. Once the decision is made and communicated to the registration officer, such an officer is required to, within three days of the decision, give effect to a decision of the Commission. Legally, the 21 days for ECZ to have the provisional register is not based on any law and is ultra vires Section 17 of the Electoral Process Act.

The decision to appoint 14 – 18 June, 2021 for Presidential nomination is against the spirit of Article 52 of the Constitution, in the event that anyone decides to challenge the nomination, as we have been hearing, of Edgar Lungu, Hakainde Hichilema and Chishimba Kambwili, which may take place on the 18th June, 2021. Article 52(4) mandatorily requires that 30 days before the election, there must be no pending matter in Court. This means, between 11th July, 2021 and 12th August, 2021, all petitions should have been concluded.

But a petition filed on the 7th day after 18th June, 2021 and heard within 21 days would go upto the 16th July, 2021, in the worst case and in considering our adversarial system of justice system.

In view of the above observations, the Commission should revise the dates further to ensure respect for the 90 days in which the provisional register should be in the public domain as well as revise dates for nominations to give room to the court processes.