No one has challenged the fact that the Minister can, per Section 56 of the Local Government Act, No. 2 of 2019, suspend the functions of “all councillors.” However, it would appear that a question has arisen with regard to the status of Mayors and Council Chairpersons, as to whether they are councillors or not. We can examine this in form of two questions, which have been raised by some civil society organisations such as Transparency International Zambia and Chapter One Foundation, which are:

1. that the functions of mayors cannot be suspended since they are not councillors and
2.  that Section 56 is unconstitutional as it offends Article 152(2) of the Constitution.

AUTHORITIES

1. Constitution of Zambia, CAP 1, Art. 152, 153, 156
2. Local Government Act No 2 of 2019, Section 56

CASES

1. Christopher Shakafuswa and Isaac Mwanza v. Attorney General and Electoral Commission of Zambia (2018/CC/005)
2. Noel Siamoondo, Kelly Kampianga and Young African Leaders Initiative Ltd v. Electoral Commission of Zambia and Attorney General (CC Selected Judgment No. 24 of 2016).

I propose to deal with the two issues, above, as follows which seem to have been put forward in the following propositions:

1. That the performance of the functions of the Mayor, or Council Chairperson, who are directly elected by the people, cannot be suspended because the Mayor or the Council Chairperson as the case maybe, is not a councillor.

The reasoning is faulty; both the Mayors and the Council Chairpersons are councillors. Being directly elected by the people is not a reason why the functions of the mayor or council chairperson cannot be suspended. It is trite that even Ward-based councillors are also elected directly by the people, therefore the ground that these officials are not amenable to suspension by the Minister, fails since Ward-based Councillors are equally popularly elected.

The question may arise as to how we come to classify our Mayors and Council Chairpersons as councillors?

Article 153 clauses (2) and (4) clearly states [Note the provisions in bold]:

“Article 153
(2)A council shall consist of the following councillors—
(a) persons elected in accordance with clause (1);
(b) a mayor or council chairperson elected in accordance with Article 154; and
(c) not more than three chiefs representing chiefs in the district, elected by the chiefs in the district.

“Article 154(4)
A person qualifies to be elected as a councillor, excluding councillors specified under clause (2)(b),….”

The Constitutional Court in its judgment in the case of Christopher Shakafuswa and Isaac Mwanza v. Attorney General and Electoral Commission of Zambia (2018/CC/005), on pages 25 and 26, clearly stated:

Page 25 of Judgment:

“Article 153 provides for several classes of councillor; we shall confine ourselves only to the two in issue, namely, the ward based councillor provided for in Article 153(2)(a) and the mayor or council chairperson provided for in Article 153 (2)(b).”

Page 26 of Judgment:

“Thus while on the one hand a ward based councillor and a mayor or council chairperson are both councillors, on the other hand a distinction is drawn between them in terms of how a person ascends to one office or the other. Election to the office of mayor or council chairperson is provided for in Article 154.”

This should settle the contention that mayors and council chairpersons are not councillors. Both the Constitution and the Court confirmed that they are indeed councillors. Therefore, being directly elected by the people does not immunise any class of councillor from the disciplinary or other action by the Minister of Local Government. We have already established that Ward-based councillors are also elected directly by the people in their wards.

This now brings us to the question whether the Minister can suspend the performance of functions of all councillors (that is, mayors, ward based councillors and chiefs who sit on the councils).

2. Is Section 56 of the Local Government Act unconstitutional?

“Section 56 of the Act reads as follows:

(1) The Minister may, by reason of the refusal, failure or inability of a council to adequately perform all or any of its functions, by statutory order—
(a) appoint a public officer to be the Local Government Administrator for that council; and
(b) suspend ALL councillors of the council from performing all of their functions as councillors and empower the Local Government Administrator to discharge all the functions of the council.
(2) Any functions of the council discharged by a Local Government Administrator under subsection (1) shall be deemed to have been discharged by the council in accordance with this Act.
(3) The Local Government Administrator shall relinquish office on the lifting of the suspension.”

It is abundantly clear that Section 56(1)(b) above, empowers the Minister to suspend the performance of all functions by ALL councillors.

The correct question then should be, are the councillors (Mayors, Council Chairpersons, Ward based councillors, chiefs in councils) responsible to the Minister for the performance of their duties so that he can suspend such performance?

“Article 156 of the Constitution states as follows:

Councillors shall be collectively and individually accountable to the national Government and residents in their wards and districts, for the performance of their functions.”

Here it is established by the Constitution that in the performance of their functions, councillors (mayors and council Chairmen together with ward based councillors and chiefs who are elected to the council under Article 153(2)(c)) shall be collectively and individually accountable to the national Government. Accountability is a noun derived from the word “accountable” which in law means “responsible to, or answerable”. When the Constitution states that councillors, who include the mayors, are said to be accountable to the National Government, the Constitution is saying councillors understand and accept the consequences of their actions in the performance of their function, collectively and individually.

The Constitutional Court of Zambia commented on both Articles 152 and 156 of the Constitution in the case of Noel Siamoondo, Kelly Kampianga and Young African Leaders Initiative Ltd v. Electoral Commission of Zambia and Attorney General (CC Selected Judgment No. 24 of 2016).

As can be seen on page 9 of the Judgment, the petitioners had argued that “Article 152 proscribes Government and Provincial Government (which comprise the executive) from interfering with the local authority’s ability to perform its functions notwithstanding that local authorities are accountable to the national government under article 156 of the Constitution.”

On Page 24 of the Judgment, the Constitutional Court endorsed the principle of accountability of all councillors to the National Government when the court stated as follows:

“The petitioners…failed to acknowledge that councillors and their respective local authorities fall under the executive arm of government to which they report. Local Government also falls under the Executive to which it is accountable and also reports as provided in articles 151 and 156 of the Constitution.”

In short, the Court clearly stated that all councillors, individually and collectively through their councils, are accountable and report to the National Government. It is trite that councils report to the National Government through the Minister of Local Government.

Conclusion

Section 56 of the Local Government Act has the backing of Article 156 of the Constitution which demands that councillors, collectively and individually, must accept the consequences of their actions and be responsible to the National Government, represented by the Minister of Local Government. As affirmed by the Constitutional Court, Mayors and Council Chairpersons are councillors. The Minister of Local Government has statutory power to suspend the performance of functions of all councillors, as Section 56 of the Act must be read together with Articles 152 and 156 of the Constitution. The Minister of Local Government, therefore, can check the abuse of power and superintend the overall performance of functions by all councillors under the relevant provisions of the Local Government Act, including suspension of the functions of all councillors. When councillors are stopped from performing their functions by the Minister of Local Government, the Minister is by law, required to appoint a Local Government Administrator, to avoid a vacuum in the operations of a local authority.

If, indeed, TI-Zambia and Chapter One Foundation is aggrieved with the decision of the Minister of Local Government and Housing, away from the usual politics, I implore them to challenge his decision in the Constitutional Court. As seen from the above, I can guarantee such a challenge will not yield any different result as the matters already have already been clarified by the Constitutional Court.

(This commentary is rendered by a legal scholar, Isaac Mwanza, who was actively involved and a party in the two cases referred to, before the Constitutional Court. However, Isaac Mwanza does not in any way, represent the position of the National Government. Those seeking a legal opinion can consult the Law Association of Zambia or, better still, approach the Court)

By O’Brien Kaaba and Felicity Kayumba Kalunga

On 16 July 2020, the Electoral Commission of Zambia (ECZ) announced the launch of what it called the “Beta Testing phase of the Online Pre-Registration platform”. The test platform was initially intended to run from 18 to 20 July 2020, but the Commission has since extended it to 25 July. The “actual pre-registration exercise” to be launched in September 2020, would enable eligible voters to submit their details for registration as voters and later collect their voter’s cards from designated centres once voter registration starts. ECZ has not cited any legal provision pursuant to which this process has been implemented and has ignored questions by users of its social media platforms relating to the legality of their action. In this opinion piece, we make two arguments. The first is that the implementation of online voter registration by ECZ is lawless as it is not supported by law. The second is that the adoption and implementation of electoral technology does not solve problems of electoral integrity and, in the case of online voter registration, would compound these problems ahead of the next general election.

The decision by ECZ to implement online voter registration is lawless because there is currently no law which provides for online registration of voters. Being the constitutional body mandated to conduct elections and implement the electoral process, the Commission must execute its mandate in accordance with the provisions of the Constitution and relevant legislation, for these purposes, the Electoral Commission of Zambia Act, No 25 of 2016, the Electoral Process Act, No. 35 of 2016, and the relevant Statutory Instruments (SIs) pursuant to those Acts. These laws set standards which ensure the integrity of the electoral process. For instance, section 4 of the Electoral Commission of Zambia Act mandates ECZ to “direct, supervise and control elections in a fair and impartial manner.” The Electoral Process Act prescribes the manner in which the ECZ should conduct the electoral process. Section 8(2) of the Act provides that “the Commission shall register a person as a voter as prescribed.” The Act, in section 125, prescribes the format which this prescription of voter registration must take, namely, “by statutory instrument.” This clearly shows that rules regulating the conduct of voter registration are formally promulgated by an SI. ECZ has no discretion to act without rules or purport to make them through media statements, ECZ Webpage announcements, or social media platforms as it seems to have done in this instance.

The relevant regulations for registration of voters are the Electoral (Registration of Voters) Regulations of 1973 as amended by SI No. 62 of 2005. Regulations 11 and 12 describe the process by which an eligible voter obtains registration, namely, by making “an application to be registered as a voter to the Registration Officer or the Assistant Registration Officer for the polling district in which the applicant ordinarily resides.” The application for registration must therefore be made to the named officers. This provision does not include an application made to no one in particular and submitted to an online platform. The rationale for submitting the application to the designated officers becomes clear when one reads Regulation 12, which is, to enable the Registration Officer satisfy oneself with the proper identity of the applicant who must prove their identity in the manner prescribed, and that the applicant ordinarily resides in the polling district and is qualified for registration as a voter. Regulation 12(2) prescribes the manner in which an applicant should prove their identity to the registration officer: “by producing to such registration officer a national registration card (NRC) issued to such applicant under the National Registration Act, and no applicant shall be registered unless he [or she] possesses and so produces such national registration card.” The provision clearly requires the applicant to physically present themselves before the registration officer and produce an NRC which must be in the applicant’s possession. It is worth emphasizing here that the Regulations do not provide for production of a copy of the NRC, in whatever format, as a substitute for purposes of proving one’s identity. The online process is therefore not supported by nor can it be inferred from these provisions.

The ECZ has unsuccessfully attempted to evade these mandatory provisions by labelling its service a “pre-registration” service. The problem with this label, however, is that when one reads the detail of what the process seeks to achieve, it becomes clear that the process is actually registration as shown by an explanatory note on ECZ’s online voter registration page (https://eczovr.org/about) which states: “the Commission has introduced an online voter application portal where persons who are eligible to vote will have the opportunity to submit their details and COLLECT their voters’ card at a designated collection center within 24hrs.” ECZ proceeds to outline a four-step process as follows: “Step 1 – sign up; step 2 – select where you will vote from; step 3 – Log into your account and populate required information; and, step 4 – once application is successfully submitted check for the recommended collection centres that you can collect your voters’ card from if your Application is successful.” This four-step process effectively substitutes the voter registration process described under the SI on registration of voters. This is also confirmed by ECZ’s note at the end of the four-step process which encourages applicants to check their account inbox to verify the status of their application before visiting a collection centre. The decision to register the voter will therefore be made based on the information submitted on the online platform before applicants physically present themselves before a registration officer to prove their identity in the prescribed manner. We have therefore used the phrase “online voter registration” to describe the process in this paper, regardless of the labels that ECZ uses.

A purposive reading of the Electoral Process Act suggests that Parliament did not intend for the use of electronic means in the registration of voters. The only instance where electronic means can be used in the electoral process is for transmitting results from polling stations as provided for by section 74 of the Electoral Process Act. This construction is supported by the established principle of statutory construction expressed by the maxim expression unius est exclusion alterius (the expression of one thing is the exclusion of another). This void in the law cannot therefore be filled by simply amending the SI on registration of voters without amending the empowering provision. ECZ has acknowledged this intention of Parliament by proposing to cure it through amending section 74 of the Electoral Process Act to extend the use of digital technology to voter registration using the Electoral Process (Amendment) Bill No. 11 of 2019. We must emphasise here that this process of amendment must precede the implementation of online voter registration as the illegality cannot be cured in retrospect even if Parliament passes the amendment Bill and ECZ subsequently amends the SI. The net result of what ECZ is doing is that it risks undermining the integrity of the electoral process as its actions, be they products of discussions or consensus with relevant stakeholders, amount to lawlessness. The Commission is obliged to act only in accordance with the law that establishes it and where none exists, it is neither empowered nor has discretion to use initiative.

The second issue is that electoral technology by itself is incapable of solving problems about the integrity of the electoral process. There seems to be a deficit of trust in the way ECZ conducts elections considering that presidential elections are routinely disputed and often lead to national tension and distrust. This deficit in trust cannot be cured by ECZ illegally sneaking technological interventions into the electoral process. Collins Odote and Karuti Kanyinga, in a recently published research, have warned that electoral problems in Africa require political solutions rather than technological interventions. They assert that technology is a tool and like any political tool, it tends to reinforce structural positions of those in power. It does not provide a level playing field. This is an apt observation as technology inherently leads to reduced transparency, which entails that unlike a paper based electoral system which leaves a clear and visible trail, the operations of electronic machines are hidden from the sight of the public and not easily discernible without expert knowledge. Democracy scholars, Nic Cheeseman and Brian Klaas, have remarked that “for those countries that have digitised their elections and are doing nothing to protect their systems, it is a matter of when, not if, an election will be compromised.”

There are several examples demonstrating that mere digitisation of the electoral process is not a panacea to electoral integrity and democratization in Africa. Many countries across the continent, for instance, are now using biometric electronic voter registers. This technology has inherent limitations in the sense that multiple registrations (and consequently multiple voting) can only be eliminated if the register is audited and cleaned to remove multiple entries of voters. If this is not done, the technology is of no use, as it may be used to mask electoral malpractices and give a veneer of credibility to an otherwise flawed election. An audit of the Democratic Republic of Congo’s biometric register ahead of the 2011 elections found that there were more than 700,000 double registrations, but electoral officials refused to clean the register on the pretext that they had run out of time.

ECZ proposes to resolve problems in the existing voters’ roll by discarding it and replacing it with a new one which captures approximately nine million voters within an incredibly short period of 30 days and on a tight budget of K100 million out of the budgeted sum of K880 million. ECZ is banking on the use of the online platform to achieve this mammoth task. This undermines the credibility of the electoral process right from the beginning. The Electoral Process Act mandates ECZ to conduct continuous voter registration. ECZ has therefore breached the provisions of the law by not conducting continuous voter registration and preferring this one-month voter registration period. Here again, we see an act of lawlessness from the Commission. This breach of law cannot be fixed by arbitrarily introducing online registration for convenience’s sake. ECZ’s projection of nine million voters is not supported by any scientific information from a census, nor has ECZ disclosed the target population for the process. It is safe to assume that this process is targeted at the sundry population of approximately 9.2 million (approximately 53 per cent) people estimated by the 2019 Annual Report published by ZICTA as having access to the internet. It is problematic to use this estimate for voter registration because the figure is not disaggregated to reflect how many people within it are eligible voters. Further, this estimate represents the urban and peri urban population, people who could easily be captured by the existing facilities for continuous voter registration had ECZ complied with the law on voter registration or maintained the existing register. The ECZ may argue that it lacks the required funds to conduct continuous voter registration but that is not an excuse for abrogating the law. Much in the same way that the Commission is mandated by law to conduct by-elections whenever vacancies occur at local government or parliamentary constituency level, the law imposes an obligation on the ECZ to conduct continuous voter registration. As political historian Sishuwa Sishuwa has recently argued, it does not make sense for the Electoral Commission of Zambia – with only about a year to go before the 2021 general election – to discard the existing voters’ register and create a brand new one when the electoral body lacks both the time and financial resources required to successfully undertake the voter registration exercise. It is fallacious for the Commission to assert that the online registration of voters – which we have already demonstrated is not provided for in the law – would “enhance and quicken the registration process by voters and will serve as an encouragement to the electorate.” In any event, this process will not resolve voter registration problems of the rural population.

The political developments in Africa countries also confirm that electoral technology is being deployed to manipulate the electoral process. Prior to 1990, many African presidents came into office through military coup d’états. During this period, there were 82 successful coups, 109 attempted coups that failed and 145 coup plots that were foiled before being put into effect. However, since 1990, elections have become the standard norm and ritual through which presidents assume office. The decline in military coups is in part attributable to the fact that electoral technology now allows for a much easier way to retain or ‘grab’ power. Professor Paul Collier, for example, has argued that by manipulating the electoral process, instead of resorting to military interventions to retain or win power, African presidents “have discovered a whole armory of technology that enables them to retain power despite the need to hold elections.”
Recent case law relating to disputed presidential elections in Africa also demonstrates that electoral technology may be used to undermine the electoral process. In the case of Raila Amolo Odinga and Another v Independent Electoral and Boundaries Commission and Others Presidential Petition No. 1 of 2017, The Kenyan Supreme Court annulled the country’s 2017 presidential elections on account that the Independent Electoral and Boundaries Commission’s server had been hacked. This led to the infiltration, compromise, and interference with the data. Similarly, in the case of Saulosi Chilima and Lazarus Chakwera v Arthur Mutharika and Others Constitutional Reference No. 1 of 2019 (February 2020), the Malawian Constitutional Court established that the electoral technology was used inordinately and in a manner that compromised the electoral process. The Court heard and accepted evidence that the computerized Electronic Results Management System (eRMS) was compromised due to use of default accounts with multiple passwords on the server which were known by several people within the Electoral Commission. According to the Court, “this opened the eRMS to risk of internal abuse without accountability.” More elaborately, the Court recorded its disapproval in the following terms: “Consequently, we find that the default user accounts presented a risk to the integrity of the eRMS. This detracted from the quality and reliability of the eRMS and qualified as a cause for questioning the final national election result which result was electronically collated and tallied by the system.”

In the light of this significant evidence against the arbitrary implementation of online voter registration, it merits questioning the motives of ECZ in insisting on digitizing the voter registration. One wonders whether the ECZ has sought the advice of its legal counsel or indeed the Attorney General before embarking on this arbitrary process which only serves to undermine the integrity of the electoral process. We illustrate the problems of electoral integrity that would flow from the arbitrary implementation of ECZ’s online voter registration service using only two examples. The first is the direct consequence of lawlessness demonstrated by the absence of standards to govern the process. How would ECZ ensure that people who submit their applications online are who they say they are? The note in the final step of ECZ’s 4-step process published on its website, which requires applicants to present themselves and produce an NRC at the collection center is insufficient as it is simply that – a note. It has no force of law and cannot form the basis to hold ECZ accountable to ensure that the person to whom a voters’ card is issued is a real person. One wonders whether or not ECZ has learnt anything from the recent case of Saulosi Chilima and Lazarus Chakwera v Arthur Mutharika and Others in which the Malawian Constitutional Court annulled the Malawian presidential election and found that the Malawian Electoral Commission had acted dishonestly and incompetently by making arbitrary decisions in implementing the electoral process. The court interpreted the dishonesty and incompetence as a scheme intended to rig the election, stating: “Such height of dishonesty in our view could only be characterized as a suspicious enterprise which was very close to electoral rigging.”

The second example we wish to highlight, which is closely linked to the first, is the lack of a regulatory framework for processing and protecting personal data. There is currently no comprehensive legal framework on data protection and security in Zambia. In the absence of a legal framework, how would ECZ ensure that users of the digital platform are protected from fraudulent use of their personal data by potential hackers? The only semblance of a legal statement accompanying the ECZ online voter registration platform is a note under terms of service in a pop up window which states in part: “The data collected will be stored in encrypted form in a data center located at the Electoral Commission of Zambia. Your details will be kept and updated in accordance with our legal obligations.” These terms do not disclose the applicable law, nor do they explain the vulnerabilities of online voter registration. ECZ also discloses very little information to guide the informed consent of the users of the platform. Online processes which involve collection of personal data should be strictly regulated by law which clearly explains the rights and obligations of the users and providers of the service. The stakes are higher when the law in question is electoral law. The process of law making, through established legal and institutional mechanisms which include extensive research and consultation, ensures that these concerns are addressed. It is insufficient to merely hold consultations and engagements, as alleged by ECZ, outside these legal and institutional safeguards.

In conclusion, we urge the Electoral Commission of Zambia to take its mandate of superintending the electoral process seriously. By exercising its mandate within the parameters of the law, through building consensus among stakeholders, being transparent and accountable, the Commission can be a midwife of free, fair, and genuinely democratic elections. However, by disregarding the law, making arbitrary decisions that negate basic tenets of democracy, lacking in transparency and accountability, the ECZ can easily reduce itself to be a mortuary of Zambia’s democracy. We are not asking for too much but simply restating the basic legal requirements.

• Dr O’Brien Kaaba is an expert on electoral processes and a Lecturer in Constitutional Law at the University of Zambia (UNZA).
• Felicity Kayumba Kalunga is a Lecturer in Constitutional and Administrative Law at UNZA and is currently completing her doctoral studies in constitutional law at Cardiff University in the United Kingdom.