Maravi

Elections and petitions

Elections and petitions
By Editor
Fri 05 Feb. 2010, 04:00 CAT

One of the most serious impediments to the system of democratic governance in Zambia is the unduly long time it takes to determine election petitions. Undoubtedly, the earlier elected persons can, after an election, occupy the positions to which they have been elected, the healthier for the democratic system.

This should be after all the petitions pertaining to their election have been concluded. But in Zambia today, elected persons occupy their positions, are sworn into office even before the petitions against their election have been heard.

In 2008 we had a situation where the winning presidential candidate was sworn in shortly after the results were announced, leaving no time for any petition challenging his election to be heard before he could become president of the Republic. This is not a recipe for peace and stability; it is a recipe for instability and veritable chaos in the nation.

Our system as it stands today does not leave any time for a proper and fair determination of potential election petitions.

While this does not lead to an upheaval in government work, the long drawn-out court challenges may lead to a long period of uncertainty about government and governmental actions.

It is therefore important to pay a lot of attention to the issues being raised by Reverend Pukuta Mwanza, the executive director of the Evangelical Fellowship of Zambia, on the weakenesses of our electoral system and what needs to be done to remedy the situation.

He proposes that the returning officer in the presidential election declare the winning candidate but not swear him in until all contentious issues raised by contenders are cleared by the courts.

This is a very important proposal that those involved with the constitutional review processes should not ignore. We say this because the existing situation where the winning candidate is not only declared but is sworn into office before any petition is concluded amounts in reality to a technical denial of the right of contenders to effectively challenge the results of election they disagree with.

While it is true that there are indefeasible delays in determining election petitions by the judiciary, yet it should be said that even with the best of intentions on all sides, the hearing and determination of election petitions require a considerable length of time in order to achieve proper and fair hearing.

In practice, litigants deliberately slow up trial processes and unduly prolong court proceedings whenever it suits their interests to do so.

We need to find a way out of this constriction in the smooth running of democratic processes. To start with, it is clear that if election timetables are to allow sufficient time for the filing and determination of election petitions, the provisions relating to the dates of elections will have to change.

Moreover, amendments will need to be made to directly curtail the period it takes to determine election petition cases.
There is need to find a balance between statutory provisions that will allow the judiciary to perform its functions properly and, at the same time, eliminate the problem of long drawn-out proceedings in court.

The aim of the electoral system should be to have all election disputes finally resolved well in advance of the date fixed for the commencement of the tenure of those elected.

The setting of the dates for holding elections under our current system makes it impossible to achieve this idea. It is therefore suggested that the Constitution should be amended for the holding of elections not earlier than say 180 days and not later than say 150 days before the commencement of the tenure of those elected.

As for the time it takes to determine election disputes, a reasonable balance must be struck between the present situation where the cases may go on for years before final determination on the one hand and, on the other, unduly constricting the individual’s right to fair hearing.

This will enable the ideal to be achieved, of finally resolving all election disputes at least a week before the commencement of the tenure of those elected. A period of say 120 days would also give the parties sufficient time to adequately present their cases and for the courts to give sufficient consideration to those cases.

The legislation will have to guard against respondents who might try to cause unnecessary delays. Fortunately, under our current system the presidential election petition is heard by the Supreme Court itself so there is no appeal. And other election petitions are heard by the High Court so there is only one appeal in these elections if there is a dispute.

And because of the seriousness of the potential danger which inordinate delays in the determination of election disputes pose to the political stability of the country, the suggestions made by Rev Mwanza should be considered seriously.

Indeed, if Zambia is to operate a meaningful and workable electoral system, these amendments are mandatory. We can well imagine what could happen where an election petition goes against an incumbent president who is in the middle of his term of office and therefore has had a lot of time to entrench himself in that office.

Obviously, the process of removing him and replacing him with another person may lead to a major political crisis, if not worse.

The other issue raised by Rev Mwanza is that of determining the date for elections. This issue has for a long time been a source of concern. Opposition political parties, civil society organisations and the Church have argued that it was difficult to create a sense of preparedness for elections when the date and timetable was only known by those in power, precisely by the president alone.

Some have argued that the president keeps the election date a secret with a view to taking the electorate by surprise. Others perceive the failure to make the election date known as a winning strategy for those in power.

In an effort to address these concerns which were also strongly voiced in submissions to the Electoral Reform Technical Committee (ERTC), a number of recommendations were made.

The ERTC was empowered to solicit the views of stakeholders and concerned citizens and examine and recommend whether the date of general elections, time when or the season during which such elections should be held be specified in the law.

Since independence, the date of elections in Zambia has always only been known by a sitting president until the last minute. Each and every election year, the date of elections becomes a hot issue, raising questions even as to who should announce the date.

The Electoral Commission of Zambia (ECZ) has even been accused of surrendering its mandate of setting the date to the president.

Clearly, the date of elections if announced well in advance as part of the law could serve to promote transparency and fairness in the electoral process.

It would also increase confidence in the process and thereby probably increase voter participation. The suggestion by Rev Mwanza for the election day to be a public holiday may remove the problem workers find in leaving their work stations to go and vote.

And to this effect, the ERTC recommended that the determination of the date of elections be made by the ECZ; the month and week within which presidential and general elections are to be held be enshrined in the Constitution; and that the election day or days be declared a national holiday to allow more people to vote.

It is important to recognise that the more democratic we become, the more conflicts we will have about everything, including elections. This is why it is said that democracy is in many ways nothing more than a set of rules for managing conflict.

At the same time, this conflict must be managed within certain limits and result in compromises, consensus or other agreements that all sides accept as legitimate. An overemphasis on one side of the equation can threaten the entire undertaking.

There is also need for us to realise that democracy is not a machine that runs by itself once the proper principles and procedures are inserted. A democratic society needs the commitment of citizens who accept the inevitability of conflict as well as the necessity for tolerance, for accommodation, for resolution of conflicts.

It is for this reason that the culture of democracy is so important to develop. Democracy is pragmatic. Ideas and solutions to problems are not tested against a rigid outlook but tried in the real world where they can be argued over and changed, accepted or discarded.

Labels: 2011 ELECTIONS, ELECTIONS

posted by MrK @ 5:26 PM