Maravi

Turning to the courts for fair elections

Turning to the courts for fair elections
By The Post
Sun 27 Nov. 2011, 12:00 CAT

Seventy-three parliamentary election petitions to be concluded within 100 days is a big challenge for our courts of law. But we are not the only ones in this situation. Uganda had 110 parliamentary election petitions arising from of the elections that were held in February this year.

These petitions resulted in several Ugandan members of parliament, including former vice-president Gilbert Bukenya, being thrown out of parliament especially on the basis of bribing voters. During the Ugandan presidential campaigns and elections, which took place simultaneously with the parliamentary elections, voter bribery was the most decried malpractice.

In the middle of the campaign, the government passed an unprecedented supplementary budget, most of which is thought to have been spent on funding President Yoweri Museveni's re-election.

The nullification of the election of several parliamentary seats, most of them belonging to Museveni's ruling NRM raises important questions. Were Uganda's 2011 elections more rigged than previous ones? If the parliamentary elections which took place on the same day as the presidential election were rigged, did the parliamentary candidates rig only for themselves and not for their presidential candidate? Have petitioners become more knowledgeable in the areas of collecting evidence and filing petitions? Or have the judges now become more willing to entertain election petitions?

Kampala lawyer and opposition FDC deputy-president for central region Yusuf Nsibambi, who was part of opposition leader Dr Kizza Besigye's election petition teams in 2001 and 2006, says all the above arguments could be true but the best bet is the fourth one. He argues that Ugandan judges have this time resorted to "judicial activism to put some bit of sanity back into society". He says the judges are also part of the Ugandan society and have seen how the situation has deteriorated.

Accordingly, Nsibambi argues that the judges are now more willing to rule against election irregularities "than it has ever been the case in order to stem the practice of rigging". If Nsibambi is right about the change of heart among the Ugandan judges, then his boss, Dr Besigye was probably wrong to rule out returning to the courts despite alleging that the February election was massively stolen. Nsibambi says in the past, judges appeared more reluctant to annul blatantly rigged elections, sometimes due to technicalities and the difficulty involved in proving some allegations, like those related to bribery. "You prove that a voter was beaten up and driven out of a polling station and court accepts a submission by the defence that that was one vote lost," says Nsibambi. In such a case, he argues, the court would have failed to take into account the likely effect of such acts like intimidation in relation, for example, to how many more voters could have been turned away or how many would have changed their minds on who to vote for as a result of one of them being beaten up. The Ugandan courts seemed to have answered Nsibambi's prayer this time.

But what Nsibambi sees as a healthy change of heart on the part of judges is viewed by the ruling party politicians who have fallen prey to the judicial decisions as a tendency for judges to favour the opposition. The issue of judges determining election petitions on the basis of their political inclinations was handled, albeit inconclusively, by former Ugandan Supreme Court justice Professor George Kanyeihamba in his 2006 ruling arising out of the petition Dr Besigye filed against Museveni's re-election when he ruled that all the petitioner has to prove is that there was rigging or non-compliance with the Act. Otherwise, the justices would be tempted to determine the part concerning whether the results were significantly affected by the rigging basing on their inclinations toward the candidate's concerns.

There is a lot our judges, and indeed our politicians, can learn from the Ugandan election petitions. We agree with Chief Justice Ernest Sakala's directive to judges not to misdirect themselves when presiding over election petition matters to avoid embarrassment. But the primary concern should not be the avoidance of embarrassment but the delivery of justice that is of acceptable standards. If this is left to the issue of embarrassment, our judiciary does not seem to worry much about embarrassment. This is a judiciary that doesn't seem to be embarrassed by its poor decisions. There are many examples of very poor and potentially embarrassing decisions that our judiciary has not bothered much about. We have the jailing by the Supreme Court of Lusaka lawyer Nsuka Sambo. Some of our judges were not even embarrassed to brag about it at regional meetings of judges. They were boasting of flexing their muscle. What about the judgments in the Frederick Chiluba cases? Who has been embarrassed by them? What about the many highly questionable and embarrassing pro-government decisions that they have taken? Ours seems to be a judiciary that has a policy of not ruling against the government or those in power, save for rare moments.

These petitions will definitely be a good test of the capacity, fairness and integrity of our judiciary. These are very important cases - all of them. They will help the country improve its electoral system and practices. It will help the Electoral Commission of Zambia to put an end to the organisation and conduct of elections that are not free and fair. This may put an end to election petitions in 2016 because it will push the Electoral Commission of Zambia to improve its organisation and conduct of elections. We have countries that have perfected their electoral processes to such very high levels of fairness and transparency, making it very difficult for anyone to petition an election by ensuring that elections were won at the polling stations instead of the courts. There is need for our people to choose their political leaders through free and fair elections. The Electoral Commission of Zambia needs to do a lot of work to ensure that it follows the same path with Britain that has recorded only one election petition case for a period of 99 years.

These costly election petitions can be avoided by simply getting the Electoral Commission of Zambia to do a good job and ensure that candidates and their supporters follow the requirements of the law. As things stand right now, the Electoral Commission of Zambia has very little control over the way our elections are conducted. It is the party in power that is in effect running our elections through the ministries of Local Government and Home Affairs. We need a truly independent and well resourced Electoral Commission to avoid these costly election petitions. But for now, we are all looking up to the courts to set the standards that will be required for our elections to pass the test of being free and fair. It is the duty of our courts, in these petitions, to stamp out electoral malpractices, including the bribing of voters.

Labels: ELECTIONS

posted by MrK @ 7:45 PM