Will the Zambian poll results trigger a constitutional crisis?

Zambia’s main opposition party filed a petition in the Constitutional Court challenging the validity of the recent election results.

The results of Zambia’s historic five-ballot election are threatening to plunge the country into a constitutional crisis. Last week, the opposition filed a petition in the Constitutional Court challenging the validity of the results. The poll was a crucial test for Zambia’s new constitution, which was amended and adopted earlier this year.

President Edgar Lungu’s victory, which came after an election campaign tainted by violence, intimidation and a conspicuous bias in favour of the ruling party in public media, has triggered contention over who should run the country. Lungu has yet to be sworn in as Zambia’s president. This is because of a constitutional provision that requires that an incumbent or president-elect should not exercise executive powers once a legal petition is filed challenging their election.

The opposition United Party for National Development (UPND) filed a petition challenging the outcomes of the national poll. The UPND cited gross irregularities and electoral malpractices on the part of the Electoral Commission of Zambia (ECZ); alleging that the ECZ was compromised after coming under pressure from the ruling Patriotic Front (PF).

While the country’s new constitution stipulates that the Constitutional Court should hear presidential electoral petitions within 14 days, there is no stipulated timeframe for the verdict. There is also political uncertainty with regards to the formation of government, and ambiguity over the future of the referendum process.

The poll was a crucial test for Zambia’s new constitution

Zambians went to the polls on 11 August to elect the country’s president, members of Parliament, mayors and councillors. Alongside the poll was a fifth ballot; a national referendum on the Bill of Rights. Zambians had to choose whether Parliament could amend Part Three of its constitution, which deals with individual, civic and political rights, as well as the extent to which government can encroach on these.

Civil society organisations and opposition parties critiqued the timing of the referendum, arguing that Zambians needed better sensitisation about the implications. In the end, the referendum vote failed to meet the required threshold of 50% in support, thereby essentially invalidating it.

The electoral result also risks invalidation. The new electoral system requires that the winning presidential candidate must receive more than 50% of the valid votes cast. The ECZ declared President Lungu of the PF as the president elect with 50.35% of the total valid votes cast. He scored 1 860 877 out of a total of 3 695 710 votes, winning by a difference of 13 022 votes. His closest rival, Hakainde Hichilema from the opposition UPND, got 47.6%. Lungu was announced as the winner by the ECZ, and the ECZ declared that there was no need for a presidential run-off.

Despite the ECZ’s announcement of the final results, any party may challenge these in the Constitutional Court. It has powers to nullify or re-affirm the result based on evidence given to it. The 13-member court is new: it was created in March 2016 to hear electoral disputes, and its judgments cannot be appealed. Its credibility will be tested with perceptions that its deputy, Mugeni Mulenga, is biased towards Lungu. Mulenga is related to Lungu through marriage – but these perceptions are perhaps unwarranted given that the court comprises 12 other judges, who are not linked to the president.

The petition seeks to compel an order for the votes to be recounted

For Hichilema, the challenge to Lungu’s marginal win arguably has a personal element to it: the opposition leader is losing the presidential race for the fifth time. In the last presidential race in 2015, Lungu beat him by a 2% margin of 27 000 votes.

The PF also secured the most parliamentary seats, winning about 85 constituencies out of a total of 156 constituency-based seats. The UPND came second with 58; the Movement for Multiparty Democracy (MMD) third with two seats; and 10 went to independent candidates. This configuration gives the PF an upper hand in the legislature.

The 2011 election results, by comparison, had produced a hung Parliament – with the configuration tilting in favour of the opposition. In that election, the PF had won 60 seats, followed by the opposition MMD with 55; and the UPND with 28. Independent candidates had three seats each. It must be understood that, politically, the PF’s traditional strongholds represent a majority in terms of constituencies, with 91 against 65 for the opposition.

In the new parliamentary configuration, the PF does not have an absolute majority – but its MPs far outnumber the opposition. All opposition parties that challenged Lungu for the presidency have rejected the results; the only exception being one of the eight parties accepting them publically – a small, new party called the Green Party.

Lungu’s refusal to vacate office has been divisive because his victory was marginal

Thus far, the UPND is the only party to take their petition to court. Hichilema and his running mate, former defence minister and former PF member Geoffrey Bwalya Mwamba, have logged a petition challenging the validity of the results with the Constitutional Court. They claim to have evidence that would point to gross irregularities in the process, including discrepancies both in the vote count and the results issued at ECZ’s totalling centre; instances where there was a higher number of votes cast than people registered on the voter’s roll; and pre-marked ballot papers allegedly found outside the Zambian Air Force headquarters in Lusaka.

The petition mainly seeks to compel an order for the result to be nullified and the votes recounted. Other complaints in the petition relate to procedural issues – for instance that the voter register was not credible, and that its lack of availability before the election compromised its transparency.

The UPND has also asked for an interlocutory relief (something that can be done while the case is in process), which would see Lungu stepping down to allow the Speaker of Parliament to take over as acting president while the case is being heard.

The legal standoff has created political uncertainty in Zambia and has the potential to trigger a constitutional crisis on several grounds. The first concerns the notion that Lungu should vacate office for an interim period and hand over power to the Speaker of Parliament, Patrick Matibini. Cases where the electoral outcome is petitioned in the courts are dealt with in Article 104 (3) of the country’s constitution.

Lungu has refused to vacate office, with his spokesperson stating that there is no constitutional provision for the parliamentary speaker to serve as acting president in the current situation. Their argument is that the articles did not make such provision, but that it only arose in the event of a re-run or in cases where none of the candidates met the 50% +1 threshold. The Constitutional Court has also been asked to interpret this and rule on the issue as a matter of urgency.

The opposition contends that Lungu has no mandate to run the country for now

While the case is in the courts, Lungu’s refusal to vacate office has been divisive mainly because his victory is marginal, and almost half the country voted for the opposition candidate. Violence broke out in opposition strongholds following the announcement of the results; and the opposition and its supporters contend that Lungu has no mandate to run the country for now.

Related to this is a second constitutional dilemma regarding the exercise of executive authority by the president elect. If the Constitutional Court rules that Lungu’s presidency is indeed illegitimate while the petitions are being considered, would it mean that whatever decisions he makes are invalid? And what implications would this have in terms of upholding the country’s rule of law?

The third issue relates to how these developments would impact on processes relating to amending the Bill of Rights. It is important to note that beyond simply holding the referendum, the process did not have a clear legal framework either.

Both the constitutional uncertainty and the future of the referendum process therefore demonstrate that the country’s new electoral and constitutional systems have imperfections and inefficiencies that can be taken advantage of. But, they also demonstrate the potential for correcting them legally and procedurally, thereby potentially strengthening trust in and the effectiveness of the country’s democratic institutions.

Dimpho Motsamai, Senior Researcher, Conflict Prevention and Risk Analysis, ISS Pretoria

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