There is no reason whatsoever why theft of an election in any country, through rigging, with incontrovertible evidence proving same, should not attract the charge of treason.
In the case of Zambia, the parent charge of treason is under Section 43 of the Penal Code. Analogous sections of this are found in other countries’ criminal statutes. Stealing an election through rigging involves an unlawful, illegal and massive unconstitutional violations of the constitutional and electoral laws of the country to alter the coming into power of a legitimate government chosen by the people. Theft of an election is a fraudulent usurpation of power by an illegitimate government that has been turfed out of power by the country’s voters. It is a coup d’état to unconstitutionally and illegally cling to power by the incumbent government. The fact that there is initially no violence, a term which is used interminably in Section 43 of the Penal Code, is immaterial as violence is embedded in the very act and fact of rigging an election. Violence is part of the plan to enforce the acquiescence of the population should the rigging be exposed and fought against. And violence can consume the nation in the aftermath of a rigged election as we saw in Ivory Coast, Kenya (2007/08) and elsewhere.
In the case of Zambia, individuals were arrested and accused/charged of fomenting violence by trying to resist and expose evidence of rigging. Thus violence is implicated and is part of overt acts in the enforcement of rigging an election.
In the Edward Shamwana treason case in Zambia, no violence was actually used, but it was part of the plan and even though no violence was used, Shamwana and others were convicted of treason. Those who know about the plan to illegally overthrow the government but who don’t divulge those plans to the authorities can be convicted of misprision of treason. In the case of election theft through rigging, many people would directly or circumstantially have knowledge that rigging is underway. The result of election theft by rigging is that you have an illegitimate government that does not have the mandate to rule just as you would have a government that took power by force. There is no difference.
Election theft by rigging has grevious aggravating factors and must constitute treason. A coterie of individuals with planning and deliberation aforethought, sometimes over a lengthy period of time, organize to engage in the overt and covert actus reus (action) with requisite mens rea (intention) to violate the constitution and electoral laws of their country. Some of these individuals who participate in the conspiracy to violate the constitution and electoral laws of the country, would have sworn on the Holy Book to follow and uphold the constitution and laws of the country. But here they are, violating the very oath, constitution and laws they had sworn to abide by and enforce. There can be no greater betrayal of the constitution and laws of the country than what is involved in election theft by rigging. This is treason.
Theft of an election by rigging engages the coincidence of actus reus (the doing) and mens rea (intention) to violate the law and is complex. It is not as inept as Captain Solo waking up one day and deciding that he was going to have fun that day at the main radio station! Rigging can be sophisticated and involves many people: the army, the airforce, the police, ministries, civil servants, the judiciary, the presidency, diplomats, banks, immigration, transporters, printers , newspapers and many other entities and institutions. Sometimes it involves the registration of foreign voters by issuing them the country’s primary identity cards like National Registration Cards. It involves conniving with foreigners to print ballot papers, some of which are pre-marked or that are easy to manipulate. Rigging involves training and facilitating individuals, sometimes foreigners to manipulate computers and election technologies in favour of the regime in power to enable it to cling on to power. Theft of an election involves stationing cadres at voting points to intimidate and engage in violence against election monitors or the opposition. Theft of an election by rigging involves destroying the opposition’s votes and inflating those of the party in power. Election theft by rigging involves using the army and police and government ministries and infrastructure to deprive the citizens of the benefit of installing a legitimate government of their choice. This is as treasonous as it gets. Theft of an election through rigging must be criminalized as an act of treason. That should act as deterrence.
Dr. Munyonzwe Hamalengwa is a Senior Lecturer in Law where he teaches Criminal Law and other subjects.