There’s no doubt that the Electoral Commission of Zambia’s online voter registration testing platform is illegal.
It is necessary for the Electoral Commission of Zambia to move with technology but it must be done in a lawful way. This is what the rule of law requires or entails.
Therefore, the best thing that the Electoral Commission of Zambia can do is to admit they are wrong and retreat to lawful ways of voter registration.
In a joint write-up titled, Rule of lawlessness: ECZ, online voter registration and electoral integrity, University of Zambia constitutional law lecturers O’Brien Kaaba and Felicity Kalunga argue that the Commission did not cite any law to support the decision.
“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 duo stated.
“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.”
The lecturers stated further that ECZ should always act within the law to enhance integrity of the electoral process.
“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,” the lecturers stated. “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.”
The duo stated that the electoral Act clearly prescribed the mode of voter registration.
They stated that ECZ, therefore, had no discretion to act outside the law.
“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,” the duo stated. “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’.”
They argued that the application for registration must therefore be made to the named officers.
The lecturers stated that the said provision did 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,” stated the duo. “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 emphasising 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.”
How does the Electoral Commission of Zambia respond to these issues? The best thing they can do is to retreat in best order and do things like legal way.