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The perspective, by Edward Bwalya Phiri: election petitions fortify the polls, exemplify democracy

On August 24, 2013, a renowned UK business magnate, John Lewis enunciated that, “The vote is precious. It is almost sacred. It’s the most powerful non-violent tool we have in a democratic society and we have got to use it.” And former Attorney General of the United States, Caleb Cushing once opined that, “The right to petition, I have said, was not conferred on the people by the constitution, but was a pre-existing right, reserved by the people out of the grants of power made to congress.”

On The Perspective today, focus is on election petitions. And as a legal action, a petition has been defined by the Oxford University Press [2007] as, “an official document asking a court to take a particular course of action.” In this case, a person or persons with sufficient locus standi in the electoral process can file a petition in the courts of law, so that an election of a particular person is nullified for electoral malpractice.

The question of whether or not this legal avenue is explored depends so much on the quality and credibility of the process. Therefore, election petitions are a legal right, just as the right to participate in the governance of the country.

According to Article 21(1) and (3) of the Universal Declaration of Human Rights [UDHR] 1948, “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives…. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

It is therefore trite that each and every election that is held to choose the people’s representatives must fulfill the parameters set above. In other words, every election must be free and fair, anything short of that will be a breach of people’s rights and they will be justified to declare a dispute whose only recourse lies in the courts of law.
It is provided in Article 7 (1) of the African (Banjul) Charter on Human and Peoples’ Rights [ACHPR] 1981 that, “Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force….” And the Constitution [Amendment] Act no.2 of 2016 in Article 103, 73, and 159 provides for election petitions for; Presidential, Parliamentary and local Government elections.

Further, section 98 of the Electoral Process Act no.35 of 2016 specifies categories of individuals who can file a petition in a disputed election as follows, “An election petition may be presented to the High Court or a tribunal by one or more of the following persons: (a) a person who lawfully voted or had a right to vote at the election to which the election petition relates; (b) a person claiming to have had a right to be nominated as a candidate or elected at the election to which the election petition relates; (c) a person claiming to have been a candidate at the election to which the election petition relates; and (d) the Attorney General.”

Arising from the foregoing provisions of the law, it is clear that a petition is not only a recourse to disputes arising from the actual polls, but the whole electoral process. Once a petition is filed, the court will proceed and hear the merits of the dispute. If and when the petitioner/s successfully makes out their case, the election of the elected candidate in question will be nullified. This will subsequently lead to new polls [by-elections] being conducted by the electoral body.

In a democratic dispensation, election petitions operate as a safety valve in the electoral process. In a way, petitions are a guarantee for free and fair elections. Any suspicion to the contrary will call for a petition to check both the quality and credibility of the elections. Section 2 of The Electoral Code of Conduct 2016, stipulates that, “A person shall, during an election campaign or election, promote conditions conducive to the conduct of free and fair elections and be bound by this Code.”

On August 12, 2021 Zambia went to the polls and subsequently experienced a change of government, from the incumbent Patriotic Front [PF] to the United Party for National Development [UPND] Alliance. The aftermath of the elections saw a plethora of election petitions being filed in the courts of law by losing candidates in the parliamentary, mayoral/council chairperson and ward councillor elections.

Subsequently, a cross-section of society has expressed mixed feelings over this development. Therefore, this write up seeks to allay all the fears that have arisen in the wake of these petitions. Some people have called it a drain on national coffers, mainly due to the imminent by-elections that are estimated at K5 million for each seat, and have suggested that instead of wasting money on b-y-elections, it can be used on more important economic activities.

First and foremost, it has to be appreciated that a good leadership is indispensable to a healthy societal, moral fibre and is a prerequisite for development of the nation. It is a fact that it is the leaders who will set the pace and tone of our peace and unity, determine the quality of life and both policies and laws will just be a reflection of their calibre. Obviously we have object lessons from the immediate past regime and its members, some of whom have their elections being petitioned.

It therefore goes without saying that elections are so important that they cannot be left to chance, and electoral malpractices must be corrected immediately after being noticed, so as to prevent them from recurring. Renown teacher of Buddhist meditation practices and a new York Times bestselling author, Sharon Salzburg, once said that, “Voting is the expression of our commitment to ourselves, one another, this country, and the world.”

Therefore, a once off by-election expenditure is by far a better option, than having a member of parliament [MP] with a questionable character, who will not only be a perennial drain on the national coffers, but also on the moral fibre of society. Martin Luther King Jr., “And so we shall have to do more than just register and more than vote; we shall have to create leaders who embody virtues we can respect, who have moral and ethical principles we can applaud with enthusiasm.”

And there are still others who have dubbed the current situation as a threat to democracy, fearing that Zambia may slide into a one party state by killing the opposition, implying a de facto one party state, as opposed to a de jure one party state as the case was in the second Republic of Zambia.

It is trite, and it must be emphasised that the basis for political authority is the people’s will. Therefore, you cannot in the name of democracy allow unscrupulous individuals who have manipulated and usurped the people’s power to continue holding public office. I wonder what kind of democracy that is. Let the courts clear them and if found wanting, they must be removed.

If and when by-elections are conducted, the will of the people will prevail. If they will choose a De facto one party state, so be it, because democracy is all about consensus. Off course, each and every process has both the pros and cons, but the merits of petitions by far outweigh their demerits.

In conclusion, the issue of whether one petitions, or not is an individual’s right and depends on one’s conviction. Therefore, the idea of a political party compelling its members to either encourage or discourage them from petitioning should not arise.

For today I will end here; it’s Au revoir, from EBP.

For comments: elbardogma@yahoo.com

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