by Dimpho Motsamai *
1. Background
Zambia’s legal and electoral reform
process and record is exceedingly complex and mixed. Successive governments
have taken up reform initiatives since the return of multiparty politics in
1991, with limited success. The country heads to the polls in 2016 amid an
ongoing constitution-making process. A draft constitution was recently made public in
August of this year following several months of impasse. An amendment bill has
since been tabled in parliament.[1] The amendment bill only pertains to sections in the document regarded as “non-contentious.”
The remainder of the document will be put before a national referendum for
approval.
The last major legal and electoral reforms
in Zambia were conducted in 2006. They were triggered by various concerns from
political parties, civil society organisations (CSOs), and donors regarding
shortfalls in the prevailing framework. Complaints
were lodged after a contested landslide victory of the winning candidate with 29
percent of the overall vote compared to the 27 percent received by his rival in
the 2001 election. At the backdrop of these complaints, President Mwanawasa
from the ruling Movement for Multi-party Democracy (MMD), appointed the Electoral
Reform Technical Committee (ERTC) and the Mung’omba Constitution Review
Commission (CRC) to review the electoral and constitutional frameworks,
respectively.[2]
The ERTC was constituted in 2003.
According to its terms of reference, it had to: analyse and make recommendations
regarding the legal electoral framework; examine legislation that impacts the
electoral system; and make recommendations on amendments in line with Zambia’s
legal requirements for the conduct of democratic elections.[3] The ERTC was comprised of 25 representatives from
various organisations involved in the conduct of elections, including four
representatives from the Law Association of Zambia; three from the Electoral
Commission of Zambia (ECZ) and the Local Government Association; two from the
Zambian Police Service, the University of Zambia, CSOs and the media; and one representative
each from the Office of the President, the Vice-President, the National
Economic Advisory Council, the Cabinet Office, the Ministry of Finance and the
Ministry of Justice. The ERTC released
its final report in July 2005.
The report’s recommendations were categorized
into two sections. The first concerned proposals or issues that had a
constitutional bearing. The second category regarded issues that did not border
on amending the constitution. The Ministry of Justice compiled
non-constitutional recommendations that were translated into the Electoral Act
of 2006. The Justice ministry decided that the remaining recommendations that
required constitutional amendment would be deferred to the committee presiding over
constitutional revision. These included proposals to change the electoral model
and institutionalizing
the independence of the ECZ. Moreover, the report highlighted what it referred to
as ‘contentious issues’ in Zambia’s electoral framework. They included the “50 plus one”
clause, which requires the winner of presidential elections not to just win the
most votes, but to secure a simple majority. The transitional period for an incoming
president, repealing the Public Order Act, revising the parental clause, and
the legal requirements for election petitions were also among the issues listed.[4]
It is important to highlight that the
processes of the ERTC and the Mung’omba Constitution Review Commission ran
concurrently. The latter’s report was
released in December 2005 along with a draft constitution. A National Constitutional Conference (NCC) was subsequently appointed in
2007 by then-President Levy Mwanawasa to review the CRC draft. But, the process
was hamstrung from the beginning. CSOs and the opposition challenged its
composition alleging that it was ‘MMD heavy’ and unrepresentative. The NCC was then
boycotted by the Patriotic Front (PF), one of the major opposition parties.
These groups also raised reservations
concerning the substance of the CRC’s draft. It was critiqued for omitting important
clauses, such as the inclusion of social and economic rights in the Bill of
Rights and the requirement that the president be elected by 50 percent plus one
of votes cast. Nonetheless, the NCC submitted its draft constitution in August
2010. It was presented to parliament the following year. But the entire process
collapsed when the Constitution Bill was tabled for legislation. The majority
of opposition MPs abstained from the vote and it became impossible for the ruling
MMD to get the two-thirds majority required to move ahead with the new
constitution. The entire exercise had taken eight years and failed to reach a
conclusion.
A newly installed PF government resuscitated the
constitutional review process in 2011. But
it has also stalled and was yet to be concluded at the time of writing.[5] In essence, there has been no major progress on legal and electoral reform
between 2006 and 2015, mainly because of the inability to complete the
constitutional review process.[6] Additionally, the drafting of a constitution
in Zambia has been a political rather than a legal process.
2. EMB role
The ECZ was founded in 1996 as an independent and
autonomous body responsible for managing the country’s electoral processes. It
is established under Article 76 of the Zambian Constitution, which outlines its
mandate.[7] Accordingly, it is to conduct and supervise the country’s presidential and
parliamentary elections, the registration of voters, and review Zambia’s
electoral boundaries. The ECZ is also guided by the Electoral Commission Act
No. 24 of 1996. The Act provides for its composition, the appointment and
tenure of its commissioners, financial regulation, and matters connected to its
administration. An additional piece of legislation, the Local Government Elections
Act of 1997, gave it powers to conduct local government elections.[8] In addition to its constitutional functions, the
Commission has several statutory tasks to perform. They include: voter education, conducting referenda,
formulating and reviewing electoral regulations, resolving election disputes,
and performing other statutory functions that may be required by parliament.
However, the Commission’s role in
conducting legal and electoral reforms is not elaborated in the constitution or
in existing electoral legislation. This means it has no formal mandate to fulfill
this task. It does have administrative and regulatory powers to initiate
legislation pertaining to the conduct of elections. But this is only in the form of statutory
instruments like the electoral code of conduct and conflict management
regulations. The ECZ can perform this task any time during the electoral cycle.
The ECZ’s legal department supports it by
carrying out legal and other related research. But the department is small – it
is currently comprised of three lawyers. In practice, the engagement of the ECZ
in electoral law reform is consultative and ad hoc in nature. This is best illustrated by the degree of
participation of its commissioners in past review committees. They mostly provided
input only at the invitation of the committees, and the number of ECZ officials that participated was very low.
Another restriction on the ECZ is that it
cannot initiate and draft electoral bills independently and take them to
parliament. It relies on the executive through the Ministry of Justice to do
this. The Commission can make legal and
policy recommendations to the ministry, but the ministry exercises discretion
over what it chooses to take on board. [9]>
Lastly, the ECZ does not have autonomous funding and depends heavily on the
executive for its operational budget. Because it has no formal mandate to
review electoral legislation, most activities in this area are simply not
budgeted for. The Ministry of Finance has
control over the release of its financial appropriations, possibly creating
policy and administrative uncertainty.
3. EMB
approaches
Activities
Although the ECZ does not have a formal mandate to conduct electoral
reform, it has actively spearheaded the revision of various rules and
regulations aimed at increasing stakeholder confidence in the country’s
electoral process. Typically, its approach involves conducting internal
research and analysis from relevant departments on a specific area. It then
collaborates with relevant CSOs, political parties, and government departments
to solicit inputs and buy-in. Multi-stakeholder workshops have frequently been
convened to produce policy documents on proposed regulations and raise
awareness of new ones. Three such efforts to revise the electoral process are
noteworthy.
The first is the introduction of biometric technology to improve
voter and civic registration. The integrity of the voter register was always
questioned in Zambia because of duplication and weak verification controls. Voter registration is continuous and the
commission has the mandate to carry it out.
From 2008/9, the ECZ, together with the Department of National
Registration, Passports, and Citizenship, pioneered efforts to develop the use
of biometric technology to conduct voter registration. This technology was
aimed at improving civil registration as well as introducing the biometric
national identity card for Zambian citizens. The process was reported to be inclusive
and transparent, with
regular consultation between the ECZ and stakeholders.[10] For example, political parties were consulted through regular
liaison meetings. CSOs were also consulted through a National Voter Education
Committee (NVEC), enabling the ECZ to support CSO capacity for voter education.
The UNDP, a key development
partner of the Commission, provided
technical assistance to the process as well as funding for voter registration.[11] The
biometric voter registration exercise contributed to the credibility of the 2011 polls and subsequent electoral
processes.
A second example is the revision and updating of the Electoral Code of
Conduct. The ECZ convened a workshop in
2010, with representatives from registered political parties, CSOs working on
governance and election-related issues, and church bodies. The workshop
featured academics as resources and consultants from the UNDP, who shared their
policy experiences. Various media houses were invited to support its
communications strategy.[12] This process resulted in a new Electoral
Code of Conduct, legislated in 2011 through a statutory instrument.[13] A final example is an initiative the ECZ
led in 2011 to develop two handbooks on conflict resolution and voter
education. The documents have provided guidelines to the commission’s work in
this area.
Stakeholders
Keeping in mind that ECZ engagement in electoral law reform work is limited,
the following represents the main stakeholders the body works with:
- The Ministry of Justice: According to the ECZ, while all
relationships are important, its relationship with the Ministry of Justice is
the most significant. The Ministry of Justice is the only body that drafts
bills and submits them to the executive for cabinet approval. The ECZ can only
make submissions on draft legislation through it.[14]
- National Assembly of Zambia: The ECZ can make inputs into submissions
made to parliament concerning its operations and the country’s electoral
process. The National Assembly also approves the ECZ’s budget.
- Review Commissions: In the 2003-2006 electoral reform process,
three ECZ commissioners were part of the ERCT. They presented proposals on
behalf of the ECZ.[15]
- Donors: Development partners have provided long-term support
for the Commission’s systems and processes. Similarly, they have provided specific
support aimed at strengthening the ECZ’s capacity for harmonising and revising
aspects of legislation.
- Political parties: The ECZ interfaces with political
parties through party liaison committees. These are an important mechanism for consultation
and co-operation between the ECZ and registered parties on all electoral
matters.[16]
- CSOs: The ECZ invites various organisations to
work with it from time to time – supporting its capacities for research and
policy development throughout the electoral cycle.
- Other institutions: These include the media and governmental
departments that play a role in the enforcement of electoral codes. For
example, the ECZ can invite the media to help raise awareness of its activities.
Government departments like the Anti-Corruption Commission and the Zambia
Police have participated in processes revising electoral regulations.
4. Challenges
and risks
The main hurdles
impacting the ECZ’s role in legal and electoral reform processes in Zambia
concern its mandate, administration, and financial capacity. Firstly, it has no
legal mandate to initiate such reforms, nor the power to draft legislation. In
its history, the Commission has never been mandated to run a reform process. Its
role is limited to policy input as required by electoral reform committees. Therefore,
it cannot initiate the process without being authorized by government. The
Commission is essentially part of government and cannot be seen to act against
it.[17]
On
the administration side, some challenges that may hamper the ECZ’s work in legal and electoral reform concern its
decision-making and institutional structure. Decision-making
has been highly centralised in the past, meaning the lower levels of the ECZ
hierarchy have not had a well-defined mandate. The division of responsibilities
between the Commissioners and the ECZ management has, in the past, not been
well articulated. Inter-departmental coordination and collaboration has
generally been weak as well, potentially weakening the ECZ’s capacity to make
policy inputs.[18]
The ECZ has no independent source of funding too. It
is currently funded in a similar manner as line ministries and gets allocations
from the Ministry of Finance and the National Planning ministry. Both
ministries exercise tight regulation over financial disbursements. ECZ
budgets are often subjected to amendments from the Treasury to meet
predetermined ceilings, which are determined by the Treasury without
consultation with the ECZ.
Another
challenge that affects the ECZ’s ability to engage more robustly in reform is
the fact that electoral reform has been intertwined with
the drafting of the constitution. In essence, electoral reform has hinged on
successful constitution making. This is problematic because historically,
constitutional reform processes have been long, contentious, and unyielding.[19] If it collapses, electoral reforms initiatives fail. [20]
Lastly, Constitutional
reviews in Zambia have been guided by a piece of legislation called the
Inquiries Act.[21] It gives the President a monopoly over the overall process, including powers to
determine its scope and the institutions that manage it. Ultimately, the Act makes
it the exclusive prerogative of the President and his cabinet to accept or
reject proposed recommendations.
5.
Recommendations
Building on the lessons learned from the ECZ’s rather limited engagement
in electoral law reform processes, the following is recommended:
- Advocate for
a clearer legal mandate: The ECZ ought to advocate for clarity regarding its
role in electoral law reform processes. Surely, an EMB is both an implementing
agent and stakeholder in the process. The Commission sits on substantial
experience and information regarding electoral management and regulation and
has first-hand insights into the technical and operational implications of new
laws. It could thus play a more substantive role if given legal teeth.
- Lobby for
financial independence: When an EMB’s financial independence is in question, it
ought to lobby the government and parliament to ensure an adequate funding
framework.[22] Without such independence, EMBs engagement in reform processes is severely
constrained. In Zambia, different models could be considered. One could be for
the ECZ to develop its own independent budget and timeline. It then receives
funding directly from Parliament, which would exercise oversight and scrutiny.
Another option is for the ECZ to ascertain specific funding from the government
for supporting electoral reforms in periods where the exercise is ongoing.
- Strengthen
capacity to revise election regulations: The ECZ has been strong in initiating
and developing various election regulations. This is an area within its mandate in which it
has a rich competency. The capacity to develop such regulations should be
continually strengthened by increasing the budget to these activities.
- Internal
research capacity development: Capacity building is required for EMBs to engage
effectively in electoral reform processes. The institutional capacities of the
ECZ in legal research need strengthening. It would be
useful for the ECZ to provide a needs assessment on building its internal
research capacity.
Annex 1:
References
Civil
society resolutions on basic minimum principles on the Constitution, May 2013, Protea Chisamba Hotel, Lusaka, Zambia, (unpublished)
D Motsamai, Zambia’s constitution making process: addressing the impasse
and future challenges, Institute for Security Studies, Situation Report,
January 2014
Erdmann, G and Simutanyi, N. (2003)
Transition in Zambia: Hybridization of the Third Republic, Lilongwe: Konrad Adenauer Foundation
Electoral Commission of Zambia, Strategic Plan, February 2010, (As
Revised in July 2012) Interim Report of the Electoral Reform Technical
Committee, 2004
Electoral Reform Technical Committee (2005), Final Report, at
http://www.ertc.gov.zm/sites/eisa.org.za/files/imports/importdata/images/documents/Final%20ERTC%20Recommendations%
20and%20Report.pdf (accessed 9 Mar
2012).
Government of the Republic of
Zambia, (1996) Constitution of Zambia
Government of the Republic of Zambia (GRZ)-United Nations Development
Programme (UNDP) Governance Programme (2011-2015) at http://www.zm.undp.org/content/dam/zambia/docs/legalframework/Zambia_2012-2015%20Governance%20Programme%20Document.pdf
L M Mbao, The
politics of constitution making in Zambia: where does the constituent power
lie? Draft paper presented at the African Network of Constitutional Law
Conference on Fostering Constitutionalism in Africa, Nairobi April 2007
Norwegian Agency
for Development Cooperation, (2008) Evaluation of Norwegian Development Support
to Zambia (1991 - 2005) Oxford Policy Management,
The Constitution
Review Commission, The 2005 report of
the Constitution Review Commission, Zambia
The National Constitution Convention of Zambia, at http://www.ncczambia.org/draftconstitution.php
The consolidated Inquiries Act at
http://www.zamlii.org/zm/legislation/consolidated-act/41
TCDZC Press
Release, Technical Committee resolution on the handover of the final draft
Constitution, Lusaka, Zambia, 8 November 2013
* Dimpho Motsamai
is policy analyst with the Conflict Prevention and Risk Analysis division of
the Institute for Security Studies. She is currently pursuing her Doctorate at
the University of the Witwatersrand, Johannesburg South Africa and publishes
extensively on governance and conflict dynamics in the Southern African
Development Community (SADC) region.
[2] See,
the Electoral Reform Technical Committee (2005), Final Report, at
http://www.ertc.gov.zm/sites/eisa.org.za/files/imports/importdata/images/documents/Final%20ERTC%20Recommendations%
20and%20Report.pdf (accessed 9 Mar
2013).
[4] The parentage clause refers to the parentage qualification
for election to the presidency as stipulated in the Zambian Constitution.
According to Article 34 of the Zambian Constitution, a presidential candidate’s
parents must be Zambians by birth or descent.
[5] See D Motsamai, Zambia’s constitution making process:
addressing the impasse and future challenges, Institute for Security Studies,
Situation Report, January 2014
[6] The 2006 Electoral Act is lauded for establishing
national and district level conflict management capacities for the ECZ. For the first time, an Electoral Code of
Conduct that outlines the rights and duties of candidates, parties, the ECZ,
the police, the media and observers during the electoral process was developed.
The 2006 Electoral Act also introduced voter education as part of the ECZ’s
mandate.
[8] Electoral Commission of Zambia,
Strategic Plan, February 2010, (As Revised in July 2012), p.4
[9] Before a bill is presented to parliament, cabinet sits to approve it. The only
other way a Bill is presented in parliament is through a private members motion
[10] Author telephone interview with an official from the
ECZ, 12 October 2015
[11] For more information on this see UNDP Zambia, Independent External Evaluation of the Electoral Cycle Management
Project – Zambia (2009 – 2012)
[12] Author telephone interview with Mr McDonald Chipenzi,
Director at the Foundation for Democratic Progress (FODEP), Zambia, 12 October
2015
[13] This is not electoral
law reform in the strict sense as it deals with regulations, but it certainly
forms a part of the broader legal framework governing elections.
[14] Author interviews with ECZ officials, 2 June 2015
[15] Interim Report of the Electoral Reform Technical Committee, 2004
[17] While the ECZ is established to operate as
an independent body, its autonomy can be affected by political interference to
varying degrees.
[18] As elaborated in the ECZ Strategic Plan 2010-2015
[19] The record of Zambia’s constitutions and constitution
review commissions from 1964 to 2011 can be accessed at the website of the
National Constitution Convention of Zambia, at http://www.ncczambia.org/draftconstitution.php (accessed 25 May 2015)
[20] This has been covered extensively by various authors including: G. Edman and N.
Simutanyi (2003, 2013); M. L. Mbao B. (2007); T. Israel (2012); D. Motsamai (2014); E. Hayward, (2010) among others.
[22] Author interviews with ECZ officials, 10 June 2015
