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.
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.
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.
Keeping in mind that ECZ engagement in electoral law reform work is limited, the following represents the main stakeholders the body works with:
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.
Building on the lessons learned from the ECZ’s rather limited engagement in electoral law reform processes, the following is recommended:
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.
[1] The Constitution of Zambia Amendment Bill and the Constitution of Zambia Bill can be accessed at http://www.parliament.gov.zm/node/4402 (accessed 5 October 2015)
[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).
[3] As above
[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.
[7] The ECZ’s profile can be accessed on its home page, at http://www.elections.org.zm/establishment.php (accessed June1, 2015)
[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.
[21] See the consolidated Inquiries Act at http://www.zamlii.org/zm/legislation/consolidated-act/41 (accessed 5 June 2015)
[22] Author interviews with ECZ officials, 10 June 2015
