Thursday, February 12, 2015

Election Rigging, an Old Lullaby?

"I strongly feel there is need to look at our seriously flawed electoral system in our current Constitution..., but both (Nawakwi and HH) are excluded from contributing meaningfully to the governance of this great country by our divisive and corruption-riddled electoral system... The 'winner-takes-all', first-past-the-post system is a serious hindrance to democracy and must be consigned to the garbage bin of history."
- Alexander Chikwanda, Minister of Finance.
(Source: Zambia Daily Mail, January 29, 2015. p10)

The January 20, 2015 presidential elections have come and gone. What is on most people’s lips is tribalism. If only many know that, only a hungry mangy dog when beaten does not snap at its master. Instead, it puts its tail between the legs, and licks the master’s feet. So exactly who was tribal? Any way that is a story for another day.

It is the lullaby, that the election was rigged, that matters most to me. And if you sat on the pendulum side of the winner, it was just another old lullaby. However, the consequences can be dire. As in the lyrics, a profound call to revisit our election results management exists.

When Andrew Mazoka and General Godfrey Miyanda sung the elections have been rigged lullaby in 2001, we saw some significant changes on how results are to be managed. This is because there was partial implementation of the recommendations of the 2003 Electoral Reform Technical Committee. Still, more needed to be done, but we went to sleep.

In 2008, Michael Sata woke us up from our slumber when he sung the same lullaby again! According to a Wikileaks cable on the petition (which was discontinued), the ground of the petition were premised on the PF’s claim that, “.. electoral officials had rigged the results in areas where PF polling agents were not present, including in many district centres that collected and transmitted constituency results”.

That the actual polling day activities of January 20 can be deemed credible is not debatable. The eventual elections results management itself is undoubtedly the same old lullaby.

The expectation that determined and declared results as tallied from polling stations, will not again, raise concerns from contesting parties on the final constituency level presidential results declared by the Commission was a fallacy. The authenticity of the Constituency level results declared at Mulungushi Conference Centre was yet again a walk into the past. The opposition observed that some results forms did not bear the seal of the Commission; were not witnessed; had witness signatures, but no organisation or political party identified; or had witness signatures, but no identifiable party and its agent.

The Commission clearly found itself on the see-saw of the absurdities in our laws. The Electoral Act No. 12 of 2006 provides that the announcement of results at the polling is witnessed by political party polling agents, election monitors and observers, and, in Section 72, the Act does provide political party agents an opportunity to object when irregularities are observed during counting of votes and determination of provisional results. Legally, this means any concern raised is fait accompli as the results determined and declared are valid, since no objections were raised when they needed to.

Strangely, the Electoral (General) Regulations, Regulation 48 form used (Announcement of results of the poll – presidential) provides for witness signatures and identification of witnesses’ respective organisations. Yet, contradictorily, Section 36(2) of the Act does NOT mean that a results declaration form is only valid and admissible by the Commission if it is signed by a party agent. This is because, this section prescribes that the absence of an election or polling agent from a place where any electoral proceeding is being conducted shall not invalidate those proceedings”. Sic.

Further, the Electoral Commission started announcing results even when in some polling stations voting had not yet commenced. The UPND raised concern that doing so will influence individuals that are yet to vote. This concern arose, as at the time the contest between the leading parties (PF and UPND) was so close that even a difference of 5,000 votes could influence the outcome of the elections. This was deemed contrary to the provisions of the Electoral Act Section 74(3)(b), which is the Commission can only announce results without having received the results of all polling stations if the outstanding results are not likely to influence the overall result outcome. The Commission granted the request and stopped the announcement of results until all eligible voters had cast their vote.

Significant, is that the Commission was legally on firm ground. Section 74(3)(a) also provides that “the Commission may determine and declare the result of an election without having received the results of all polling stations, if to wait for the receipt of the result from every polling station would unduly and unreasonably delay the determination and declaration of the result of that election”.

It is important to note the two terms, unduly and unreasonably delay. An unduly and unreasonable delay in the determination and declaration of the result of a presidential election does not arise in Zambia. There is no legal provision for when or within what timeframe presidential election results should be declared. The only provision is that results should be determined and declared by adding together the results received from all polling stations immediately after the close of polling (Electoral Act, Section 74(1). This was not the case at the time, anyway.

In hindsight, the January 20 is another election that taught us the past, but as a people we never seem to learn. The January 20, results management was a repertoire of the ECZ we have come to know so well. Perhaps, it is time we strongly lobbied for implementation of the 2003 Electoral Reform Technical Committee recommendations that: Party agents or other authorised persons be permitted to sign and receive copies of the polling station result forms, which should be posted for public view at the polling station and that results should only be announced after they have been signed by party agents; results sent by the Returning Officers to the ECZ be countersigned by monitors and polling agents, to avoid suspicion of alteration of election results after the results have been counted and aggregated at the collation centre; and that ECZ should set a date of official announcement of final results (Report of the ERTC, 2004, page 64).

In retrospect, the lessons learnt for review of the country’s electoral system, were already learnt. The country’s plethora of constitutional reviews and electoral reform processes demonstrate considerably that there is a need for change. What continually lacks, is the political will to implement the many well intended recommendations from the reviews. Could be that the status quo is desirable as the obtaining rules of governance and elections seemingly favour those in government and protect the interests of the political party in power.

Undoubtedly thence, the lyrics of the election rigging lullaby should not just be glossed over. It is not an old lullaby. The lyrics are a vote of no confidence in our election results management. This is undesirable.

Verbum satis sapient. Peace be with you.