Democracy and Abuse of Process in Zambia

Only six months ago, Zambia was seen as the icon of African democracy, celebrated, congratulated, and hailed as a model for other nations to follow. In a mostly free and fair election, a veteran opposition candidate was elected on a platform of greater social inclusion for the urban impoverished and unemployed, while a relatively popular incumbent president gracefully stepped down, bringing an end to 20 years of successive administrations under the same party.

But the optimism would prove to be short lived. Following a spate of arrests of former government officials on specious grounds (such as stealing bicycles), and an attempt to force the de-registration of the country’s largest party on a technicality, the new Patriotic Front (PF) government of Michael Sata has come under criticism.

In an article titled “Sata Stumbles” by the British publication Africa Confidential, the author takes note of the government’s flawed approach to democratic process and anti-corruption, remarking that the PF’s commitment to open politics is being undermined.

Apart from the discovery of 2.1 billion kwacha (US$395,000) dug up at the farm of former Labour Minister Austin Liato, there is little to show for the ‘massive plunder’ of national resources of which the PF accused Rupiah Bwezani Banda’s government. (…) With only a six-seat majority, Sata is attempting to remove the MMD as a threat. ‘No one kicks a dead dog,’ a University of Zambia political science professor told Africa Confidential. ‘Sata knows MMD is his greatest threat and no wonder he is kicking them around.’ Even MMD sources doubt the by-elections will take place but Sata is attempting to intimidate and demoralise the party.

However the real threat to the quality of Zambia’s democratic credentials is not the arrests of the opposition or the de-registration attempt, but rather the alleged abuse of the legal process, which has brought forward no less than 51 cases before the High Court contesting the parliamentary seats won by the Movement for Multiparty Democracy (MMD), the former ruling party. Essentially, the PF government alleges that every single seat they lost to the MMD was due to fraud, not popular choice of the voters, which makes many observers worry that it is their intention to manipulate the courts.

Never before in the history of Zambian politics has there ever been a moment when a party has won a presidential election but further gone as far as petitioning 51 parliamentary seats held by another party. On past occasions when results have been petitioned, the cases have been isolated but certainly not as much as more than 50.

According to the petitioners challenging nearly every MMD legislative seat, the elections were marred with corrupt practices, intimidation, vote buying and bribery – but so far, the evidence has been less than clear. The High Court, where the petitions are being heard, is certainly witnessing one of the most taxing periods as they have been busy dismissing some petitions while at the same time, declaring some seats vacant. Already some of the PF petitions have been dismissed for lacking merit or evidence, but the work before the court is staggering in quantity, and the judges are severely disadvantaged by a lack of resources to handle the caseload.

In a way, arguably, what Zambians are witnessing is an abuse of a legal process here, or at the very least, the unintended consequences of providing a system to address electoral grievances (in essence, a good thing), in that people have assumed that the plaintiff would only come to the court if their case had merit. Instead, the courts have been flooded with more cases than it could possibly handle.

One may ask: why should a party that has won presidential elections petition so many seats?

For a country like Zambia that uses the First-Past-the-Post electoral system which requires no run-off elections, presidents have usually garnered minority votes. The majority votes have traditionally gone to the combined opposition. In the end, these leaders have tended to focus on consolidating their presence in parliament especially within the first few months of being elected. Though these presidents have been legitimately elected, they have lacked the necessary numbers in parliament to pass decisions that suit them or their parties as the majority of members in parliament, the opposition, have voted in unison and defeated the ruling party’s bills.

As such, it shouldn’t be surprising that President Sata once threatened to dissolve parliament because the opposition were allegedly frustrating the PF’s decisions in parliament and the opposition dared him to go ahead only for the threat to be dropped. By challenging a whopping 51 seats in court (which is one third of parliament), Sata’s government is making moves to artificially manufacture a majority – despite the statistical impossibility of every seat won by the MMD being the result of cheating.

President Sata has so far appointed a handful of members of the opposition to ministerial positions under the guise of wanting to develop the nation, something reminiscent of what late president Levy Mwanawasa when he was elected as a minority leader in 2001. Interestingly, a number of the turncoat MMD members who jumped to ruling party were being accused of this or that corruption scandal before joining the PF, but once they came on board, those complaints disappeared overnight. It was a clear message: if you join the party, you won’t be prosecuted.

The right for the losing candidate to file a petition with the High Court is clearly outlined in the electoral code, but there was apparently no foresight for what would happen when the right to petition would be abused, especially in terms of the staggering costs to the taxpayer of organizing new elections.

At minimum, the cost of organizing a new election in one constituency is $200,000 (in past elections, some parliamentary seats have gobbled more than this figure to organize) meaning that Zambian tax payers are braced to lose tens of millions of dollars of their hard earned money to fund new parliamentary elections less than a year since holding general elections.

The cost-benefit analysis of the election petitions is baffling, to say the least. Take the figure of $200,000 as a the very minimum required for campaigning and organization of polls in one constituency as an example. If that money were to be used to buy medicines, how many lives would it potentially save? If it were invested in sinking boreholes in rural areas, how many people will have access to clean and safe drinking water? If it were to buy life-saving drugs for people that are HIV positive, how many people will be saved thereby contribute to the productivity of the economy? If it were used to improve our roads and schools, how much more foreign investment could we attract?

In a country that has so many urgent social needs and so little budget to cover them, a cost-benefit analysis of every activity could do much to improve state finance. The same goes for the anti-corruption crusaders, who in investigating a wild goose chase will book first-class tickets to Paris and London and rack up hundreds of thousands of dollars in expenses, only to bring to trial small cases concerning tiny amounts (bicycles, maize meal, etc.).

But the alleged abuse of election petitions poses another threat entirely. Beyond damaging Zambia’s democratic credentials, the strategy undertaken by the PF also implies the possibility of an assault on the judiciary to produce the impossible results they are seeking. While access to due process is critical component of pluralism, in Zambia, the current framework requires rethinking.

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