EU
Electoral Observation Mission
to Zambia
Final Report
27 December 2001
Presidential, Parliamentary and Local Elections
Contents
Topic
3.
Institutional and Legal
Framework
8. Conclusions and Recommendations
The 2001 elections were regarded as extremely important by the international community. The first multiparty elections of 1991 were regarded as successful and as a good example to other African new democracies. The second elections, in 1996, were, however, largely boycotted by international observers as a consequence of the changes in electoral law which had the effect of ruling out former President Kenneth Kaunda from standing for election. Dr Kaunda’s party, United National Independence Party (UNIP) then boycotted the elections. It was hoped that the 2001 elections would demonstrate a return to good electoral practice, and in pursuit of this, substantial sums of money were made available by the international donor community, and particularly by the European Commission, to assist the electoral process.
This is the Final Report of the European Union’s Electoral Observer Mission. As such it is the definitive report of the Mission’s work, before, during and after polling day, including the Mission’s recommendations to the Government of the Republic of Zambia (GRZ) and to the Electoral Commission of Zambia (ECZ).
The European Union set up its Electoral Unit (EUEU) in Zambia on the basis of the financing agreement with the Government of the Republic of Zambia (GRZ) and the three key criteria of public confidence in the electoral institutions, progress towards a level playing field, and increased public participation. It was assumed that, following the success of the Oasis Forum in catalysing political and public opinion against a third term for the incumbent President, the electoral process would be positive and that, in particular, the EU team would be able to work co-operatively with the Electoral Commission of Zambia (ECZ). This proved not to be the case and the ECZ placed increasing constraints on observation whilst failing to tackle open breaches of the ECZ's own Code of Conduct by the ruling party. It consequently proved to be a difficult mission, with the EU being openly criticised by the GRZ and the ECZ.
At 55% the level of voter registration was low, and the EUEU issued a critical report, as an Interim Statement. The election date was delayed to 27 December 2001, which, being in the middle of the rainy season and between the Christmas and New Year public holidays, was an extremely inconvenient date. Even so, few selected EU observers dropped out and 16 Long Term and 86 Short Term Observers were deployed.
The ECZ imposed fees for observers, both international and domestic, formulated difficult bureaucratic rules for the accreditation of domestic observers, and charged excessive fees for voters’ registers - all of which created additional constraints on observers at a time when allegations of election irregularities were increasing.
Observers reported a number of clear cases of breaches of the Code of Conduct during the campaign period, and the EUEU supported media monitoring project set out detailed evidence of the bias of the government owned media towards the ruling party.
Polling day passed peacefully, despite considerable aggravation caused by severe delays and evidence of maladministration by the ECZ. The count was conducted at the polling stations - in many cases exceptionally late at night, often without adequate lighting. The tabulation process in which figures are combined at the constituency level drew a number of adverse reports from observers. And the EU EOM had a number of serious concerns regarding the published results which it set out in its second statement.
The electoral process became considerably extended. In a few areas voting was even taking place five days after the appointed polling day. When the ECZ published its final results it was apparent that there were a number of prima facie anomalies, including a total lack of invalid ballot papers in many constituencies, and significant differences in turnout between presidential and parliamentary elections taking place at the same time and place. To assess these apparent irregularities, and to cover the verification process, the EU EOM was extended.
The EU EOM's Final Statement voiced a number of criticisms, all of which had also been addressed by other observer missions, both international and domestic. The statement was severely criticised by the GRZ.
Zambia has had elections based on universal suffrage since before independence in 1964[1]. Even during the UNIP one-party state era there were elections, with all candidates drawn from UNIP. The one-party epoch ended with the ruling in 1990 that attempts to ban the registration of the Movement for Multiparty Democracy (MMD) as a political party were unconstitutional. The 1991 elections were amongst the earliest in Africa and were well regarded by international and domestic observers both for their conduct and for the fact that the retiring President, Dr Kenneth Kaunda, who had been in office for twenty-seven years, accepted graciously his defeat by Frederick Chiluba. Dr Kenneth Kaunda did, in fact, suffer a landslide defeat, polling only some 25% of the vote - which is, however, only four per cent less than the Electoral Commission of Zambia (ECZ) declared Levy Mwanawasa elected with on 27 December 2001.
Towards the end of the MMD's first five-year term it introduced a new Constitution, using its overwhelming Parliamentary majority to enact it. This 1996 Constitution abolished the “run off” provision under which there had to be a second round of elections if no Presidential candidate achieved an overall majority, and introduced a number of measures which would cause frustration five years later with a desperately close race for the Presidency. Its immediate effect, however, was to prevent Dr Kaunda from standing for re-election as President, by inserting a provision that not only had a candidate to be a native born Zambian, but so had both his or her own parents. UNIP, Dr Kaunda’s party, and the main opposition party, responded by boycotting all the elections, whereupon international observers declined to monitor elections which they believed were intrinsically flawed. UNIP's boycott was a serious tactical error, as it now admits, and it all but killed off UNIP as a national political force. Its recovery to become the third largest parliamentary group in 2001 is largely due to its residual strength in the Eastern province.
To read the accounts of the final years of the Kaunda regime is to realise the parallels with the latter period of the Chiluba presidency. The votes received by the ruling party’s candidates at the subsequent elections were also very similar. The key difference being that in 1991 the opposition was united but in 2001 it was very divided.
The European Commission began the discussions towards funding for Technical Assistance (TA) and for an Election Observation Mission (EOM) in 1999. It commissioned Nicholas Selsey to visit Zambia and to undertake a technical assessment of the electoral situation[2]. Some of his findings on the shortcomings of the Zambian structure were later seen as prophetic. In due course a substantial project was drawn up, amounting to a total of 6.6 million euros[3], and the Financing Agreement was signed by the Head of EC Delegation and the Government of the Republic of Zambia (GRZ) in November 2000[4]. The Financing Agreement contained a clause providing that disbursement of funds for the Electoral Commission of Zambia was to be dependent on the GRZ fulfilling three conditions:
$ public confidence in the electoral institutions, particularly the ECZ
$ progress towards a “levelled playing field”
$ increased public participation
As 2001 unfolded, murmurings began of a possible Third Term for President Chiluba, with the MMD using its huge parliamentary majority to enact the necessary constitutional amendment. The then Republican Vice-President Lt-Gen Christon Tembo, and his immediate predecessor and MMD Vice-President, Brig-Gen Godfrey Miyanda, both opposed the proposal, and there was a remarkable and spontaneous outpouring of civil society opinion against the idea, culminating in the “Oasis Declaration”[5]. The solidarity and politicisation of civil society, plus the weight of parliamentary opinion - with twenty-one MPs of the majority party opposing a third term - eventually persuaded President Chiluba that it could not be forced through and on 6 April he announced that he was abandoning the proposal.
Despite the President’s decision, the ruling party decided to exclude its leading members who had campaigned against the third term and forcibly prevented them from participating in the party’s subsequent Convention in Kabwe. This catalysed the formation of the Forum for Democracy and Development (FDD) and three other parties led by defectors from the MMD[6]. By the time of dissolution of the 1996 National Assembly in December 2001 thirty-nine of the 131 MMD MPs had left the party, thirty-seven joining FDD, one to found the Heritage Party, and one to found the Patriotic Front.
The stance of the ruling party and its continued domination of the state owned media[7] were of increasing concern to the EC and it was clear that the three criteria for the release of major funds were not being met. Eventually, after considerable discussion with EU Heads of Mission, and to show goodwill, it was decided to go ahead. A strongly worded advertisement to this effect was placed in local newspapers in mid June 2001[8].
European Union Heads of Mission certainly believe that as much pressure as possible was put, and it was certainly a difficult decision. With hindsight, and in the light of later difficulties with the ECZ, it is arguable that greater and longer pressure should have been put on the GRZ and the ECZ, but to have withheld funds any longer would have ensured even poorer election machinery and many thousands of unpaid election workers. Not only were none of the three criteria achieved, the situation with the first two actually worsened over the months towards polling day[9]. The third was certainly not in evidence in regard to voter registration, with only 55% of those eligible registering[10], but 68% of those registered voted on 27-31 December 2001 - the highest turnout since the return of multi-party elections[11].
The EC's support for the electoral process came in three components. One, for direct assistance to the ECZ, amounted to €4.2 million. As such it accounted for around 10% of the total ECZ budget. It included [a] procurement of ballot papers, indelible ink etc, [b] funds to enable the ECZ to buy time on ZNBC for political parties under Section 9 of the Electoral (Conduct) Regulations 1996, and [c] two consultants, one, Joram Rokambe, the Director of Elections of Namibia, as a personal assistant to the ECZ Chairperson, and the other, Noel Lee, former Director of Elections of Jamaica, to assist with the financial machinery of the ECZ.
The second component was for the setting up of the European Union Electoral Unit (EUEU) ostensibly and mainly to prepare for an EU Election Observation Mission (EU EOM), a decision in principle which had not been taken in advance of the arrival of the EUEU in Lusaka in June 2001. Three consultants made up the Core Team, Michael Meadowcroft, Team Leader, Hannah Fearnley, Logistics Expert, and James Piriou, Civic Education Consultant.
The third component, under the wing of the EUEU, was a Trust Fund of €200,000 for NGO projects in the broad field of civic education. The Financing Agreement encompassed the possibility of EU Member States contributing additional funds to this Trust Fund and, although there was no initial response from Member States, by the end of the Trust Fund scheme a further €560,000 had been contributed. A total of thirty-eight NGO projects were ultimately funded from the Trust Fund.
By the end of July 2001 the EUEU was fully functional in Lusaka but still lacked a formal decision in Brussels on the sending of an EU Election Observer Mission.
The European Union now has a formal framework governing its work in election assistance and observation[12] and an "Exploratory Mission" is a key component of that framework. Such a Mission assesses the local situation and measures the arguments for electoral assistance and observation against the criteria in the Communication. In the case of Zambia an early contract was agreed with the British Council as managing agents to fund an Electoral Unit whose main Terms of Reference related to the support of an EU EOM.
It became clear that there was no prospect of an Exploratory Mission being sent to Zambia from Brussels within the time frame necessary to make decisions in relation to possible election dates. The three in-country consultants, members of the EUEU Core Team, therefore prepared a report dealing with all aspects of an Exploratory Mission as per the Communication, which was distributed to the Commission and Council.[13]
At the time of this report, however, no formal invitation to observe the elections had been received from the GRZ. Mr Justice Bobby Bwalya, the Chairperson of the ECZ, which was the body authorised to accredit observers, had consistently maintained the position that no formal invitation was necessary. This was generally regarded as unsatisfactory, particularly, for instance, by UNDP, who, for lack of a timely invitation, refused to participate in the electoral process in any formal way. The EUEU, together with the EC Delegation, maintained close contact with the European desk of the Ministry of Foreign Affairs and, on 4 September 2001, the EU received an invitation to send observers. The key passage read:
It is the wish of the Government of the Republic of Zambia that monitors and observers from the European Union are present in Zambia in order to share its democratic electoral process and to give their considered and professional opinion on the elections.[14]
Similar invitations were issued to all diplomatic missions in Zambia and to international organisations such as the Commonwealth, SADC Parliamentary Forum and the Carter Centre. In the light of later pressures on observers, the receipt of this formal invitation, and its request for observers “to give their considered and professional opinion on the elections”, were important as the authority for observers’ freedom of action and for their eventual reports.
Following discussions with Member States on 28 September 2001 the decision was taken to send an observer mission and to provide additional funding for the EU Observation Mission from the European Initiative for Democracy and Human Rights.[15]
The EUEU Team Leader, Michael Meadowcroft, a former UK Member of Parliament, was appointed Chief Observer of the EU EOM on 13 December 2001. In the light of the unsatisfactory nature of much of the electoral process and the consequent importance of the verification stage, his appointment was extended to 8 February 2002.
3. Institutional and Legal Framework
The Zambian electoral system provides for full adult suffrage, a unicameral legislature, elected at the same time and with the same length of mandate as the President, single member “first-past-the-post” constituency elections and a requirement that any Member of the National Assembly changing his or her political “label” has their seat declared vacant.
Zambia possesses the basic legal components for a sound democratic structure, but there are a number of individual clauses at different levels, the interpretation of which has not proved to be conducive to high standards of electoral practice. In addition, in the light of the 2001 Presidential election result, with Mr Mwanawasa declared the winner with less than 30%, it should be noted that, until its repeal in 1966, Zambian electoral law required a second round of presidential elections if no candidate achieved an overall majority in the first round[16]. There is a lack of consolidation of law in Zambia, and of academic commentary on the interpretation of the law, so that earlier Acts, and, more particularly, subsidiary legislation - i.e. Statutory Instruments - have to be interpreted in the light of the later Constitution or subsequent primary legislation. The lack of clarity in the 1996 Constitution on the length of tenure of the incumbent President was illustrated, as the date of the election was delayed, by the numerous articles and informed opinions backing dates months apart. The only legislation covering petitions challenging the Presidential elections is contained in a two clause act of 16 October 1996 amending the main electoral act[17].
However, the key weakness in the legal framework relates to the powers of the electoral commission. Section 76 of the 1996 Constitution provides for an autonomous electoral commission with three specific powers: registration of voters, delimitation of constituencies, and the administration of elections. The section contains no “mission statement” style command to conduct “free and fair” elections, and confines itself to the three “mechanical” tasks. Nor does the act developing the constitutional provision in more detail[18] contain any broader aims. In most situations this would not be significant, as electoral commissions, and, in particular, their chairpersons, would assume such an aim as both normal and crucial. Not so the ECZ as a whole nor its Chairperson, Justice Bobby Bwalya, who took a rigidly narrow view of his mandate.
Judge Bwalya consistently argued that the ECZ was not responsible for the quality of the election per se and that it was the responsibility of the police to enforce the Code of Conduct[19], and not that of the Commission[20]. However, a report in a Government paper[21] of a speech by a police spokesman quoted him as saying:
The Zambia Police Service has advised political parties to report all election related problems to the Electoral Commission of Zambia instead of to the police.
Police Senior Assistant Commissioner Hudson Beenzu said.... that the police service will not handle any election matters unless they were involving security.
The consequence of this buck passing was that the Code of Conduct could be ignored with impunity as indeed it was. The frustration felt by opposition parties at the MMD's flouting of the Code was made even more acute by the fact that the ECZ passed a number of late Statutory Instruments adding a specific commitment to obey the Code of Conduct to each candidate's signed nomination form - and then did nothing to enforce the failure to fulfil that commitment.
On paper the Code of Conduct is an admirable document covering, [a] the positive political rights of all citizens during the campaign period, [b] a prohibition on all coercion, [c] the duties of all citizens during the campaign period, ice a prohibition on violence, on disruptive behaviour vis a vis party activity, and on all inducements, [d] a ban on all use of Government transport or facilities (except for the President and Vice-President personally), and [e] no discrimination. The Code also laid down that any Government transport or property available for hire must be made available to all parties on a first come, first served basis. It also imposed on the media in detail the duty of equal access and equal treatment, even down to the duty of keeping the electorate up to date with election results “as they become available”. All excellent provisions; it is a great pity that they were largely ignored with impunity.
The final section of the Code of Conduct was, however, enforced, but this referred to the duties of local and international observers. The ECZ established an "Advisory Committee for Observers" through which it imposed a series of inhibiting measures on observers. These included, first, a fee for each observer - 150,000 kwachas (US$45) for each international observer[22], and, more seriously, 10,000 kwachas for each domestic observer. The main domestic monitoring organisation, FODEP, fielded 6,500 observers so that the late imposition of the “tax on observation” cost them approximately US$14,500. Considerable efforts were made in vain to have this fee removed and, in the end, rather than see FODEP excluded, the EU Member States paid the fee on behalf of FODEP and Coalition 2001. The ECZ produced its own “Observers’ Code of Conduct”[23] carrying in bold the threat that failure to observe the Code could result in three months imprisonment.
Second, the ECZ imposed a charge for the voters’ register grossly in excess of the cost of producing extra copies[24]. It refused to produce the register on CD-ROM, which it had the technical capacity to do, and which, quite apart from the cheap cost of production and excellent portability, would have been a valuable campaigning tool for the parties. The EUEU investigated the possibility of putting the register on to CD-ROM itself - and was then flatly forbidden to do so by the Chairperson of the ECZ. This was considered by the ECZ as a challenge to its authority, and was one example of the grey area between the proactive role of the EUEU and the impartiality maintained by the EU EOM. Eventually the EUEU copied the register, at a cost of one fifth of that charged by the ECZ, and supplied copies to those NGOs and parties it was working with in regard to observers and party polling agents respectively.
Third, the ECZ imposed new bureaucratic requirements on domestic monitoring groups, forcing them to secure signed completed forms for accreditation in advance of polling day. In a country twice the size of France, and with poor rural communications, this is a mammoth task and at previous elections they had been permitted to produce a single national list with all the 6,500 names and National Registration Card (NRC) numbers. The groups coped with this imposition with some difficulty but then the ECZ produced a second “declaration” form which it required signing in advance. Following total solidarity on the part of all observer delegations, the ECZ finally agreed that this form could go out with the accreditation cards and be taken to the polling station by each observer on polling day.
Fourth, when the box purporting to contain its 6,500 accreditation cards arrived at FODEP's offices, shortly before polling day, it was found to contain only 41 cards for FODEP. The ECZ was then incapable of supplying the correct cards in time and initially said that the FODEP observers would not be able to go into polling stations without having the missing cards. Again it took combined representations from NGOs and Heads of Diplomatic Missions to persuade Judge Bwalya that this was not a tenable position, and to issue an instruction to Presiding Officers on the eve of poll stating that, if the FODEP names were on the list of accredited observers, then FODEP observers could be admitted on production of their NRCs.[25]
There is a further, semantic, aspect of the institutional framework for Zambian elections, which revolves around the definition of “autonomous”. It has been argued by some academics that “autonomous” is less powerful than “independent” and implies no more than having devolved powers. One might well have expected the ECZ to be offended by such a suggestion. Far from it. On a Radio Phoenix programme on 17 December 2001, Judge Bwalya emphasised that the ECZ was fully prepared for the elections: “we are not some NGO,” he stressed, “we are a state organisation.” And to make it explicit, when, also on 17 December, a case brought by an NGO, the Zambia Reconstruction Organisation, arguing that the fees being imposed by the ECZ on NGOs to observe the elections were illegal, was heard, the ECZ's defence was that it could not be sued independently as it was "an arm of the Government". The Judge, Mr Justice TK Ndhlovu, agreed and dismissed the case saying:
Looking at the structure of the Commission, having regard to the principle of “Control Test”, it is clear that the Commission falls under the Executive arm of the Government since its operation and appointment of officers of the Commission can be determined by the President of the Republic of Zambia, the Chief Executive of the State. So its autonomy referred to does not confer the Executive powers outside the structure of the Government.[26]
This ECZ perception of its statutory position puts into perspective a number of ECZ decisions in relation to the conduct of the elections.[27]
Clearly one can take a maximalist or a minimalist view of the ECZ’s status and powers. The experience of these elections was that the view taken by the ECZ emphasised a lack of powers and of independence[28]
We recommend that there should be an urgent review of the powers of the Electoral Commission of Zambia. If it is not feasible to revise the wording in Clause 76 of the Constitution, then an addition to the Electoral Commission Act should be considered which would give the maximum agreed interpretation of such a Clause in relation to the role of the Electoral Commission in securing the highest quality of elections. We also recommend that the law relating to the composition of the Electoral Commission be reconsidered with a view to widening the basis of membership and giving the National Assembly the power to approve or refuse nominations, perhaps with a weighted majority.
We recommend that before the next scheduled elections in 2004 there should be a consolidation of the laws and regulations governing the electoral process.
In the sense that the President cannot announce the election date until the ECZ has certified the voters’ register, the timetable begins with the registration period. However, in advance of this the ECZ has the duty to determine whether or not to undertake a delimitation of constituency boundaries. It did not revise the constituencies before the 1996 election and it did not do so on this occasion either. It confined itself to increasing the number of polling districts from 4610 to 5509. One of the reasons advanced for postponing delimitation is the lack of accommodation at the National Assembly[29]. However, the number of directly elected seats in the Assembly is fixed at 150 in the Constitution so that, without a constitutional amendment, the ECZ cannot increase the number of seats and can only revise the boundaries of the 150.[30]
The decision of the ECZ not to undertake a new delimitation of constituencies meant that the disparity in the size of electorates widened still further, from Mkushi South with 5028, to Munali with 61438[31]. The electoral law authorises the ECZ to take into account the need to keep rural constituencies to manageable geographic sizes, but the current disparities are considered excessive, and, in a Parliamentary election which produces a very close representation as between Government and Opposition - as this election did, with 69 seats for MMD, plus 8 nominated, against 81 for the combined Opposition - the effect of the disparities can be crucial. The MMD won 16 of the 23 seats with electorates below 10,000, whereas it won only 7 of the 19 seats with electorates over 25,000. From this it is possible to calculate that the lack of a full delimitation exercise probably gave MMD four extra seats in the Assembly. We recommend that in any constitutional review consideration be given to replacing the prescriptive number of Assembly seats with a set formula for determining a maximum number. A fresh delimitation exercise is in any case well overdue.
Voter registration was started from scratch for this election, so that the register of 1998, which had been started in 1996 and then supplemented after a further campaign prior to the local elections of 1998, was scrapped and the previous voters cards became invalid. This previous register was based on the Nikuv technology which, rightly or wrongly, had become discredited.
A detailed report was produced by the EUEU on the 2001 voter registration exercise and an Interim Statement issued based on it[32]. We note that as late as mid-January 2002[33] the ECZ was still quoting 3.649 million as the number of eligible voters, even though this had been superseded officially two months earlier with the figure of 4.687 million[34]. Thus the total percentage registered was 55.5% and not the 72.2% oft quoted by the ECZ.
The 2001 voter registration will be the last under the old system of starting from scratch for each election. From 2002 there is to be continuous registration, so that the register will be permanent and able to be updated regularly and cumulatively. However, though this will no doubt be an improvement, it still maintains two aspects which militate against a high registration rate. We suggest, therefore, [a] that the necessary equipment be purchased to enable voting cards to be issued, with photographs taken and the cards laminated on the spot, to enable voters to obtain their cards on a single visit to the registration centre, and [b] consideration be given to amending the law so that the possession of a National Registration Card is only one of a number of possible means of demonstrating one’s qualification as a voter.
The ECZ finally certified the voters’ register to the President on 23 October 2001, in the full expectation that he would thus be able to announce the election date at the Independence Day celebrations the following day. Even had the date been announced on 24 October, with the minimum possible notice for the completion of all the logistics, it would still have fallen in the beginning of the rainy season with all its attendant problems for officials, parties and voters alike. As it was the announcement was delayed for a further four weeks, until 22 November, with polling day fixed for possibly the most inconvenient date for all concerned: 27 December. This date, in between the two public holidays for Christmas and New Year, with students away from their universities and colleges where they had registered, seed planting going on in rural areas, and the rains in full spate, was clearly going to cause difficulties for the whole electoral process. When, in addition, the request was refused for polling day to be a public holiday to make it easier for those in employment to vote, it was difficult to escape from the conclusion that the Government felt that the MMD would gain from a low voter turnout. The assumption was that the MMD, with its high level of organisation and its well-financed campaign machinery, would be able to deliver its vote come what may and that, therefore, a low turnout would give it an increased advantage.
The EUEU also expressed its concern that a lead time of only five weeks from announcement to polling day, was too short for the successful completion of all the necessary logistics, particularly to achieve the printing of some nine million ballot papers in 1438 different combinations[35]. The ECZ assured everyone that everything was prepared and that the announced date was achievable however the subsequent problems on polling day, including missing ballot papers, proved otherwise.
The long delays in announcing the date of 27 December 2001, and the date itself, also caused some problems for the EU EOM. LTOs had been identified early in expectation of an announcement on 24 October and they had to standby for a further month - and then arrive for a very inconvenient date. It was a compliment to the commitment of the LTOs that only two of the eighteen dropped out - one of whom had accepted another mission in the meantime. Similar problems were also faced with the STOs and the names on the list changed almost daily. The mission’s target had been one hundred STOs but in the end there were seventy who travelled from Europe and sixteen recruited locally. Because there was essentially no flexibility in the travel dates - STOs had to arrive on 22 December 2001 - and because southern Africa is a popular Christmas holiday destination, it was impossible to book scheduled flights for STOs, and an aircraft had to be chartered for them. Details of LTO and STO deployment in Zambia are contained in Annex C
One reason advanced for the delay in announcing the polling date related to the need following the third term debate to select a new MMD candidate and to introduce him in the different provinces. On 23 August 2001 former Vice-President Levy Mwanawasa was adopted by the MMD as its Presidential candidate, and President Chiluba began a tour of provinces with the candidate, commencing in Kitwe on the Copperbelt on 29 September 2001. The advertisements in the national (Government) press[36] listed three agenda items for the MMD Kitwe rally: “1. Speech by President Chiluba; 2. Speech by MMD candidate, Levy Mwanawasa; 3. Distribution of title deeds to houses”. No effort to prevent nor even to censure such a clear prima facie "treating" of the electorate was ever made by either the ECZ or the law enforcement authorities.
No formal consolidated election timetable as such was ever published by the ECZ and the dates for inspection of the voters register and collection of voters’ cards, for nomination of candidates, for submission of names of polling agents, submission of election petitions etc, were announced piecemeal by advertisements in the press, if at all.
The lack of an official timetable meant that insufficient attention was paid by the EU EOM to an additional stage in the electoral process which may be unique to Zambia. After the completion of the tabulation at constituency level, and the results have been despatched to the ECZ, the returning officer notifies all candidates of the time, date and place at which the verification of the ballot paper account will take place[37]. Where the EU EOM was notified of potential problems and asked to observe, in Copperbelt and Northern provinces, observers were retained for this purpose[38]. Had the EU EOM been more aware of the opportunities this verification stage afforded for observation, more provision would have been made.
The final stage in the timetable relates to the lodging of petitions against the election results. For the Presidential election these had to be submitted within fourteen days following the inauguration of the President[39], in effect by Thursday, 17 January 2002, and, for Parliamentary elections, within thirty days of the declaration of the result in question[40], in effect Monday, 28 January 2001. In the event there were three petitions lodged against the Presidential election[41], and forty against the Parliamentary results, covering thirty-eight constituencies[42].
The EU EOM was very much assisted by the considerable co-ordination on the ground in Lusaka before, during and after polling day, between donor community and stakeholders, between international observer missions, between EU Heads of Mission, and between EUEU and EU EOM and EC officials in Brussels. There was a fortnightly - later weekly - Election Co-ordination meeting, chaired by the EU Presidency, attended by all embassies and international bodies with a significant involvement in the elections. In the absence of UNDP playing a co-ordinating role, the US Embassy convened an informal weekly meeting of international observer missions. The heads of the international observer missions met on a number of occasions, often at extremely short notice, to discuss immediate problems or to co-ordinate approaches. The EU Heads of Mission met regularly with the Chief Observer to keep up to date and to make representations whenever necessary[43]. Additionally the EC Head of Delegation met at least weekly with the Chief Observer and responded to requests from the Chairperson of the ECZ to discuss the conduct of the mission and its head[44].
There was a consistency of viewpoint on the electoral process from all those involved, both from domestic NGOs and the international community.
Reports from LTOs suggested that the election campaign in the provinces was relatively low key, often only sparking into life when a presidential candidate was in the area. There were also reports of discrimination against opposition parties, including the refusal to allow opposition meetings over a number of days when the President might be scheduled to arrive. There were also reports of Government vehicles being used by the MMD[45].
An even clearer abuse of state resources concerned the activities of the District Administrators (DAs). These civil servants, whose office was created in early 2000, openly acted as organisers for the MMD and even as party officials. They spoke at MMD rallies and their offices were used as MMD party offices[46]. Their terms of reference show that are regarded as civil servants and contain no reference to party activity[47]. The electoral advantage to the MMD, in a country with very little formal party organisation, particularly in the rural areas, of having a paid organiser in every district is apparent. On 4 December 2001 a longstanding case against the DAs’ political activity, brought by the Law Association of Zambia and the Civil Servants’ Union of Zambia, came before the High Court. The Government failed to appear to defend the case and Judge Gregory Phiri gave judgement to the plaintiffs by default, compelling DAs “to devote their entire working time to government service”, and prescribing them from “participating or indulging in any public debate on any subject relating to the work of Government.”[48] Nothing changed thereafter, and no DA nor his or her line manager was ever prosecuted, despite the clear terms of the High Court’s ruling.
The saga of the attempt to promote debates between parties and candidates on television and radio is indicative of the attitude of the Government, the ruling party and the state-owned media. The law provided for thirty minutes of time on air for each party participating in the election,[49] however this time had to be bought at commercial rates. To enable the parties to avail themselves of this opportunity, the European Commission made funds available within its aid to the ECZ for the ECZ to purchase air time for the parties. A complex schedule of interviews and Parliamentary election debates was worked out between the ECZ, the parties and EU representatives, but unilaterally the Government forbade the televising of live debates and the entire centre section of the schedule had to be amended, as the state-owned media tamely fell into line, leaving only long one-to-one pre-recorded interviews with each of eleven Presidential candidates. An independent radio station did, however, continue with debates. The ECZ had already passed on the government’s views to the EUEU without comment.
Other debates, between Presidential candidates, were planned by three NGOs working together and funded through the EUEU's Trust Fund. The state-owned television channel, Zambia National Broadcasting Corporation, (ZNBC) refused to sell airtime for the six debates, despite being known to be in need of financial resources. The reasons given were all related to logistics and were easily capable of resolution but it then transpired that it was the Government that was behind the ban. The only alternative television channel is Trinity Broadcasting Corporation (TBN) which transmits evangelical Christian programmes. The NGOs decided to buy time on this channel and to purchase advertising in the press etc to get the public to switch over. The first debate was recorded and transmitted on TBC without problems, but then the Government warned TBN that its licence only permitted it to transmit religious programmes. TBN disputed this but felt that it was unable to defy the Government. The NGOs then went to the Court and obtained a mandatory injunction instructing TBN to maintain its contract with the NGOs and to broadcast the remaining five debates.[50] TBN complied and all six debates were broadcast. The format of these debates was to have three, or maximum four, of the candidates on each programme, with the same moderator each time, and with three journalists posing the questions, in front of a live audience. Thus each candidate was able to appear twice, debating with five or six of his or her opponents. Unfortunately, as a result of all the delays, the booked diary dates for some of the major candidates were lost and the symmetry of the schedule had to be amended.
Another attempt to promote televised debates was made by the USA backed PACT programme. These had a number of pre-recorded debates with all the Presidential candidates prepared to appear. These did not have any inter-action between the candidates and were transmitted via ZNBC. The final debate in this series was planned to take place live on the eve of poll. Facilities were booked, candidates invited and advertisements appeared in the press asking the public to attend. On the morning of the planned programme ZNBC cancelled it in order to broadcast a long interview with President Chiluba. Even though PACT obtained a High Court injunction ordering the transmission of the debate, ZNBC ignored it.
The MMD Presidential candidate, Levy Mwanawasa, did not accept any invitations to appear with opponents - though he did participate in a live programme with telephone callers putting questions - and this also applied to all MMD Parliamentary candidates when invited to participate in the series of debates put on in a number of constituencies by the Press Freedom Committee of The Post.[51]
The ECZ gazetted the hours of polling as being 06.00 to 17.00 on Thursday, 27 December 2001[52] but in a number of cases, in Liuwa, Mporokoso and Lukulu West constituencies, for instance, polling did not take place until 28 December. In Chavuma and Zambezi West constituencies polling was still taking place in some areas five days after the appointed date. This had the unfortunate consequence of results being broadcast from other constituencies whilst voting was still taking place, with the clear risk of the late voting being influenced by that publicity. Authority to adjourn polling at his or her polling station rests with the relevant Presiding Officer, but the context of the law[53], and, even more clearly, of the ECZ instructions to Presiding Officers[54], is of this being consequent upon “riot, open violence, flood or fire” rather than as a result of a lack of ballot boxes, ballot papers or other vital equipment, which was invariably the case. Time and again it was said to observers that there had never previously been such poor organisation of elections in Zambia.
The fact of having local government elections on the same date as Presidential and Parliamentary elections was unique, but apart from the lack of local election ballot papers at a number of polling stations, none of the logistical shortcomings can be attributed to this fact. Indeed, the lack of such ballot papers was not allowed to delay the poll unduly as it simply went ahead without the local election vote taking place at all.[55]
The main cause of delay in opening polling stations was the lack of ballot boxes. This was the case in a number of rural constituencies where, given the distances involved and the adverse climatic conditions, allowances for an occasional slip up could perhaps be made. However, the area where this omission was most in evidence was the centre of Lusaka where no such excuse could be sustained. Sixty-four polling stations, mainly in the Matero constituency, were unable to open at 06.00 because they lacked ballot boxes. A single truck commenced the delivery of these boxes at 06.30. Later, at about 09.00 a second truck was brought and was supplied with ballot boxes from the first. A third truck was said to have been used much later but this was not verified. The last polling stations to receive ballot boxes were those at Lilanda Basic School at 13.45, and these opened at 14.30, as soon as the polling station staff had managed to complete all the necessary requirements.
The two EU Observers assigned to the Matero constituency visited the polling stations on the eve of poll and were alarmed to discover the polling staff patiently waiting into the late evening in vain for the necessary polling equipment. The observers investigated further and discovered the ballot boxes sitting in the Lusaka Civic Centre. The question arises, why, if observers could trace the missing boxes, was it not possible for the electoral authorities to do the same and to deliver them?
It appears that the ECZ is denying responsibility for the non-delivery of the ballot boxes and, instead, is shuffling responsibility on to the Town Clerk of the Lusaka City[56], to whom it alleges it delegated responsibility. The fact that the ECZ lacks its own staff and has, for instance, to rely on the Office of the President for much of its logistical support, is certainly a weakness of the Zambian electoral structure, but the ECZ remains legally responsible for the conduct of the election. It is the ECZ which appoints an Electoral Officer for each polling district[57]. The ECZ assumes that the Chief Executive Officer of the local council will be appointed in his or her area[58] and it is the Electoral Officer who “long before the polling day” appoints a polling station for each district and selects and appoints polling and counting staff[59].
The responsibility for polling day equipment is clear:
The Director of Elections will issue equipment to the Electoral Officer by recording the equipment on an issue form, as shown at Appendix 5. The Electoral Officer will use the same form to issue the equipment to the Returning Officer for the constituency. It is the Electoral Officer’s duty to personally check the equipment upon receipt. Any deficiencies must be immediately reported to the Director of Elections. Delayed reporting of deficiencies in the supply of equipment may cause a serious disruption of elections.[60]
Thereafter it is the responsibility of the Returning Officer in each constituency to:
issue all polling equipment (other than polling booths and ballot boxes, which should already have been delivered to polling stations) ensuring that each Presiding Officer checks the equipment and signs for it. The practice of issuing equipment at a later date should be discontinued. It is essential that the Returning Officer, together with his/her Assistant Returning Officers, check and pack the equipment well before the briefing meeting.[61]
The handbook makes clear the chain of responsibility from Director of Elections to Electoral Officer and thence to Returning Officers. All are appointed officials of the ECZ. In the case of the late ballot boxes in central Lusaka it is clear from the regulations that both the Electoral Officer and the Returning Officers should have been aware of the omission well in advance, and should have taken action to rectify it. For whatever reason they did not do so.
It is an important issue because of its electoral implications. The polling stations without ballot boxes at the appointed hour for the commencement of the poll were those serving the compounds; those serving the more middle class areas were all fully supplied. The electors living in the compounds were expected, and did, vote heavily for the opposition. It follows that if the turnout of voters at these polling stations was reduced as a consequence of maladministration, it would benefit the incumbent party at the presidential election. It was clear from the evidence collected by observers that, faced with inordinately long waits to vote, without food or shelter, a number of voters had to abandon the queue. Some had to go to work, some went home to care for children, and some elderly or frail voters simply could not stand any longer. A study of the polling district evidence available for Lusaka suggested that, in general, the larger the polling station the lower the turnout, i.e. prima facie the length of time required to queue to vote had an effect on the turnout.
We recommend that the ECZ should have the resources to hire its own staff rather have to rely on what are in effect secondments.
The forbearance of the voters was remarkable. Many arrived well in advance of the 06.00 hour when the polls were due to open and by mid-morning up to half the electorate was present at the polling stations. This meant that where there were a number of polling stations at the same school, there was a thousand or more voters queuing or milling around. At Lilanda Basic School, for instance, with almost four thousand voters registered at its four polling stations, there was a huge crowd in the yard between the school buildings and the road.
To the immense credit of the Zambian people, despite the frustrations and the belief that the maladministration was deliberate, there was no violence and the situation remained peaceful. The ECZ, noting that “the elections were conducted in a peaceful and tranquil environment” argues that, “hence ... they were transparent, free and fair.”[62] The fact that the Zambian electorate did not riot, despite the considerable provocations detailed above, hardly constitutes in itself the sole criterion for a “transparent, free and fair election”.
Even when the polling stations did open, the length of time it took each voter to vote in the three elections ensured long queues and a considerable wait. A number of observers reported on this early in the morning of polling day. The consensus was that the average throughput was thirty voters per hour. On that basis, with a 70% turnout, it would take the entire planned eleven hours of voting to cope with even the average of 500 voters per polling station. However, there were many polling stations with over 1,000 voters and even 22 with over 2,000[63]. It can easily be seen that, with only one line of voting in operation, it would require an inordinate amount of time to complete voting.
The rule as to the close of the poll was that “any voter who is in the polling station, or in the queue outside, waiting to vote, must be allowed to vote.”[64] Also, a presiding officer had the discretion “to extend the hours or adjourn the day of polling at his polling station where polling has not started or has been interrupted.”[65] The latter rule was interpreted on polling day by the ECZ as meaning that any time lost as a consequence of late opening should be added on to the scheduled closing time. Despite the existence of these rules on such an important issue, they were neither universally known nor followed by presiding officers, a few of whom either did not extend hours or excluded voters contrary to the rules. These were certainly the exception rather than the rule, and observers reported on the general professionalism and commitment of polling station staff.
The question necessarily arises as to why the ECZ did not provide for additional lines for every polling station at which it could be expected that polling could not be completed during the appointed hours. Even if the ECZ was taken by surprise by the high turnout (on average 68%), it could reasonably have anticipated a 50% voter turnout, in which case any polling station with more than 700 voters would still have had a queue at 17.00, and the University polling station, with 4207 registered voters, would have had to remain open continuously for three days. One can only assume that the ECZ did not undertake a simulation exercise to determine the logistical needs of polling stations, in which case it was a serious omission which led to considerable consequential problems. If it did do such an exercise, it is strange that additional lines were not provided in advance at the larger polling stations. A comment in mid-January by the ECZ suggested that it was taken by surprise by the length of time it took to vote.[66]
Faced on polling day with the huge queues and clear indications that, even where the poll had opened on time, voting was going to have to continue way beyond the appointed hour for closure, in a few places the ECZ introduced in late afternoon a second line. This included the University (Munali constituency) and Woodlands “B” (Lusaka Central). Because this was unplanned it produced consequential difficulties. There could not be an electoral register marked up to the point at which the second line was introduced and nor could there be additional party polling agents or domestic observers available to monitor the new line, consequently the existing observers and polling agents had to split up to share the task between them. Also, rather than the voters in the second line feeding their completed ballots into the existing ballot boxes, an additional ballot box was produced for each of the three votes so that at the tabulation centre there was confusion and suspicion as to the existence of more ballot boxes than there were polling districts.
The high turnout recorded at most of the polling stations serving the student population was significant. Students had mainly registered at the registration centres (which in the vast majority of cases were also the subsequent polling stations) at their university or college, rather than in their home areas. It was expected that the economic consequences of the 27 December polling date, i.e. out of term time, would greatly inhibit students from voting. The UNZA authorities permitted the students to retain their University accommodation up polling day - though without provision for food - and it is clear that the majority of students either stayed at their place of study, or returned to it, in order to vote.
The consequence of the lack of advance planning for the larger polling stations and the lack of key materials at a number of polling stations was their inordinate late closure. There were many reports of polling stations open at midnight and of some which carried on continuously until 05.00 on 28 December. Even then there were reports of voters being turned away by completely exhausted polling staff despite having queued for twelve hours.
The ECZ conceded that
The voting process was too slow, because the voting system is rigorous in order to ensure that there is no rigging of elections. Further, the voter turnout was very high and this was compounded by the conduct of three elections concurrently. However, this problem will be addressed in future by introducing double stream voting in each polling station.[67]
Clearly double streams will assist, but even without local elections taking place at the same time, they will only enable a polling station with approximately 1250 electors to vote within the allotted eleven hours. We recommend that, whilst 500 voters is a satisfactory average figure for a single polling station, 1250 be regarded as the maximum.
The long voting process had the additional consequence in many polling stations of causing the later hours of voting to take place by candlelight, which in itself militated against the security of the election by making it difficult for voters’ documents to be properly examined and for thumbs to be checked for ink marks. Adequate lighting is also vital for the counting stage, so that staff and observers alike can assure themselves that the marks on the ballot papers constitute a valid vote and that they are allocated to the correct candidate. We recommend that the provision of adequate lighting be added to the list of equipment for each polling station.[68]
Domestic observers and party polling agents were present in virtually every polling station. The only exceptions appeared to be the few that were exceptionally inaccessible or, such as prison or military barracks, could either not be found or accessed. The EUEU and the EU EOM were opposed in principle to the ECZ’s imposition of a fee for each observer, as was every International Observer mission and NGO participating in monitoring or assisting the electoral process. The objection was in principle and, particularly for domestic monitoring groups, on grounds of cost. Observer groups, both international and domestic, see themselves as partners with electoral commissions in the common aim of securing the highest quality election. Charging a fee turned them into clients.
All representations to the ECZ were rejected and it insisted on charging 150,000 kwachas (US$40) for each international observer and 10,000 kwachas (US$2.50) for each domestic observer.[69] Despite the disparity in amount, the fee bore much more heavily on the main domestic monitoring groups because of the scale of their operation. FODEP, for instance, intended to accredit 6,500 observers - one for each of the 5,509 polling stations, plus 1,000 “floating” observers - thus incurring a cost of US$16,500. Afronet, working under the banner of Coalition 2001, also intended to have a presence in every polling station and therefore faced a similar problem. Other NGOs which intended to have a substantial observer presence also faced considerable unbudgeted expense.
The EUEU and the EU Member States were concerned to ensure the presence of domestic observers at each polling station and were not prepared to see the key organisations priced out of observation by the ECZ. They therefore intimated to the two largest organisations, FODEP and Afronet (Coalition 2001), that, if the ECZ persisted in its determination to charge observers, the EUEU Trust Fund for NGO projects would meet the charges.
The Zambia Reconstruction Organisation (ZAMRO), one of the smaller NGOs which intended to field observers, took the ECZ to the Court to seek a ruling that the ECZ did not have legal authority to impose the charge for observing. The ECZ successfully argued that it could not be sued independently of the government[70]. ZAMRO had been a founder member of the ECZ National Committee for Civic Education but was “excommunicated” from it following its action against the ECZ[71].
In addition to the presence of observers at polling stations, there was a legal right for parties and candidates to appoint polling agents[72]. The EUEU and EU Member States took the view that the presence of party polling agents as a formal check on the poll and on each other was beneficial and important. Therefore, given the high cost of fielding polling agents, a scheme to provide funding would be developed. The scheme was backed by a number of EU Member States and received the approval of the ECZ’s Conflict Resolution Committee. It was thereafter planned by an ad hoc committee of funders, trainers and administrators. The scheme was confined to parties fielding presidential candidates, all of whom agreed to participate. Training and a practical handbook were supplied by the National Democratic Institute.
As the main domestic monitoring organisation, with a professional presence in every province and planning to have a presence in every polling station, FODEP was asked, and agreed, to administer the scheme and planned to have envelopes prepared in advance addressed individually to each named polling agent, on the basis that the ECZ required their names and the polling stations to which they were assigned by 23 December 2001[73]. Unfortunately the parties did not follow this instruction and the ECZ did not insist on it, consequently names of polling agents were only supplied on polling day and FODEP was not able to prepare the payments in advance. The identification of those legitimately entitled to support was extremely difficult and the administration of the scheme became a considerable post-election headache for FODEP.
The availability of the voters’ register is important for party polling agents to enable them to check voters’ names as they vote during the course of polling day. It is also a valuable campaigning tool giving candidates and their workers the opportunity to address their electors by name. Electoral commissions normally regard it as part of their work to make the register available free or on reasonable terms to stakeholders. Unfortunately the ECZ did not take this view and would only make the register available at a charge of 10,000 kwachas (US$2.50) for each of the 5,509 polling districts. Thus, for a party to obtain a single copy of the register for the whole country would require it to pay US$12,500. It turned out that this was almost five times the cost of making an additional photocopy and thus appeared to contravene the provisions of the law:
Any interested person may apply to the Director of elections for a copy of any register of voters and the Director of Elections may, if such copy is available and upon payment of a sum sufficient to meet the cost of such copy, supply such copy to such person.[74]
In an attempt to get around the problem of the ECZ providing any paper registers, and having confirmed that the ECZ had the necessary technical capacity, requests were made for the ECZ to supply the register on CD-ROM, from which the party or the monitoring group could print paper registers as required. The cost of each CD-ROM would be minimal and would have the additional advantage of enabling the register to be re-indexed from voter’s name order to street order for ease of canvassing in urban areas. This request was refused by the ECZ.
We recommend that the ECZ produces the basic material, i.e. excluding information, such as date of birth etc, but including the actual list of electors, from the new voters” registers on CD-ROM as a matter of course and makes them available free of charge to the political parties and relevant NGOs
This left the problem of the provision of the voters” register to the party polling agents and to other organisations with whom the EUEU was working. The EUEU representative raised the issue again at the second meeting of the ECZ Election Observers’ Advisory Committee on 7 November 2001 and the ECZ :
Commissioners present stated that the charge as already fixed would not be amended. [The EUEU representative then] stated that the EUEU was minded to purchase one copy at the ECZ’s price and then to copy it itself for those it was working with. Commissioner Rev Chilekwa responded that what the EU did with it after it had bought a copy was entirely up to the EU. Any copies made would be the EU's responsibility.[75]
The EUEU purchased a copy of the voters’ register and commissioned test scans to prepare CD-ROMs from the paper copy. These would not have had the versatility of CD-ROMs that could have been produced from the ECZ database but would have had numerous advantages over the paper copies. However, even these were forbidden by the ECZ[76] and paper copies had therefore to be produced for party polling agents etc.
There were numerous allegations of vote card buying against the incumbent party but despite much circumstantial evidence produced to the EU EOM no voter was prepared to sign a statement on the matter. However, the ECZ appeared to accept the allegations as it passed a specific Statutory Instrument[77] enabling electors to vote without their voter’s card providing they had retained their RV1 form, given to them as a receipt when registering to vote. This was not sufficiently publicised and observers reported that few voters appeared to have made use of the provision.
Since 1996 the count has taken place at the polling station, rather than at the constituency level.[78] This is generally regarded as providing a better safeguard for the security of the election than the need to transport ballot boxes to a central tabulation centre, particularly when the voting figures from each polling station are officially published - which, unfortunately, is not the case in Zambia. However, particularly when coupled with Zambia’s inherited British system of numbered ballot papers with a counterfoil on which the voter’s number is recorded, polling station counts have two potentially deleterious consequences for the security of the electoral process.
First, because there is only a single voters’ register involved, with a single sequence of voters’ numbers, as opposed to perhaps thirty separate sequences when mixed before sorting at constituency level, the possibility of identifying how an individual elector voted is much higher.
Second, particularly in rural areas, it is possible from a single polling station to identify how a particular village or locality has voted, thus laying it open to collective pressures. At this election there were allegations of threats being made, in relation to the provision of mealy meal before polling day, with promises of a further distribution after the election if the relevant polling station figures showed the correct result.
We recommend that:
(a) consideration be given to increased safeguards on the secrecy of the ballot;
(b) consideration be given to including a prohibition on the use, or of the threat of use, of individual election statistics to discriminate against a particular locality within the electoral law.
In theory the electoral process should progress smoothly from poll to count, and on to tabulation within a reasonable time span, and, where the number of electors was small enough to enable a polling station to close on time, the polling/counting staff were able to conduct the count in an efficient and co-operative manner. There were a number of instances where the presiding officer would not allow observers and polling agents at the count close enough to the ballot papers for them to be able to confirm the accuracy of the separation of votes for the different candidates. There were a few recorded instances of ballot boxes not remaining within the purview of observers between the close of the poll and the commencement of the count. In the main, however, the reported problems arose at polling stations which had closed exceptionally late at night, or early the following morning. At some of these polling stations the staff had been continuously on duty for twenty-four hours or more - a situation not conducive to the accurate accomplishment of the detailed bureaucratic tasks involved in conducting an election count.
Reports from tabulation centres of missing documentation and of errors in the paperwork from polling stations may well relate to errors of omission rather than of commission.
There were a number of reported instances of Office of the President officials officiating at polling stations, in place of locally recruited teachers of local government officials. Their role has not been satisfactorily explained.
Following the completion of the count of the polling district, carried out at the polling station, the Presiding Officer is responsible for the immediate transmission of the pre-printed envelopes containing the ballot papers for each candidate and those proposed for rejection, plus the ballot boxes, to the Returning Officer at the tabulation centre (“the totalling room”). The regulations provide for a representative of each political party with a candidate at the election (plus any independent candidate) to accompany the envelopes and ballot boxes to the tabulation centre[79].
If there were three separate teams headed by a Returning Officer or Assistant Returning Officers the totalling of the three elections could be done at once, otherwise it had to be done in the order Presidential, Parliamentary and Local Government[80]. The continuing validity of the instruction to Returning Officers that:
The Totalling of the Votes must not begin until all ballot boxes from all polling stations have been received from all Presiding Officers[81].
Was in doubt as the ECZ realised that the existence of one large polling station with voting continuing late into the night or even the following morning, would mean that a Returning Officer and his or her staff could be sat around for many hours. In the main observers reported that Returning Officers got on with the tabulation once the majority of polling districts had been received.
As noted earlier[82] there is in Zambia a lack of consolidation of law and of academic textbooks interpreting the law so that earlier laws and regulations have to be interpreted in the light of later enactments. This is particularly relevant in the case of electoral law at this vital point of the process. The change to polling station counting in 1996 was not accompanied by the comprehensive revision of the regulations relating to the count required to make clear the distinction between “counting” and “tabulation”. Nor do the two handbooks - for Presiding Officers and Returning Officers respectively - set out the procedures with sufficient clarity. The intention is certainly clear but the means of achieving it are not. It is evident from observer reports, and from the published statements of other missions, that it was from this point that the main concerns regarding the accuracy of the published results commenced to be voiced.
The Presiding Officer hands over to the Returning Officer, and receives a receipt for, the ballot boxes and for six envelopes, lettered “A” to “F” which contain the ballot papers, used and unused, and the forms setting out all the details of the count and ballot paper reconciliations carried out in the polling station. It appears from the Presiding Officers’ handbook[83] that the ballot papers proposed for rejection, and those for each candidate, are put into separate envelopes which are then sealed. Whether all these are envelopes “A”, or whether they then placed into a large envelope “A” is not clear, though later[84] it states that the keys to the ballot boxes will have to be sealed in the “envelopes marked “A””.
What is clear is the statement in the Returning Officers’ handbook[85] that “the only envelope needed at the Count is the sealed envelope “A””, which has to be extracted from the sealed ballot box in which the Presiding Officer has placed it. This envelope should therefore contain the Ballot Paper Account form (GEN 7), the form (GEN 8) regarding papers proposed for rejection, and the result declarations (GEN 9). In principle, the Returning Officer at the tabulation compiles the results from the forms and has no authority to touch the ballot papers - apart from re-examining the papers proposed for rejection and pronouncing on them according to the detailed instructions and examples in the handbook[86]. In practice, however, as reported by observers, in a number of cases relevant forms were missing, the numbers reported did not balance and recounts of ballot papers took place at the tabulation centre. By this time most officials - and observers - had been working continuously for anything up to 48 hours and the control of envelopes and boxes, and the ability to deal with the vital minutiae of the forms on the basis of which the President and Members of Parliament were elected, were inevitably flawed.
We recommend that for future elections two Returning Officers be appointed for each constituency, one to oversee and troubleshoot the polling districts on polling day, through to the completion of the polling station count, and the other to be responsible for the tabulation centre, coming on duty from, say, 20.00 on polling night.
A substantial number of serious irregularities were reported from the tabulation centres, even including the removal of ballot boxes, together with the widespread transmission to the ECZ of results containing obvious prima facie anomalies which, at very least, should have caused the ECZ to ask searching forensic questions rather than just publishing the figures. With less than 2% of votes separating the two leading candidates in the Presidential election race, the importance of ensuring the accuracy of the official figures should have been paramount. Instead, the ECZ simply pressed ahead to meet the Government’s timetable of the inauguration of the new President on Wednesday, 2 January 2002, formally declaring the official result of the election before the final two constituency figures had been received.
The evidence for the two key anomalies - the difference in voter turnout between the Presidential and Parliamentary elections, and the lack of any invalid ballot papers in 83 constituency polls - is set out in detail in the EU EOM Final Statement[87]. So far these have not been addressed publicly by the ECZ. An article in the government owned “Times of Zambia” has, however, defended the published figures[88], arguing, first, that
The rules are clear you can vote for a presidential candidate without necessarily voting for an MP.
This is, of course, true but it is highly unlikely that in 22 of the 150 constituencies between 900 and almost 6,000 voters would deliberately opt to refuse to go participate in one or other ballots. The comment also appears to believe that those who opted out did so for the parliamentary election, whereas of the 22 where the difference in turnout was 900 or more, exactly half showed more votes in the parliamentary election than in the presidential.
The same article defends the widespread lack of invalid ballots, claiming that this was a consequence of good voter education. This ignores four points, first, a certain proportion of voters spoil their ballot paper deliberately, usually to indicate their dissatisfaction with the electoral process or with all the candidates. Second, the constituencies without invalid ballots were concentrated in the rural areas where the levels of illiteracy are higher than in the towns and cities. Third, the example of the Ndola North constituency is salutary; in the initial results declared on 29 December 2002, no invalid ballots were shown for either presidential or parliamentary elections, but, following the verification process, on 8 January 2002, the same Returning Officer declared corrected results. These indicated 908 and 643 invalid ballots for the two elections. No explanation of these discrepancies has been forthcoming. Fourth, it would be strange if voter education was only effective in relation to one election or other but not both, given that in 62 of the 83 cases there were no invalid votes in one election but were recorded in the other. It is in any case difficult to believe that 1,172,529 electors could cast their votes without a single mistake.
An unusual feature of the Zambian electoral process is the existence of an additional stage after the declaration of the results through which there is a verification of the ballot paper account.[89] Notice of the time and place of the verification has to be given to candidates, and, in a number of cases, such as Bwana Nkumbwe and Mpika Central, EU observers also attended. In the former case, evidence had been shown to the Chief Observer of unused ballot papers having been taken from the constituency. At the verification process the polling district from which these ballots had come was identified. No explanation could be found for the missing ballot papers. Where, as in Ndola Central, the verification process was done thoroughly and the envelopes containing ballot papers were rechecked, it demonstrated discrepancies with the officially declared results. The ECZ was sufficiently concerned to publish paid advertisements in the national press[90] stressing that the verification was a fresh reconciliation of the ballot paper account and not a recount.
Election Petitions
Three petitions were submitted against the Presidential election results, by Alaexander Mazoka and the UPND, by Brig-Gen Godfrey Miyanda and the Heritage Party, and by Lt-Gen Christon Tembo and the FDD. Forty petitions against thirty-eight Parliamentary election results were submitted. The parliamentary petitions were due to be heard first, from 26 February 2002.
The EUEU budget included a budget line for media monitoring, but there was no provision for a fulltime expert to initiate such a component, to recruit and train monitors, to procure equipment, and to supervise the writing of reports. The EUEU Team Leader did not consider the amount included sufficient for an independent, freestanding, media monitoring component but it was enough to enable the EUEU to build the capacity of an NGO which had been carrying out media monitoring for some time. Afronet, working under the umbrella of Coalition 2001, published weekly results of its monitoring. Those in charge of this work agreed to be contracted by the EUEU to provide it with a media monitoring service during the campaigning period. Part of the contract was to work with a consultant and to develop the NGO's capacity so that timely reports of an international standard would be produced each week during that period. Gillian McCormack of the Dusseldorf-based European Institute for the Media was engaged as an expert and she made two consultancy visits to Lusaka to work with the media monitoring team. Coalition 2001 produced three detailed reports - the third one being a consolidated report covering the whole campaign period.[91] The reports set out the heavy bias of the government-owned television, radio and newspapers towards the incumbent party.
8. Conclusions and Recommendations
This was a long and difficult mission, mainly because the ECZ regularly expressed the view that there could be no irregularities in the elections and consistently gave the impression that, therefore, observers in general, and the EU EOM in particular, were not needed. Further, through the ECZ Consultative Committee on Observers, it endeavoured to constrain and inhibit observation by the imposition of financial charges and by bureaucratic regulations. All this was despite every effort being made to build good relationships.
The mission was the largest electoral mission in Zambia and, as such, was regarded as the lead organisation for briefing the various co-ordination meetings. It enjoyed excellent relationships with all the stakeholders, apart from the ECZ, and there was considerable co-operation and solidarity of approach and agreement on the key points of criticism, both in the campaign period and the conduct of polling day and its aftermath. The domestic monitoring organisations were significantly more trenchant in their conclusions on the election.
There is a need to follow up the elections with support for the parliamentary institutions and party groups therein, and also for those NGOs who wish to develop an interaction with the new legislature.
Improvements in the electoral administration and machinery will depend on there being a change of attitude on the part of the ECZ. The EU should maintain its genuine concern for the quality of democracy in Zambia and its support for the citizens of Zambia who turned out peacefully in high numbers to make their democratic choice and who deserved better.
The mission’s specific recommendations are summarised as follows:
There should be an urgent review of the powers of the Electoral Commission of Zambia. If it is not feasible to revise the wording in Clause 76 of the Constitution, then an addition to the Electoral Commission Act should be considered which would give the maximum agreed interpretation of such a Clause in relation to the role of the Electoral Commission in securing the highest quality of elections. We also recommend that the law relating to the composition of the Electoral Commission be reconsidered with a view to widening the basis of membership and giving the National Assembly the power to approve or refuse nominations, perhaps with a weighted majority. (in context)
Before the next scheduled elections in 2004 there should be a consolidation of the laws and regulations governing the electoral process. (In Context)
In any constitutional review consideration be given to replacing the prescriptive number of Assembly seats with a set formula for determining a maximum number. A fresh delimitation exercise is in any case well overdue. (In Context)
The necessary equipment should be purchased to enable voting cards to be issued, with photographs taken and the cards laminated on the spot, to enable voters to obtain their cards on a single visit to the registration centre, and consideration should be given to amending the law so that the possession of a National Registration Card is only one of a number of possible means of demonstrating one’s qualification as a voter. (In Context)
The ECZ should have the resources to hire its own staff rather have to rely on what are in effect secondments. (In Context)
Whilst 500 voters is a satisfactory average figure for a single polling station, 1250 should be regarded as the maximum. (In Context)
The provision of adequate lighting should be added to the list of equipment for each polling station. (In Context)
The ECZ should produce the basic material from the new voters’ registers on CD-ROM as a matter of course and make the disks available free of charge to the political parties and relevant NGOs. (In Context)
Consideration should be given to increased safeguards on the secrecy of the ballot, and also to including a prohibition on the use, or of the threat of use, of individual election statistics to discriminate against a particular locality within the electoral law. (In Context)
For future elections two Returning Officers should be appointed for each constituency, one to oversee and troubleshoot the polling districts on polling day, through to the completion of the polling station count, and the other to be responsible for the tabulation centre, coming on duty from, say, 20.00 on polling night. (In Context)
Michael Meadowcroft
rev 26 May 2002
D:\Zambia\FinalReport-1-am.doc
[1] For
further
background information see the Mission’s
website: www.eueu-Zambia.org
[2] "Selsey Report", Study to identify support to the Electoral Commission of Zambia, March 2000
[3] A later estimate of the total amount of funding by the EC and by Member States to the whole electoral process came up with the figure of 12.1 million euros.
[4] Financing Agreement between the Commission of the European Communities and the Republic of Zambia, Ref ZA/7027/000.
[5] "The Oasis Declaration", Public Debate on the Proposed Amendment of the Constitution of Zambia, 21 February 2001.
[6] ZRP, led by B Y Mwila, FDD led by Christon Tembo, Heritage led by Godfrey Miyanda, and Patriotic Front led by Michael Sata. In all, by the dissolution of Parliament, 39 of the original 131 MMD MPs had left the party.
[7] Zambian National Broadcasting Company (ZNBC) with both television and radio, the Times of Zambia, the Daily Mail, the Sunday Times and the Sunday Mail.
[8] Annex A
[9] See EU EOM First and Second Interim Reports for evidence on the second and third criteria; on the first criterion the controversy surrounding the ECZ's maladministration of the electoral process led to calls for the resignation of its Chairperson, Justice B M Bwalya by some NGOs, including the NGO Co-ordinating Committee.
[10] See First Interim Statement and Report on Voter Registration (website op cit)
[11] The turnout in 1991 was 45%, and in 1996 56%.
[12] Commission Communication on EU Election Assistance and Observation (COM (2000) 191 final)
[13] Zambia Presidential, Legislative and Local Elections, November 2001, EC Exploratory Mission, July/August 2001, Preliminary Report, 9 August 2001.
[14] The Republic of Zambia, Ministry of Foreign Affairs, Note No 1233/01, 31 August 2001.
[15] Project Description, EUEU Zambia, 4 October 2001.
[16] Section 14, the Electoral (Presidential Elections) Regulations 1991.
[17] Electoral (Amendment) Act 1996.
[18] Electoral Commission Act 1996.
[19] The Electoral (Conduct) Regulations 1996. See below for more detailed discussion of this law.
[20] Discussion at US Information Centre, 31 May 2000 ("Monitor", 2-8 June 2000); Coalition 2001 television programme on ZNBC, 13 August 2001.
[21] The Times of Zambia, 21 December 2001.
[22] However the EC Head of Delegation protested at this charge, in view of the scale of EC and Member State financial assistance to the ECZ, and it was quietly ignored for all EU observers - to the annoyance of other international observer missions.
[23] Code of Conduct for Election Observers, Electoral Commission of Zambia, 2001 Tripartite Elections, October 2001.
[24] Legally the ECZ was only entitled to supply copies of the voters' register to parties etc at "the cost of producing such a copy" (Section 59, The Electoral (Registration of Voters) Regulations 1973), but its decision was never challenged in the courts.
[25] Statement of D N Kalale, Director ECZ, to All Provincial Electoral Officers, and Electoral Officers, 26 December 2001.
[26] The High Court for Zambia, Zambia Reconstruction Organisation v Electoral Commission of Zambia, 17 December 2001, before Mr Justice TK Ndhlovu. ref 2001/HP/1128. Immediately after the hearing, the NGO involved, ZAMRO was excommunicated from the ECZ National Committee for Civic Education of which it had been a founder member.
[27] See below page 14 (Kitwe MMD rally), page 16 (Presidential debates), pages 22/23 (Observer fees etc)
[28] An undated statement from the ECZ on the elections which, from internal evidence was published in mid-January 2002 on the occasion of the SADC conference, and made available to diplomatic missions, states that the Constitution, under Articles 76 and 77, provides for the independent and autonomous Electoral Commission to oversee the electoral process in this country. The word independent does not appear in the Constitution in relation to the Electoral Commission.
[29] Report of the ECZ, undated but received 16 January 2002.
[30] The President can also nominate a further eight Members of the National Assembly, and the speaker is also an additional Member.
[31] For provincial details see Annex B - note done for LTO Briefing Book.
[32] First Interim Statement, 17 December 2001, see website op cit.
[33] Report of the ECZ op cit.
[34] Letter from David Diangamo, Director of Census and Statistics, to Michael Meadowcroft, 5 November 2001
[35] i.e. Presidential, 150 Parliamentary constituencies, and 1287 local government wards.
[36] The Times of Zambia, Daily Mail, 26 September 2001.
[37] Section 47, The Election (General) Regulations 1991.
[38] See below, page 29
[39] Section 2 of the Electoral (Amendment) Act, 1996.
[40] Section 21 (3) of the Electoral Act, 1996
[41] By Anderson Mazoka (UPND), by Lt-Gen Christon Tembo (FDD), and by Brig-Gen Godfrey Miyanda (Heritage Party).
[42] 11 by Heritage Party, 9 by FDD, 4 by UNIP, 4 by UPND, 4 by ZRP, 3 by PF, 2 by MMD, 1 by an Independent, and two are unidentifiable by party.
[43] such as the troika representations to the ECZ on 20 December 2001.
[44] Meetings at the ECZ 13 November and 22 November 2001.
[45] Summary of LTO Reports, LTO Co-ordinator, January 2002, Annex D
[46] Summary of LTO Reports, op cit.
[47] Correspondence between Michael Meadowcroft and the Office of the President - Cabinet Office.
[48] The High Court for Zambia, the Law Association of Zambia and the Civil Servants Union of Zambia v The Attorney-General, 4 December 2001.
[49] Section 9 (2), the Electoral (Conduct) Regulations 1996.
[50] The High Court for Zambia, Institute for Southern Africa Development Ltd v Trinity Broadcasting of Zambia Ltd, 3 December 2001.
[51] with the sole exception of Daniel Munkombwe in the Choma constituency
[52] Under Section 22 of the Election (General) Regulations 1991.
[53] Section 23 (1) ibid.
[54] Section B 4 (k) of the "Electoral and Presiding Officers' Handbook".
[55] Some indication of the number of postponed local election polls can be gleaned from an (undated) ECZ report, "Presidential, Parliamentary and Local Government Elections", which states that "As at 12th January 2002, results for the Local Government elections had been received from 1043 of the 1287 council wards".
[56] Comment from ECZ to Chief Observer and feature article in The Times of Zambia, 19 February 2002
[57] Electoral (Registration of Voters) Regulations 1973, Section 5 (1) (a).
[58] Electoral and Returning Officers Handbook, Part 1, Section 1.
[59] ibid, Part 1, Section 7.
[60] ibid, Part 1, Sections 14 and 15.
[61] ibid, Part 1, Section 65 (e).
[62] ECZ "2001 Presidential, Parliamentary and Local Government Elections", undated but approximately 14 January 2002.
[63] Annex E
[64] Section 5 (a), Electoral and Presiding Officers Handbook.
[65] Section 23 (2), the Electoral (General) Regulations, 1991 (but not in Electoral and Presiding Officers Handbook)
[66] See note 28
[67] ECZ op cit.
[68] Appendix 5, Electoral and Returning Officers' Handbook; Appendix A, Electoral and Presiding Officers' Handbook.
[69] Minutes of the ECZ Consultative Committee on Election Observers, 12 October, 7 November and 4 December 2001.
[70] See Section 4 and footnote 25 above.
[71] Meeting with ZAMRO officers, 19 December 2001.
[72] Section 68, Electoral (General) Regulations, 2001.
[73] Advertisements in local newspapers, Appendix E of Electoral and Presiding Officers' Handbook, and Section 91 (b) of Electoral and Returning Officers' Handbook.
[74] Section 59, Election (Registration of Voters) Regulations 1973 (emphasis added)
[75] Minutes of meeting, 7 November 2001, Election Observers Advisory Committee, (additional minute agreed at the subsequent meeting.)
[76] Letter of 26 November 2001 from Judge B M Bwalya, Chairperson of the ECZ to Dr Jochen Krebs, Head of EC Delegation.
[77] The Electoral (General) (Amendment) Regulations 2001; see also articles in Sunday Mail, 9 December 200, and in The Monitor, 25-30 December 2001.
[78] Section 5, Election (General) (Amendment) Regulations 1996.
[79] Page 24, Electoral and Presiding Officers' Handbook; if, however, "where there are more representatives to carry than the capacity of the vehicle, it is advisable not to carry any one of them".
[80] Section 72 (b), Electoral and Returning Officers' Handbook; subsequent sections deal with the details of the tabulation procedure, including detailed guidance on invalid ballot papers.
[81] Op cit, Section 78 (a).
[82] See Chapter 4, Institutional and Legal Framework.
[83] Page 23, "Stage Four", section (b), op cit.
[84] section (c), op cit.
[85] Page 32, final paragraph of section 77, op cit.
[86] Section 79 and Appendix 23, op cit.
[87] EUEU website, op cit.
[88] Times of Zambia, article by Samuel Ngoma, Political Editor, 19 February 2002..
[89] Sections 72 and 73 of the Electoral (National Assembly Elections) Regulations 1973, and Section 84 and Appendix 24 (Form GEN 10) of the Electoral and Returning Officers' Handbook.
[90] Advertisements in the Times of Zambia, the Zambia Daily Mail and the Post, 12 January 2002.
[91] All three reports are on the EUEU website, op cit.