AGA trains prosecutors to handle election petitions

 

Voters during the August 12 general elections.

JACK ZIMBA
Lusaka

THE elections are over, but the election process is not.
After every vote has been counted and announced, then come the petitions, as aggrieved candidates who did not deem the process free and fair, take their cases to the courts of law.
Post-election disputes have become a common feature in Zambian politics, with the first parliamentary election petition dating as far back as 1968.
The first presidential election petition, however, was filed in the Supreme Court in 1996 by Akashambatwa Mbikusita Lewanika, Hicuunga Kambaila, Dean Mung’omba, Sebastian Zulu and Jennifer Mwaba against Frederick Chiluba.
The petitioners’ contention was that President Chiluba, who had just been elected to serve another five years as President, was not eligible to stand for president because neither he nor his parents were citizens of Zambia by birth or by descent as required by the Republican Constitution.
Since then, the country has been recording an increasing number of election petitions.
In the aftermath of the 2001 general elections, 41 parliamentary seats were petitioned, while 43 petitions were filed in 2006 and 68 in 2011.
After the 2016 general elections, the High Court handled 86 parliamentary election petitions, plus one petition filed in the Constitutional Court for the presidential election.
Out of the 86 petitions, 23 were withdrawn or discontinued, four were dismissed at a preliminary stage, while 53 were heard and the elections upheld, and six were held and the elections nullified.
There were also 58 petitions at local government level, bringing the total number of petitions to 145.
And now, barely a month since the general elections, won by the United Party for National Development (UPND) and its leader Hakainde Hichilema, some losing candidates have started filing petitions, citing various electoral violations.
Just a few days after the elections, two losing UPND parliamentary candidates in Eastern Province indicated that they would petition the elections against two independent candidates, while some petitions have already been filed.
The Patriotic Front (PF), which lost the elections has constituted a petitions committee to challenge the results in 12 constituencies in North-Western Province, alleging violence.
It is against this background that the Attorney General Alliance Africa (AGA) recently trained over 40 Zambian prosecutors in handling election petitions.
AGA-Africa organises workshops, seminars and conferences, aimed at sharing knowledge, experiences, and training to develop and strengthen both the human and institutional capacity required to combat transnational crimes.
The three-day virtual workshop was organised in collaboration with the National Prosecution Authority (NPA).
It was the ninth workshop that AGA Africa held in conjunction with the NPA, with over 400 participants trained so far.
Freda Mwamba-Brazle, who is AGA-Africa country coordinator, underscored the importance of having such training for prosecutors, especially at a time when the country was heading to a crucial general election.
“Elections are a major factor in maintaining the stability of democracies and, therefore, electoral disputes are inevitable.
She commended the Department of Public Prosecutions for proactively equipping its prosecutors with knowledge, tools and expertise, ahead of the elections.
“It is for this reason that this training comes at the most opportune moment, to build the capacity of prosecutors in the management of electoral cases so as to ensure that the best evidence is brought to court,” she said.
“AGA is very proud of the collaborative partnership we have with NPA,” she added.
The workshop had input from legal experts from the United States of America, Kenya and Malawi, as well as experts from the Zambian judiciary and Electoral Commission of Zambia, as well as the Zambia Police.
They all shared not only their knowledge about handling election disputes, but also the experiences in their respective countries.
Victor Mule, who is deputy director in the Office of the Director of Public Prosecutions of Kenya, said one of the emerging challenges in dealing with electoral offences is hate speech propagated via social media.
“With technological advancement, widespread and extensive use of social media, most offences are committed on different platforms of social media,” he said.
However, he said there are admissibility challenges of social media evidence when the cases are brought to court.
With the increasing use of social media, this will be an area of interest for Zambian prosecutors as well.
According to Chalwe Mchenga, S.C., who is deputy president of the Court of Appeal, and was one of the fascilitators at the workshop, electoral offences in Zambia are mainly prosecuted under two laws: the Electoral Process Act of 2016 and the Penal Code.
Under the Electoral Process Act, offences dealt with are bribery, where a candidate or agent offers money in order to influence the voter; then there is undue influence, which includes the threat of violence meant to influence how people vote, or to prevent them from voting at all.
There is also impersonation, where a voter or candidate registers in the name of another person, or where a person who not eligible is allowed to register as a voter.
It also covers illegal practices that deal with publication of false news, disruption of meetings or using forged documents to register, and interfering with ballot papers.
However, Mr Mchenga said in most cases police deal with serious electoral offences such as theft, vandalism, assaults and murder under the Penal Code.
“In practice what we see in courts is that the bulk of the electoral offenses are not prosecuted under the Electoral Processes Act, the bulk of the offences are prosecuted under the Penal Code,” he said.
He said most of the cases relating to elections are prosecuted by the subordinate court, except the more serious ones such as murder.
“We have seen murders and manslaughters that can be said to be electoral offences,” said Mr Mchenga.
Police are still investigating the killing of Jackson Kungo, who belonged to the PF in North-Western Province. He was killed on poll day.
Mr Mchenga said there is a general notion that the courts allow offenders to get off lightly because in most cases offenders found guilty under the Electoral Process Act are only made to pay fines.
He said this is the more reason why the police do not usually charge electoral offenders under the Electoral Process Act, but under the Penal Code instead.
Mr Mchenga said because the courts do not carry out investigations but rely on available evidence, there is need for hard evidence.
“Our expectation is that there will be thorough investigation; the prosecutors will have been satisfied that the evidence at hand can prove the offences that they have brought to court beyond any reasonable doubt,” he said.
He said if the investigations are not properly done, it results in acquittals.
“All in all, the key players in the prosecution of electoral offences are the people who investigate and the people who make the decisions whether a case should be investigated at all,” he said.
He said while it is desirable that the cases are heard speedily, they usually face delays due to factors such as insufficient evidence or unreliable witnesses. 
He said credibility of witnesses is a common problem when prosecuting electoral offences as in many cases witnesses may have been paid.
“You find that in many instances, with a few exceptions, the people who complain are persons from the opposing political party so issues of witnesses with possible interests do arise,” he said.
“The best way to deal with electoral offences is to stop them from happening in the first place,” he said.
Nkumbiza Mumba, who is NPA chief state advocate, said because of the competitive nature of elections, disputes are inevitable, which calls for prosecutors to be proactive.
“There is need for the National Prosecution Authority to be pro-active and well equipped to effectively deal with electoral related offences. The equipping of prosecutors with the necessary tools for prosecuting electoral offences will ensure the integrity of the electoral process,” she said.
She described the training as an eye-opener, especially that it was held just a few weeks before the general elections
The workshop focused on common trends in election offences, international best practices, challenges and possibilities.
“This will go a long way in helping prosecutors and the National Prosecution Authority to be a key stakeholder and effectively fight electoral offences,” she said.
She thanked AGA Africa for their dedication and for holding the workshop even under the restrictions caused by the Covid pandemic.
“The training reminded us of the need to be equipped with the necessary tools to prosecute electoral offences,” said Ms Mumba.
And so as the winners in the August 12 elections settle down to work, some of the candidates who lost will be busy proving their allegations of electoral malpractice in court.