More focus is needed to increase public confidence in poll processes

In the aftermath of what the Zambian opposition claims was a stolen election — and what international observers agree was a seriously flawed poll — the opposition faced a dire choice.

They could go to the streets and use popular protest to pressure the electoral commission to rescind their proclamation of the president-elect, or they could make use of the legal avenues available to them.

Facing this unattractive choice, the United Party for National Development (UPND) opted to challenge the process through the court.

This decision highlights the importance of presidential petition processes as a way to minimise social tension and to prevent a turn to protest or violence following a contested election.

Violence ensued in Kenya, for example, following the disputed election of December 2007, when the principal opposition party — the Orange Democratic Movement — called people out onto the streets arguing that they had no confidence in the judiciary, which they declared had been filled with government loyalists.

Kenyan case is, however, unusual for the level of violence that followed. Nevertheless, the post-election violence of 2007/8 — followed by Kenya’s relatively peaceful election of 2013 when the political opposition again cried foul, but took their dispute to the Supreme Court — highlights the importance of a recourse to legal action as a pressure valve for social tension.

However, the recent experience of petitioners in presidential elections in Zambia, but also in countries such as Uganda and Kenya, raises concerns that people may increasingly see little point in going to the courts. Given the alternative, this development demands that even more attention be given to increasing public confidence in the electoral process.

In Zambia for example, UPND challenged the election on the grounds of an uneven playing field and problematic process. The UPND argued that the government’s suppression of people’s freedom of movement, speech and press in the lead up to and immediate aftermath of the poll, together with high levels of intimidation, were sufficient grounds to overturn the result.

The opposition also claimed to have evidence of significant ballot stuffing that had pushed the incumbent, President Edward Lungu, over the 50 per cent plus one vote threshold to win the election in the first round. The UPND were thus confident that they had sufficient grounds for overturning the election outcome.

But the petition was never heard. Under the amended constitution, the petition was to be submitted within seven days and heard within 14 days of filing.

After intense wrangles between the judges and the UPND’s lawyers followed by a number of adjournments, 52 out of 80 of the opposition’s witness statements were thrown out for lack of time and for having been “improperly filed.”

The court then ruled on September 1 that the matter needed to be concluded by midnight on September 2 — at the expiry of the 14 calendar days since filing — though they had not yet begun to hear it.

On September 2, the opposition’s lawyers staged a mass walkout, protesting against the two hours allotted to hear their petition. In a dramatic twist, following an impassioned speech by the UPND’s candidates, the full bench ruled shortly before midnight that the petition would be heard the following week and would continue until September 8.

However, when the court resumed on Monday morning, it ruled that the time for hearing the petition had expired and to continue with the case would be unconstitutional. This decision was reached by three of the six judges, with the two most senior judges dissenting and one abstaining.

Relatively short timelines in which to gather evidence for, and to then hear, a petition, were also a problem in Kenya following the 2013 election — although timelines were not as truncated as in Zambia.

Such failure to adequately dispense justice in presidential petition processes is not unusual, and in this regard, the Ugandan presidential petition earlier this year was also instructive. The Ugandan petitions process requires that within 10 days, the candidates themselves must approach the court, rather than allow for a proxy to petition the result on their behalf.

Dr Kizza Besigye — the losing opposition candidate — was unable to present his case to the court as he was incarcerated from the day after the election and was later charged with treason.

In response, the third-placed candidate then submitted a petition questioning the results — but the case was severely constrained following a break-in at the petitioner’s lawyers’ offices in which the evidence for the case was stolen. After contesting the results on procedural grounds, the opposition’s case was thrown out and the incumbent sworn in.

These examples draw attention to the challenges posed by particular rules — such as extremely tight and constitutionally determined timetables, and the necessity of a petitioner’s presence — which can be seen to determine the outcome in favour of establishment candidates. It also highlights the challenges posed by more direct interventions and intimidations.

They, therefore, raise questions about whether reforms are required, for example, to extend the petition process to allow more time to prepare for, and to then hear them. This would obviously introduce a longer uncertain transition period, but it may also help increase public confidence in these key institutions in the longer-term and prevent popular protests and violence.

Either way, discussions need to continue since opposition parties and their supporters must be able to feel that they have recourse to the law in cases of badly-managed elections.

The case must be seen to receive a fair hearing and justice must be seen to have been dispensed. When this doesn’t happen, the opposition is likely to continue to protest the outcome of the polls, encouraging their supporters to disregard state institutions and judicial processes and engendering further scepticism regarding the management of future election processes.

Nicole Beardsworth is a PhD candidate and Gabrielle Lynch an associate professor of comparative politics at the University of Warwick in the UK — @GabrielleLynch6; @NixiiB