Saturday, 18 January 2014

Seeking Fairness, Consistency and Reliability in Election Nullifications

We at the Brutal Journal absolutely also think, while the nullification of the seats is a deterrent to actions of donations that border on vote buying in future elections, it is procedural unfairness of the law that has focused on the winners and ignored the similar wrongs committed by losers that is problematic. The nullifications somehow show that justice should only punish those whose crimes benefit them and ignore losing candidates whose bribes failed to benefit them.  It is like a stabbing that kills is a crime and one that does not is not.
By Nyalubinge Ngwende
Three years after going to the polls, Zambia is yet to put behind the results of the September 2011 general elections.  This is because the Patriotic Front (PF) losing parliamentary candidates are still contesting the result of the polls, claiming the winning opposition candidates—especially from the former ruling Movement for Multiparty Democracy (MMD)—engaged in donating money, other valuables like bicycles and cell phones to electorates and asked them for votes. 

As a result the Supreme Court has nullified a number of the parliamentary seats causing several by-elections.
While it is not in Zambia’s interest to have MPs who win elections through malpractices, it is also not in the good interest of justice to see a huge number of court cases that leave the public dissatisfied with court outcomes. Even of greater concern is when there is seen many inconsistencies between the High Court and Supreme Court in the interpretation of the law concerning parliamentary election petitions. This is because the several MPs whose seats have been nullified at Supreme Court level were declared as duly elected by the High Court Judges. 

We strongly feel that the overturning of so many decisions of the High Court that upheld the duly elected candidates in favour of petitioners is trying to tell us there are so many errors at High Court level, hence the spectacular corrections at Supreme Court. This gives the nation worries how principles guiding the electoral law on donations or bribes sets the two court levels against each other.

A pattern where all MMD MPs who have been vocal in parliament had their seats nullified raises eyebrows, too. 

Just take a look: In the petition appeal case against MMD Mafinga MP Catherine Namugala, the Supreme Court agreed that she made donations to the churches, but decided to uphold the High Court ruling that the donations did not influence the outcome of the election in her favour, thereby declaring her as duly elected.

Others, like Solwezi Central MMD MP Lucky Mulusa and her Kasenengwa compatriot Victoria Kalima (who have been highly vocal and demanding for the removal of the Chief Justice Lombe Chibesakunda) made donations the basis on which the Supreme Court went to overturn the High Court judgment that upheld their election, following petitions by PF’s losing candidates. Mulusa was punished for donating K1,000 to a church and promising a key board to a youth choir while Kalima pays a price for distributing bicycles.

The consistence in the kind of donation that can influence the outcome of an election is lost when seen from the outcome of the three cases. Was a fair outcome reached in Mulusa and Kalima’s cases?   Does the outcome of the Namugala case make the Supreme Court decisions on donation-cum-bribe cases during elections reliable or fleeting depending on the relationship between the respondent and the Judges on the panel? Or is it that the witnesses in Namugala’s case were not the ones who actually got the bribe and those who submitted against Mulusa and Kalima were the actual beneficiaries thereby making their evidence more reliable more than that for Namugala? These questions beg for genuine answers!

We at the Brutal Journal absolutely also think, while the nullification of the seats is a deterrent to actions of donations that border on vote buying in future elections, it is procedural unfairness of the law that has focused on the winners and ignored the similar wrongs committed by losers that is problematic. The nullifications somehow show that justice should only punish those whose crimes benefit them and ignore losing candidates whose bribes failed to benefit them.  It is like a stabbing that kills is a crime and one that does not is not.

We say this because the practice of donations in elections is inherent in our election campaigns and that these electoral crimes have and were not only committed by the winning MMD or UPND MPs, who so far are having their seats nullified in the Supreme Court rulings, but losing PF candidates also made donations. This is probable because the losing candidates only cried about bribery after seeing that they had lost the election and their party had won the presidency.

President Sata has his own views about the nullifications. “The trend appears to be negative on the MMD because corruption was inherent in this party that is the simple reason why,” he was quoted by the Sunday Mail.

But does the ruling PF have a clean sheet when it comes to giving donations during campaigns?

Scott donates K13 million to market during  Livingstone by-election
The recent by-elections happening after the September 2011 proves otherwise. If it still refuses to this truth, PF should tell the nation what it was, if not bribing the electorates, when vice president Guy Scott stepped foot in the Chizela New Apostolic Church in Mufumbwe and donated K3,000 (K3 million) amidst campaigns for the by-election in October 2012? Apparently, this was a by-election that followed the resignation of Stephen Masumba from MMD to join the Patriotic Front after being bought off with a deputy ministerial position by President Sata. 

Wynter Kabimba also donated K15,000 (K15 million) to a church in Feira constituency to drum up support for its candidate Patrick Ngoma in the by-election? The Feira by-election followed President Sata bribing MMD MP Patrick Ngoma with a deputy ministerial position and asking him to defect to the ruling party. Sata even chose a perfect moment to get Ngoma announce his defection from MMD—the launch of a road tarring project in the same area, promising people that more development would come if they voted for Ngoma who was defecting to the ruling PF. 

Unfortunately donations made by a head of state, his vice president and ministers lie in the gray area of the electoral malpractices law and are hardly perceived as bribery to voters. 

Most of the times we have even heard leadership in power telling us elections cannot stop government from responding to different needs of its people. When government gives, it is a gift to its people but when the opposition give it is a bribe.

The reason why the losing opposition MPs are not taking these matters to court are well known to themselves. But the reason why losing candidates of a party that forms government take these matters to court is because they desire to be appointed to cabinet that comes with monetary benefits and other privileges. That comes when one has a parliamentary seat. 

We at Brutal Journal also think that selfish interest motivates these petitions...not necessarily the mere having to sit in parliament. The party in power encourages these petitions and might as well use all power at its exposal to ensure the petitions go in favour of its candidates. It requires numbers in parliament to pursue hidden political agendas that they know may be too silly to be supported across party lines in parliament. They know with their own MPs, collective responsibility supersedes commonsense and silly things will be voted for. 

The PF has particularly been in pursuit of hidden agendas, including trying to sneak into the constitution, we have been hearing, a new clause that allows two Presidential terms of eight years each from the current five years. There has been talk from Justice Minister Wynter Kabimba about the desire of Zambia going back to a one party system democracy. This is unlikely with the hang parliament that Zambia had after the 2011 elections, but could become as simple as walking into a play park with the PF managing to grab more seats in the house through by-elections as a result of petitions and induced defections from the opposition to the ruling party. 

In fact the PF desire to seek more parliamentary seats for the agenda known to itself—but pointing to some of the things above—was confirmed by Wynter Kabimba’s statement on ZNBC TV that the PF central committee advised its losing parliamentary candidates who felt they had been robbed by MMD candidates to petition the election. How does he mean? The September 2011 elections were not the first that the PF parliamentary candidates contested and lost to MMD candidates in large numbers. In 2006 PF candidates still suffered huge parliamentary loses and there was no desire for petitions and there was no such motivation to petition. Does Kabimba now know the formula of winning petitions and going to win by-elections? Is that formula the reason why the Supreme Court now has seen sense in Lucky Mulusa’s request for it to setup a tribunal that should investigate Kabimba for interfering with the judiciary to influence the outcome of elections petition cases in favour of the PF?  

It is when the situation comes to this that sometimes opposition leaders are justified to cry foul over the court verdicts concerning nullification of seats for their MPs. And it is not wrong for the civil society and the citizens, who want these laws to fairly govern their electoral system, to complain over maladministration of justice. 

Further the laws must seek to restore a fair balance for all who participate in elections for both winners and losers. If both losers and winners engage in corrupt acts, the country’s electoral management system must be able to inform the justice system so that it is not just the winners who have to bear the wrath of justice. If the managers of the election fail to ensure they provide a basis of equality in these cases, the courts must have the mechanism to summon appropriate information to its course of settling petition cases. One of the appropriate information is to establish whether the petitioner evidence of donations-cum-bribes had the significance to tilt the election against the losers.

Adjudicating cases of election petitions must also take a different procedure, from only putting the respondent on trial. It must be administered in a way that the court should seek to establish whether the petitioners themselves did not engage in similar acts that unfortunately failed to produce winning results. As seen so far, most candidates only tend to cry loud about opponents making donation-cum-bribes, which take place during campaigns, after the votes are counted and they have lost. There is nothing to be restored for a winning candidate when it surfaces that a losing candidate had in fact engaged in similar donations. It is here where the law loses its balance in purpose. It is not up to the courts to investigate these cases of whether a losing candidate also bribed electorates during elections. 

Our politics are so fluid and for one purpose: party members defect and join political parties in power for the obvious benefits of ‘it pays to belong to the ruling party’. It is easy for the members of a ruling party that loses power to move to the former opposition that forms government. Such unstable political elements are willing to become witnesses and say anything against the leaders of their former political parties in order to be accepted and receive favours from the new regime. The court must treat the evidence of some voters who shift from the party that loses power to the one that forms government with contempt of vested or selfish interests.

This is why ECZ and monitoring groups who declare the polls free and fair must be the second and third witnesses in these cases other than leaving justice to be determined on the evidence of disgruntled witnesses. Why shouldn’t the law also find a way to de-fertilise the ground for having such elements that are ready to receive bribes by ensuring that they are also punished?

The other question that troubles the Brutal Journal at present is over claims by President Sata and Justice Minister Wynter Kabimba that the MMD was a highly and widely corrupt party that engaged in bribing voters to win elections. If MMD was corrupt and won its seats in its stronghold constituencies by bribing voters, does it mean the party’s candidates who lost in places like Southern province, Copperbelt and Lusaka provinces did not engage in corruption?   If they did, how possible is that the bribes that made MMD to win elections elsewhere failed to do so in other places? While the outcome of election bribes cases cannot be determined from the universal practice of the candidates of a particular party that is suffering nullification, but from each particular case, however, the basis of decision must be seen to be unbiased, consistent and reliable. If an election was won by a margin of 800 votes, could a donation to a church of 200 members be a basis of nullifying the election?  There is need to ensure that what causes the nullification and call for a fresh poll excluding those involved in donations-cum-bribes is the action and not its significance in influencing the result. 

Further those who go as witnesses in election petitions tell us that they were willing subjects to the offense and went to vote based on a bribe. And why should laws fail to see need to punish such accomplices. It takes two to tangle. Can a candidate manage to bribe all those who went to vote for him? It is a million dollar question. But why should the votes of all others who voted out of their will be cancelled by a few ‘disgruntled’ voters who took a bribe, remained quiet about the bribe until after polling day? ECZ must surely come in to stop this kind of carelessness. The procedure for petitions should be based on reports of bribes they receive before the actual day of the poll. But again, it is only a willing accomplice who can agree to take a bribe, fail to report it and still go and vote for the bribing candidate and willingly walk into court to nail the candidate against the petitioner. The whole matter appears a strange conspiracy!  

With the number of cases on which the Supreme Court is extinguishing itself by being keen at nullifying elected MPs of the opposition tells us that the country needs to do more to make the rules of the election become dependable to ensure justice in the courts of law. 

A number of nullifications of parliamentary seats that come after overturning a number High Court decisions, the absence of ECZ’s evidence in the petition cases after declaring the elections free and fair and relying on likely disgruntled elements whose motive has already shown levels of selfishness as witnesses, just tells us that certain things must change to ensure fair interpretation of the law so that just outcomes are arrived at by our courts in election petition cases.
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