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.
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.
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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