By PETER SINKAMBA*
LET me add my voice to the pro-PVT advocates, considering that there is now a stalemate. The Head of State, his ministers and ECZ insist that the tabulation system is illegal while LAZ and other well-meaning stakeholders find no illegality in the system. This stalemate will only be brought to finality through a judicial review. We therefore call upon LAZ to commence judicial review proceedings in public interest.
From our lay understanding, we find no contention on the fact that computation and tabulation of elections results is a statutory exclusive mandate of the Electoral Commission. According to Section 14 of the Electoral Act No. 12 of 2006, the registration of voters and the conduct of every election must be subject to the direction and supervision of the Commission. By virtue of Section 15 (1) of the same Act, in respect of any election, the Commission has power to appoint for any constituency or province such election officers as it may deem necessary for the purposes of such election.
In this section “election officer” means a person appointed by the
Commission to be-
(a) a registration officer;
(b) an assistant registration officer;
(c) an electoral officer;
(d) a returning officer;
(e) a presiding officer;
(f) a polling assistant;
(g) a counting assistant;
and includes any person appointed to assist an election officer under subsection (2) under which law polling agents, election observers, election monitors, etc. are appointed.
When the above listed electoral officers are appointed by ECZ in pursuant to Sections 15 (1) and 15(2), they become officers of ECZ. Therefore, the functions that these people perform during the conduct of the election become statutory under the Electoral Act.
For example, if someone is appointed as a counting assistant, and that person counts votes during an election; and then he or she submits the results to the returning officer, who in turn officially announces the results and declares the winner, where is the illegality? If a duly appointed counting agent or other election officer sends results to a friend or an associate when the results have been duly declared by the returning officer and posted on the notice board, where is the illegality?
Section 14 (1) and Section 16 (6)(f) which the anti-PVT advocates often cite only prohibit declaration of results before the same are declared by ECZ. But where is the illegality to transmit already declared results?
Perhaps what is important to clarify is the issue of declaration. At what point are results of an election considered declared by ECZ? Or indeed, whose responsibility is it to declare results? Is it the
responsibility of Director of ECZ or the returning officer?
According to the Electoral Act, the only person authorized to declare results of an election is the returning officer. Once a returning officer has declared the results, it is considered that (it is) ECZ that has declared the results. The returning officer ought not necessarily be an employee of ECZ per se, but someone appointed as such in accordance with the Act. It doesn’t matter these are presidential, parliamentary or ward, but the number of votes collated (in) any ward are declared at
polling stations.
As regard to winners, these are declared at the polling station at the polling station and results posted on the public notice board. As for parliamentary elections, winners are declared at civic centres after receiving and collating results from all polling stations. As for presidential, winners are declared in Lusaka by the Chief Justice, who is the returning officer for that election after collating results from all districts.
Once results are declared at polling stations, neither the ECZ Chairperson nor ECZ Commissioners have powers to reverse the declared outcomes, regardless (of) the error in the declaration by the returning officer. Only the High Court and Supreme Court have powers to reverse declarations of returning officers. The law also empowers the court to determine questions arising from the elecroral process. This being the case, we feel it is high time LAZ sought court intervention on the
interpretation of the law as regard PVT vis-a-vis and independent vote tabulation.
*Peter Sinkamba is Interim Secretary (Mobilization) – People’s PACT.
(Contact us at editor@zambianewseditor.com)