Why the Constitutional Court Could Set Aside Any PF Presidential Victory.

By Dr. Munyonzwe Hamalengwa
July 21, 2016

The PF has committed so many corruptive, fraudulent, bribery, violent and rigging practices during this election cycle that any independent and law-fearing and abiding Constitutional Court would set aside any PF Presidential election victory. Much as I have no confidence in any constitutional court overturning a presidential election victory, even with rigging, fraud, bribery and violence etc having been established, the suits of petitioning the election results are still mounted all over the world. There are just no precedents for overturning these results mostly because the judiciaries are compromised or not independent enough. We still have some very strong and independent courts in South Africa where the judiciary can actually vote against a sitting president. So hope still reigns supreme. No hope, no life, no future. So we can never lose hope.

There is massive evidence upon which the Constitutional Court of Zambia could overturn the election result if the PF won this election, assuming the prerequisites of independence, non-compromise and the strength of the court are met. The following is a partial listing of the rigging,fraud, bribery, violence and other underhandedness the PF has committed, all these amounting or capable of amounting to this election not having being free and fair. The reader can add more as this list is not exhaustive:

  1. The alleged statement by President Lungu that Luapula will not be developed if they don’t vote for PF thus implying retaliatory or reprisal action against the voters in Luapula and anywhere in Zambia who don’t toe the line. This is one of the worst forms of intimidation, bribery, fraud and day-time vote buying you can ever come across. A province of Zambia has to be punished if it’s voters exercise freedom of choice! And this threat and intimidation coming from a sitting president, a president who controls every expenditure of the Kwacha in this nation! There can be no greater electoral malpractice than this.
  2. The VP Inonge Wina is alleged to have told voters in Masaiti that the area is not developed because it voted for the opposition or something to that effect. This is reprisal and retaliatory action against the people of Zambia. No leader should punish any constituency, district, province and people of Zambia for exercising their freedom of choice. It is unconstitutional. This is an economic crime. This is bribery, it is fraudulent, it is discrimination of the worst kind. Some MPs in the last election after 2011 lost their seats for conduct less than what Lungu and Wina have committed this time around.
  3. Mumbi Phiri is alleged to have advised the people of Malawi to come and vote in Zambia, knowing this is treason as inviting foreigners to subvert the constitutional order of another country is properly regarded. This is akin to inviting mercenaries to invade your own country so that you can claim the spoils at the sufferance of your country. If Mumbi Phiri stated what is alleged in the press, this is a serious contravention of the Elections Act. This is rigging. The result of a rigged election merits setting aside. This has to be seriously investigated despite Phiri’s reported denials because it comports with the reports that Malawians have indeed registered to vote in Zambian elections.
  4. There is alleged registration of foreign voters finding their way to subvert our democracy. The ECZ is not investigating this serious allegation. Foreigners are used to rig this election. The result if it favours the ruling party, the only party that controls voter registration, could be set aside as having been rigged by the ruling party.
  5. There are allegations that the Minister of Local a Government and his Permanent Secretary have conspired to rig the election using local councils. If the tape recording of that conspiracy is truthful, then these elections are being prepared for rigging and the result cannot pass constitutional muster.
  6. The President is literally attempting to buy this election, something not seen in contemporary Africa. He is promising to build this and that. Why now? He has named a non-existing stadium in a certain province after a named former president, after not having done so in five years of his party’s rulership. He has bought the Chiefs. He has bought the farmers. Zambians have lost millions of kwacha and employment through loadshedding, here comes Lungu with decreased loadshedding at the last minute and wants to be thanked for it. Bribery, fraud and corruption are openly committed to win an election.
  7. Violence against the opposition, particularly police killings of opposition members are being committed on a large scale. Opposition members’ offices and houses are being raided and evidence planted. This cannot be a free and fair election. The result could be set aside.
  8. The ZAF is being bribed and corrupted in aid of the PF by closing airspace to the opposition and chasing away opposition leaders from provinces in order to advantage the PF. This has never been done anywhere in contemporary Africa. This is unconstitutional. This is violence. No free and fair elections can take place under these circumstances.
  9. The tax-payer funded public media has been compromised, bribed, intimidated etc to spout mainly PF propaganda. This media by name includes, ZNBC, Daily Mail, Times of Zambia. Imagine if this publicly funded media was free and accorded the opposition free and equal reign, how fair this election would be! Look at the headlines in the Daily Mail and Times of Zambia or should be called Times of Lungu! All biased in a massive way towards the ruling party. Other nations like Canada, South Africa, and Britain have public broadcasters that are not biased. So it can be done.
  10. The reader can itemize his or her own list of rigging, fraud, corruption and bribery concerns and there should be plenty there.
  11. Lastly but not the least, “Dr.” Chishimba Kambwili and “Colonel” Panji¬† Kaunda are alleged to have played the unconstitutional and criminally- prohibited and discredited tribal card in the Copperbelt and Eastern Province respectively to advantage the PF. Playing the tribal card in order to divide Zambians for the purposes of winning an election is some sort of rigging, corruption, fraud and bribery. It fosters hatred amongst Zambians unnecessarily in order to benefit a few individuals while the majority suffer. This is not the Zambia we want.

The question is, with this evidence, and more, is our Constitutional Court independent, fair and impartial in order to do justice? This  is what it boils down to because the evidence of rigging, fraud, bribery, violence, etc is there. Zambia Shall Be Free, as President Kaunda once wrote.

Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University School of Law and is the author of Thoughts Are Free, Prison Experience and Reflections on Law and Politics in General, a book found at Planet Books at Arcades in Lusaka. He practised law in Canada for 25 years.