The Legality of the Electoral Reforms Technical Committee

THE LEGALITY OF THE ELECTORAL REFORMS TECHNICAL COMMITTEE

By: Jonas Zimba

Introduction

Zambian being a Constitutional democracy has a system that speaks to election of leaders through the ballot. This is termed the electoral system.

On Friday the 13th of September, 2024 the President of the Republic of Zambia made a
presentation and gave a speech in Parliament and one of the things he talked about was that there were lacunas in the Constitution and the elections would be delayed.

The Electoral Commission issued a notice and called for submissions on proposed electoral
reforms. This does not come by surprise, especially given what the President said in Parliament.

The electoral system of Zambia is governed by an array of pieces of legislation starting with a provision in the Constitution under Article 229.

Article 229 of the Constitution provides for the establishment of the Electoral Commission of Zambia and sets out its functions.

This paper intends to interrogate the legality of the establishment now known as the Electoral Reforms Technical Committee and comment on whether this establishment is one that is envisaged by the law and was had in contemplation by the drafters of the law at the time.

Simply put is the Electoral Reforms Technical committee legal?

The Electoral Commission of Zambia

This entity is a Commission provided for under Commission in the Constitution. It will be noted that this commission has its functions set out in the Constitution,Article 229 of the Constitution provides as follows:

“(1) There is established the Electoral Commission of Zambia which shall have offices in Provinces and progressively in districts. Constitution of Zambia (Amendment) [No. 2 of 2016 93
(2) The Electoral Commission shall—
(a) implement the electoral process;
(b) conduct elections and referenda;
(c) register voters;
(d) settle minor electoral disputes, as prescribed;
(e) regulate the conduct of voters and candidates;
(f) accredit observers and election agents,
as prescribed;
(g) delimit electoral boundaries; and
(h) perform such other functions as
prescribed.”

The last part of the provision speaks to a prescription as to the work the Commission can do.

This prescription is now set out under the Electoral Commission Act No. 25 of 2016. In
particular section 4 of the Act speaks to the functions of the commission,
It provides:
“(1) Subject to the Constitution, the Commission shall direct, supervise and control elections in a fair and impartial manner.
(2) Without prejudice to the generality of subsection (1), the functions of the Commission are to—
(a) ensure that elections are free and fair;
(b) promote conditions conducive to free and fair elections;
(c) promote democratic electoral processes;
(d) supervise and control the registration of voters for the purposes of an election;
(e) supervise the preparation, publication and maintenance of a national voters’register and local authority voters’ register;
(f) adjudicate disputes that may arise from the organisation, administration or conducting of elections, which are of an administrative nature;
(g) conduct education and information programmes to promote public awareness of electoral and parliamentary matters;
(h) provide information and advice on electoral matters to State organs;
(i) conduct and promote research into electoral matters and other matters that relate to its functions;
(j) establish and maintain liaison and cooperation with political parties; and
(k) do all such other things as are necessary or incidental to the performance of its functions under this Act.

(3) The Commission may, in furtherance of its functions—
(a) collect any information that it considers necessary for the performance of its functions under the Constitution and this Act; (b) undertake consultations, public hearings and inquiries for purposes of performing its functions under the Constitution and this Act; and
(c) receive written or oral statements from any person or organisation for purposes of its functions under this Act.”

It will be noted from the above provision in the Constitution and the Act that the Act provides a wider scope as regards the functions of the Commission.

As to whether this is in line with what the Constitution permits is not the basis of this paper but simply put, this paper is meant
to investigate the legality of an establishment called “THE ELECTORAL REFORMS
TECHNICAL COMMITTEE”.

The Electoral Reforms Technical Committee

The Electoral Commission of Zambia issued a notice on or about the 6th September, 2024
indicating that they had established the Electoral Reforms Technical Committee whose main task was to underrate a review of Zambia’s Electoral laws and processes and the aim was to enhance the electoral process.

The question that begs an answer here is whether the function set out in the notice issued by the Commission is in line with what the law permits them to undertake?

A careful look at the provision in the Constitution and under the Electoral Commission Act will reveal that the commission can sensitise, educate and collect information necessary for the
performance of its functions.

The commission can also consult and conduct public hearings and inquiries for purposes of performing its functions. It can also receive submissions for purposes of its functions under the Act.

Can the commission undertake law reforms?

This question may find its answer in the
provisions of the Constitution, the electoral Commission Act and the Zambia Law
Development Commission chapter 32 of the laws of Zambia.

Firstly, from the wording of the law and provisions relating to the Electoral Commission, the words used relate to the carrying out of a statutory function which has to do with voting, voter education and related matters.

Review of the law does not fall within this category of words.

Francis Bennion (1997) opines that under the ejus dem generis rule, the principle is that words of the same nature must be given the same contextual meaning

The words used in the law do not speak to review of the law or the function that the Electoral Commission wants to undertake.

Now the Commission being a creature of statute performs statutory functions and is thus subject to the statutory functions Act.4
It is worth noting that the long title of the Statutory Functions Act provides as follows:
“An Act to make provision for the allocation of statutory functions and for the transfer and
delegation thereof; and to provide for matters incidental to or connected with the foregoing”.

The spirit of the law is that statutory functions must be conferred by statute and there are restrictions to delegation of such functions.

In our present case, the function given to the Electoral Commission is given by the Constitution and the statutory function is equally set out in the Electoral Commission Act.

There is no provision for the Commission to set up a body such as this. The body established is illegal.

On the other hand, we have the Zambia Law Development Commission.

The main function of the Zambia Law Development Commission is to undertake an
examination of existing laws and recommend or facilitate changes in the legal system.

Page 954, Chapter 4 of the laws of Zambia

Undertaking a review of existing laws amounts to conducting an examination of the law, proposing amendments to the law and this function cannot be duplicated at any point by the framers of the law.

The view taken here is that it is not the mandate of the Electoral Commission to undertake a review of the law and proceed to desire to make changes through the establishment of the body now called the Electoral Reforms Technical Committee.

There is need to interrogate the law and establish that the function is legally being undertaken otherwise this body may be performing an illegal function and its existence questionable.

Conclusion and recommendations

Having looked at the law the body established is illegal and has no blessing of the law. It
appears there is a motive behind this creation.

As shown, there is no provision for such a body and the law does not support such a function.

It is recommended that the Law Development Commission be given the role proposed to be undertaken by the illegal body so that the review and proposed amendments can be done within the confines of the law.