A total of 145 election petitions were filed after the 2016 general elections, divided between local government (58 petitions), parliament (86) and president (1).
Local government: Out of the 58 petitions, 11 were withdrawn or discontinued, while tribunals dismissed 35 and nullified 12. Nine cases are still pending on appeal to the Constitutional Court.
Parliament: Zambia has seen a rapid increase in petitions of parliamentary elections, from 41 seats being petitioned in 2001, to 68 in 2011, to an astounding 86 in 2016. Out of the 86 petitions, 23 were withdrawn or discontinued, 4 were dismissed at a preliminary stage, 53 were heard in court and the elections upheld, while 6 were heard and the elections nullified (affecting 5 constituencies).
Many reasons were used to petition elections, with common ones being intimidation, borehole drilling, vote buying, bribery, corruption and illegal electoral practices, tribal, racist and derogatory remarks, threats, no official GEN 12 Form, wrong results, mis-posting of results, inflating results, wrong assistance of voters, ghost voters, transportation of voters, denying voters entry to polling stations, publishing false statements and use of government resources.
However, many of the petitions were dismissed by the High Court. After the 2011 elections, 10 out of 68 petitioned elections were nullified, while only 5 out of 86 were nullified after the 2016 elections. The reason is the new Electoral Process Act of 2016, which has shifted the burden of proof in petitions. Before, the respondent had to disprove allegations of electoral malpractices. Now, it is the petitioner’s job to prove them, and to show that the majority of voters were prevented from electing a candidate of their choice.
Of the petitions that went to trial (upheld or nullified), 37 notices of appeal were lodged in the Constitutional Court (see table), but only 12 of them had filed a record of appeal as at 13 January 2017. 2 of the appeals have been dismissed, but 35 are still pending.
President: The election of President Lungu was petitioned by the main opposition UPND party, but the petition was dismissed by the Constitutional Court – without trial – on procedural grounds. In a split verdict, it ruled that a hearing could not go beyond the 14 days stipulated in the Constitution, after changing its mind several times on the same, and blamed the UPND for wasting time on preliminary issues, even suggesting that “equity does not assist the indolent”. The UPND refused to accept the ruling. It challenged the dismissal in the High Court, arguing that it was deprived of its fundamental right to “be given a fair hearing within a reasonable time”, as stipulated in the Bill of Rights. However, the case has ground to a halt, as the High Court has refused to rule in the matter until the UPND can control its cadres.
More information from the Electoral Institute of Sustainable Democracy in Africa.