Nullifications are an assault on democracy

 

Now that a Tribunal to investigate Minister of Justice Wynter Kabimba’s serious indiscretion is being established, we hope both Kabimba and Solicitor General Musa Mwenye can step aside to allow for an independent inquiry to take place.

We know that such things do not happen in Zambia, a country bereft of moral authority,  but this matter is serious enough to deserve them stepping down as no comprehensive investigation can take place while they are in office.

Indeed we can only appeal to Solicitor General Mwenye to exercise his memory and recall his days on the oasis forum, when he challenged many issues including the 3rd forum debate with such vigor and clarity of conscience, and to apply the same standards of morality to this matter.

It is not clear under what circumstances Musa Mwenye rendered the opinion exposed by  the Supreme Court,  he is either expected to be a witness  to testify against Kabimba or may  indeed be separately tried. But whatever the case until this matter is cleared he cannot reasonably be expected to remain in office.

It is gratifying that this tribunal will assist the country get behind the by-election scourge.

We are very concerned by the rate of election nullifications because they are undermining our nascent democracy. Election results express the will of the people at a particular point in time and therefore nothing should be done to change them unless it can be proved that a truly gigantic event occurred which affected the vast majority of the voters.

We are opposed to the current corrupt by elections because they are the result of a political ploy that has been publicly confessed and which the courts are acting upon as if they were not aware of.    

  We do not believe that Courts of law should replicate or second guess the electorate; therefore results should only be nullified where evidence clearly shows malpractices that are so gross and serious that they undermine an entire election. This is what the Supreme Court has said before.

In our view a donation to one church congregation does not amount to such a serious infraction.

In this we are fortified by the finding of the very Supreme Court in the matter where Anderson Mazoka and his colleagues challenged the election of Levy Mwanawasa.

Mazoka was able to prove that the opposition had garnered more votes than Mwanawasa and that there were significant electoral malpractices for the election to be annulled.

While admitting some malpractices the Supreme Court refused to annul the election and explained their decision in the following paraphrased judgment:

“…We should also mention that from the evidence of the Petitioners, they had a number of grievances which largely and clearly established some shortcomings in the management of the elections. There is also no doubt that on some issues, the parties found it appropriate to vent their feelings in Court. Indeed, serious concerns were raised about the ECZ’s capacity to manage the Tripartite Elections, and concerns about the use of the public media and the limited access to it by the opposition. There were also complaints concerning misuse of public or Government facilities and resources.

…In our judgment, we have found that some of the allegations have been partially proved, while some have been found not to have been proved as they were not supported by the evidence on record. In some allegations, no iota of evidence was ever adduced. Thus, out of 36 allegations pleaded, 6 were partly supported by evidence and found partially proved. The remaining 30 were found not proved or not supported by any evidence on record.

…We accept that given the fact that the majority of the voters voted for the opposition as shown by the final result, and also taking into account the shortcomings in the management of the whole election exercise, there was on the whole, reasonable cause for petitioning the election. Some of the allegations and issues were certainly well taken but some could not have been pursued had the Petitioners been possessed of the full facts, while in others had the Petitioners accepted the explanation given by the officials concerned.

…The bottom line, however, was whether, given the national character of the exercise where all the voters in the country formed a single electoral college, it can be said that the proven defects were such that the majority of the voters were prevented from electing the candidate whom they preferred; or that the election was so flawed that the defects seriously affected the result which could no longer reasonably be said to present the true free choice and free will of the majority of the voters.

…We are satisfied, on the evidence before us, that the elections, while not being totally perfect as found and discussed, were substantially in conformity with the law and practice. The few partially proved allegations are not indicative that the majority of the voters were prevented from electing the candidate whom they preferred; or that the election was so flawed that the dereliction of duty seriously affected the result which could no longer reasonably be said to reflect the true free choice and free will of the majority of the voters.”

 

 

 

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