Zambia’s electoral body has confirmed that it will facilitate the enjoyment of the right to vote by Zambian prisoners in the next general elections slated for August 2021. This follows a Constitutional Court judgment which affirmed the right of inmates to participate in elections as voters.
This decision has aroused mixed reactions from civil society and political parties. This is despite the decision only affirming the constitutional rights of citizens and putting Zambia on progressive human rights standing with other countries in Africa and around the world where prisoners enjoy the right to vote.
Electoral Commission of Zambia (ECZ) Chief Electoral Officer Patrick Nshindano said following the case of Godfrey Malembeka of Prison Care and Counseling Association (PRISCA) Vs Attorney General and ECZ in which the court held that prisoners’ rights to vote should be upheld, the commission would allow the inmates to vote in the 2021 general elections.
He said the commission was currently working on modalities to facilitate a benchmarking with other countries that have prisoners voting and engaging various government institutions over the issue. Nshindano said the commission would soon inform the public on the modalities of how the process would be undertaken.
However, Zambian renowned electoral expert and Executive Director of Governance Elections Advocacy Research Services (GEARS) Mcdonald Chipenzi alleged that the decision by the court to allow prisoners to vote would create a constitutional crisis and wondered whether the prisoners would be allowed to vote only for the President or vote for councilors and Members of Parliament as well.
The ruling party Patriotic Front seems to have a soft position on the matter, but the biggest opposition political party UPND was skeptical and wondered why it was not consulted by the ECZ before arriving at the decision.
Chipenzi alleged that rushing the implementation of such an electoral phenomenon, without putting things in place, would be courting a potential electoral conflict and disaster ahead, during and after the 2021 general elections.
“The Electoral Commission of Zambia (ECZ) has taken a position to conduct the prison vote during the 2021 general elections, in line with the Constitutional Court judgment awarded to PRISCA that annulled section 47 and partially section 9 of the electoral process Act No. 35 of 2016,” Chipenzi wrote.
“The ECZ position on the prison vote may only be a reality once there is an amendment to the law, especially the electoral Act No. 35 of 2016 which currently states under section 47 that a person shall not be entitled to vote at an election if, at the date of the election, that person is in lawful custody or the person’s freedom of movement is restricted under any written law,” he said.
“Also section 9 (d); (e) and (f) of the Act which states that the Commission shall not register a person as a voter if that person is detained under the Criminal Procedure Code during the pleasure of the President or disqualified from voting under section 47 or is under a sentence of death imposed by a competent court, or a sentence of imprisonment imposed by a court or substituted by a competent authority for some other sentence imposed by that court.”
Chipenzi indicated that the above provisions needed to be harmonized with Article 46 of the Constitution which awarded the franchise to all citizens who attained the age of 18 years and were entitled to be registered as a voter and vote in an election by secret ballot.
“So, the prison vote will be a complicated vote to implement in Zambia and has great potential to be misunderstood and raise serious suspicions,” Chipenzi cautioned.
“There will be need for the laws governing the prisons and prisoners to be reviewed urgently so as to allow stakeholders campaign and access the prisoner’s vote and also monitor the polling stations to be established in those prisons and detention centers.”
Meanwhile, Chipenzi noted that constitutional amendments ought to made especially on the prerogative of mercy clause that empowers the President to release prisoners at will and at times for political expediency.
He fears that without such a constitutional amendment, the President could use the prerogative of mercy clause as a blackmail tool on prisoners, especially that: “she/he may be the biggest beneficiary of that vote in an election year.”
“Why this zeal from ECZ to implement the prison vote without fail in 2021 general elections?” he asked.
“In this regard, the implementation of the prison and diaspora vote can be deferred to future elections such as by-elections so that enough time is given to the process and mechanisms are put in place from lessons learned in the by-elections.”
Chipenzi pointed out that it was important to look at some examples of countries in the region, like Lesotho and Sudan, where prisoners vote.
In 2017 opposition Forum for Democracy and Development spokesperson Antonio Mwanza who is now a ruling party PF functionary expressed skepticism with the court decision. He alleged that prisoners voting could be used as a platform by the ruling party to rig elections.
“How do we secure the process and ensure that it is not being manipulated or used for rigging purposes? So that is a serious challenge that we are going to face. And if we as political players are also not allowed to go into the prisons to go and campaign then what will be the basis under which these prisoners will be voting? We might have a situation where the vote from the prisons is actually being used for the rigging of the whole elections. So we are very skeptical and we challenge the Constitutional Court to explain to us how they intend to go about this voting to be done and the prisoners to vote in a practical manner,” he said.
Mwanza said the ECZ did not have the capacity to competently and transparently co-opt prisoners into the voting system.
In a country where matters of elections are very polarizing, the eyes of global community are on Zambia to see how this measure will be implemented.
