LAW FOR PRISONERS TO VOTE COMPLETED AND HANDED OVER

 

Today Tuesday 23^rd February, 2021 the Zambia Law Development (ZLDC) handed over its final project report and the proposed bills, for enactment into law, to facilitate voting by persons in lawful custody to the Electoral Commission of Zambia in a handover ceremony at the ECZ offices and followed virtually by stakeholders on the zoom meeting platform.

The report and proposed draft bills were handed over to the Electoral Commission of Zambia Vice Chairperson Dr. Emily Sikazwe by the ZLDC Chairperson Madam Justice Roydah Kaoma. The UN Resident Coordinator Coumba Mar Gardio also delivered remarks on behalf of the United Nations at the ceremony.

Click this link to access the remarks of Electoral Commission of Zambia Vice Chairperson Dr. Emily Sikazwe, the ZLDC Chairperson Madam Justice Roydah Kaoma and the UN Resident Coordinator Coumba Mar Gardio.

1. BACKGROUND

In 2016 Godfrey Malembeka (suing as Executive Director of the Prisons Care and Counselling Association -(PRISCA) challenged the status quo in relation to voting by persons in incarceration in the case of Godfrey Malembeka (suing as Executive Director of the Prisons Care and Counselling Association V. the Attorney General and the Electoral Commission of Zambia. The Constitutional Court in Selected Judgment No. 34 of 2017 held that “persons in lawful custody and those whose freedom of movement is restricted under a written law are entitled to vote in future elections.”

Following this decision, the Minister of Home Affairs requested the Zambia Law Development Commission (ZLDC) whose primary mandate is to conduct law reforms and the Zambia Correctional Service (ZCS) and other institutions to facilitate the operationalisation of the prisoners’ right to vote.

2. About the ZLDC
   • The Zambia Law Development Commission conducts research and make recommendations on, among others.
     • The socio-political values of the Zambian people that should be incorporated into legislation.

3. The anomalies and archaic provisions that should be eliminated from Zambia’s legislation;
   • New and more effective methods of administration of the law, the dispensation of justice and new areas of the law that should be developed which are responsive to the changing needs of the Zambian society.

 

4. The Process – Operationalising the Right to Vote for Persons in Lawful Custody

It is a responsibility of a citizen to endeavour to register and vote, if eligible, in national and local government elections and referenda. (The Constitution of Zambia, 1991 as amended in 2016)

• Position Paper:

In 2019 the ZLDC undertook a desk study and compiled a position paper on the operationalisation of the right to vote for persons in lawful custody.

In April 2020 the paper was shared with the Minister of Home Affairs, the ECZ and the ZCS and with stakeholders and the general public in a virtual dissemination meeting which was held on 22nd July, 2020.

• In January, 2020 the Electoral Commission of Zambia appointed to a Technical Committee to lead operationalisation of the right to vote by persons in lawful custody. The ZLDC was appointed to this Committee and to lead the development of appropriate legislation to facilitate voting by persons in lawful custody.

As part of the process of reviewing the existing legal framework and developing appropriate legislation the technical committee led by the Zambia Law Development Commission undertook:

• Mapping of prisons and correctional centre

In order ascertain modalities that need to be put in place to facilitate registration and voting by persons in incarceration,

29 correctional centres, 18 correctional farms, the reformatory school in Livingstone and the approved school in Mazabuka were visited during the mapping exercise.

During the exercise the teams conducted key informant interviews with officers in charge of the prisons and correctional centres and focus group discussions with small groups of randomly selected inmates in each facility using questionnaires and interview guides developed for the process.

 

• Virtual comparative studies with Lesotho, South Africa, Namibia and Kenya to review the legal and administrative frameworks in these countries, in order to learn best practice relating to voting by incarcerated persons were also undertaken; and

 

• Stakeholder consultations were undertaken to gather views from stakeholders on the proposed legislation and to share the findings from the mapping exercise and the comparative study. The stakeholders consulted included, political parties, church mother bodies, academic institutions, the media, defence and security wings, the Judiciary, and the Law Association of Zambia. This was followed by

 

• Stakeholder validation meetings in February, 2021.

The findings and submissions from the mapping exercise, the comparative studies and the stakeholder consultations were compiled into a report which together with the findings of the ZLDC position paper guided the drafting of proposed amendment bills.

5. The Proposed Draft Bills

The proposed draft bills developed following this process are:

The proposed draft Electoral Process (Amendment) Bill, 2021;

AND

The proposed Electoral Process (Campaign in Prisons and Correctional Centres) Regulations, 2021.

This proposed draft bill and proposed regulations provide for:

1. Repeal of Section 47 of the Electoral Process Act which was declared null and void by the Constitutional Court in the Godfrey Malembeka case;
2. Registration and voting by persons in lawful custodye. prisons or correctional centres;
3. The prohibition of physical campaigns in prisons or correctional centres by candidates or political parties;
4. Permitting or allowing candidates or political parties to distribute paper-based campaign materials and electronically recorded messages as platforms for information dissemination to enable persons in lawful custody to vote from an informed position;
5. Access to prisons or correctional centres by monitors, observers, polling agents and the media;
6. Access to the surrounding community to vote in polling stations established in prisons and correctional centres; and
7. Allowing the intermixing of ballots to prevent the possible victimization that inmates and Zambia Correctional Service officers may face in certain instance.

 

(iii) The proposed draft Electoral Commission of Zambia (Amendment) Bill, 2021

This bill provides for access to prisons and correctional centres by the ECZ for purposes of establishing registration centres, polling stations and undertaking electoral processes.

 

(iv) The proposed draft Prisons (Amendment) Bill, 2021

This bill provides for prohibiting political campaigns and the establishment of political party branches.