The 2016 Zambia presidential election petition: How not to handle election petitions

rodger_owisoAuthor: Rodger Owiso
LLB – Nairobi, PGD Law – KSL

If the drama that was Hakainde Hichilema v Edgar Chagwa Lungu (2016/CC/0031) has any lessons for the continent, it is how not to adjudicate upon a presidential election petition. Three judges of the court effectively succeeded in making an unfortunate mockery of their bench and risking the otherwise good image Zambia’s electoral process has enjoyed for a few decades now. We should, however, not be too quick to cast aspersions on the court and the learned judges. In order to understand what transpired in the Constitutional Court of Zambia, we have to look at the relevant legal provisions guiding presidential election petitions.

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Stifling democracy – the Museveni way!

Solomon Joojo CobbinahAuthor: Solomon Joojo Cobbinah
Ghanaian Journalist and Human Rights Activist

The Uganda Police Force is perhaps the most proactive in the entire world. They actively swing into action and arrest people they suspect are hatching plans to commit a crime. However, it seems the Police largely targets politicians, who are deemed to be “threats” to President Yoweri Museveni who has been in power for 30 years.

More than a month after Uganda’s February 2016 Presidential and Parliamentary Election, opposition leader Dr Kizza Besigye, flagbearer of the Forum for Democratic Change (FDC) continues to be under what the Police describes as “preventive arrest”. Preventive arrest is meant to stop him from leading protests against a declaration from Uganda’s Electoral Commission that President Museveni won the 2016 Presidential Election. Dr Besigye’s arrest on the Election Day restrained him from legally challenging an election he deemed fraudulent.

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Right to stand for elections as an independent candidate in the African human rights system: The death of the margin of appreciation doctrine?

adem_abebeAuthor: Adem Kassie Abebe
Post-doctoral Fellow, University of Pretoria

Although the right to stand for elections is recognised as an essential aspect of the right to political participation, international human rights law does not specifically address the right of individuals to stand for elections as independent candidates, for example, without being a member of and sponsored by a political party. In fact, the only implied reference to independent candidacy is to be found in General Comment No 25 of the United Nations Human Rights Committee, the organ in charge of monitoring compliance with the International Covenant on Civil and Political Rights, on the right to participation. The Committee observes that “[t]he right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties” (paragraph 21). What constitutes an “unreasonable” limit to the right of persons to stand for election is not apparent. As a result of the lack of a clear rule, the law and practice in relation to independent candidates varies across borders. In some countries, individuals must be members of political parties to be able to stand for election. In others, they may stand for elections as independent candidates. In some others, independent candidates are allowed in relation to local elections but not in relation to parliamentary and presidential elections.

It is within this context of uncertainty that the African Court had to decide whether the ban on independent candidacy in Tanzania was compatible with the right to equality, the right to political participation, and the right to association in the African Charter on Human and Peoples’ Rights (Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila v The United Republic of Tanzania, Applications 009 and 011/2011). This case is interesting in many respects. Firstly, the case presented the African Court the first opportunity to address the margin of appreciation doctrine. Secondly, the application presented a test case to evaluate the trajectory of the African Court towards the jurisprudence of other international and regional human rights organs on similar issues. Thirdly, Tanzania is not the only African country that bans independent candidacy. The decision of the Court therefore has consequences for many other African countries.

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Prisoners too have a right to determine the government of their choice

william_asekaAuthor: William Aseka
Program Assistant (Human Rights Advocacy for Children with Disabilities), Governance Consulting

One of the most critical ways that individuals can influence governmental decision-making is through voting. Voting is a formal expression of preference for a candidate for office or for a proposed resolution of an issue. Voting generally takes place in the context of a large-scale national or regional election, however, local and small-scale community elections can be just as critical to individual participation in government.

The Universal Declaration of Human Rights, adopted unanimously by the United Nations General Assembly in 1948, recognizes the integral role that transparent and open elections play in ensuring the fundamental right to participatory government. The Universal Declaration of Human Rights clearly stipulates under Article 21:

Everyone has the right to take part in the government of his/her country, directly or through freely chosen representatives. Everyone has the right of equal access to public service in his country. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures. (Emphasis mine)

In fact just five years after the end of the reign of the apartheid government of South Africa, the country’s constitutional court addressed one of the most profound issues facing the new democracy. The case involved a challenge to the denial of voting rights for citizens incarcerated in South African prisons and raised the fundamental issue of the meaning of democracy, one that was particularly poignant in a society in which such questions had been restricted from public debate. In his written decision for the Constitutional Court of South Africa, Justice Albie Sachs declared, “Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favor of enfranchisement rather than disenfranchisement.”

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Restrictions on the operation of civil society organizations in Africa violate freedom of association

Esete B FarisAuthor: Esete B Faris
LLM (Human Rights & Democratisation in Africa) student, Centre for Human Rights, University of Pretoria

The role of civil society cannot be underestimated in Africa. Despite the fact that several governments are suppressive, there is widespread circulation of information on human rights abuses and successes. This is attributable to the immense role that civil society plays. Without a civil society in Africa, the world would not hastily recognise the shortcomings of African leaders’ regimes.

It is undeniable that an independent and effective civil society contributes to the protection and promotion of democracy and human rights in a country. The role of Civil Society Organisations (CSOs) is to serve as a watchdog at the domestic level and international level. This implies that the right to freedom of association is essential for CSOs to operate effectively and efficiently.

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