ECZ defence of illegal regalia ban hollow – Sensio
By Tony Nkhoma
MISCOMMUNICATION is undermining both public confidence and the credibility of the Electoral Commission of Zambia (ECZ), former Kasenengwa Patriotic Front (PF) member of Parliament Sensio Banda has said.
Banda said ECZ was issuing selective readings of the law regarding the pronouncement banning allied party regalia in by-elections.
He maintained that because the commission was not addressing the relevant legal concerns presented, chairperson Mwangala Zaloumis should resign on the grounds of moral imperatives.
“While I welcome clarification and institutional engagement, the commission’s statement reflects a selective reading of the law and falls short of justifying its actions within the framework of Zambia’s constitutional democracy,” Banda said.
Banda said in a statement seen by The Mast the commission’s reference to a potential prison sentence of up to two years for wearing a banned allied party regalia lacked a clear legal basis.
“More seriously, the commission’s reference to a potential prison sentence of up to two years lacks a clear legal basis, apart from Regulation 10(3) of the Electoral Code of Conduct, which limits penalties to a maximum of one year for violations of its provisions,” Banda said.
He said misstating the legal penalty in this manner amounted to a clear misrepresentation of the law and undermineed both public confidence and the credibility of the ECZ’s communications with the public.
Banda said ECZ had failed to address the legal and constitutional concerns being raised by stakeholders regarding the pronouncement banning allied party regalia in by-elections.
“The recent response from the Electoral Commission of Zambia to my earlier critique regrettably fails to address the legal and constitutional concerns I raised regarding the pronouncement banning allied party regalia in by-elections,” Banda said.
He said the commission had hinged its justification on Sections 2, 29 (3)–(4), and 89 (1) (n) of the Electoral Process Act No. 35 of 2016.
Banda, however, said none of these provisions substantively supported the ban on wearing regalia by allied but non-participating political parties.
“Section 2 merely defines ‘campaign material’ including T-shirts and cloth and political party symbols among others. Section 29(3) permits the publication and distribution of such material as ‘may be prescribed’ but does not in itself prescribe any prohibition,” he said.
Banda said critically, no corresponding statutory instrument or regulation had been issued to formalise the ban, making ECZ’s directive legally unenforceable.
“Furthermore, Section 89(1) (n) prohibits the use or association with symbols of a candidate other than their registered symbol during the course of an election, and it specifically applies to candidates and their symbols. It does not extend to the general public or to allied parties that are not contesting the election,” Banda said.
He said Section 89 (1) (n) did not prohibit items such as T-shirts and cloth, which, according to the definition of campaign materials in Section 2 of the Act, were distinct forms of expression.
Banda said ECZ’s conflation of party symbols with all forms of campaign materials such as regalia like T-shirts and cloth constituted a misinterpretation and ultimately a misapplication of the law.
“On constitutional grounds, the ECZ’s attempt to justify the directive by citing limitations under public order or safety cannot override Article 21 of the Constitution, which guarantees freedom of association and political expression,” Banda said.
“These rights cannot be curtailed by subsidiary legislation or administrative directives, certainly not without compelling justification and due legislative process. To suggest otherwise is to subordinate the Constitution to an inferior law, which defies both logic and legal hierarchy.”
Banda said Zaloumis did not have the authority to interpret constitutional provisions in a manner that justified circumventing fundamental rights saying the role is reserved for the Judiciary.
