Electoral Act, 1991
This section says the Act may be cited as the Electoral Act, 1991.
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This section says the Act may be cited as the Electoral Act, 1991. This section defines key words used in the Act, including election terms, offices, voter status, political party, and election expenses. A person is qualified to register as a voter in direct elections if the person is a citizen of Zambia and is at least 18 years old, subject to section four. Some people cannot be registered as voters in direct elections if they fall into listed disqualifying categories. A qualified voter must be registered on application, if the application follows Commission regulations and the person is ordinarily resident in the constituency.
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Provisions of Electoral Act, 1991
Showing 36 of 36
Part
PART I
- 1 Verify source ↗
Short title and application
This section says the Act may be cited as the Electoral Act, 1991.
1. This Act may be cited as the Electoral Act, 1991. - 2 Verify source ↗
Interpretation
This section defines key words used in the Act, including election terms, offices, voter status, political party, and election expenses.
2. ( 1) In this Act, unless the context otherwise requires- Short title Interpret.a. tion "( candidate" means any person nominated as a candidate for election ; "Commission" means an Electoral Commission established under article seventy-six of the Constitution; "constituency" means any of the constituencies into which Zambia. is divided under article seventy-seven of the Constitution; "the Constitution" means the Constitution set out in the Schedule to the Constitution of Zambia Act, 1991. • 92 No. 2 of 1991] Electoral "corrupt practice" means any offence against this Act which is declared under this Act to be a corrupt practice; "costs" includes charges and expenses; "direct election" means an election to the office of Pre· sident, or a.n election for a member of the National Assembly; "Director of Elections" means the person for the time being holding or acting in the public office of Director of Elertions; "elect.ion" means, a direct election and cognate expressions shall be construed accordingly; "election officer" has the meaning assigned thereto in subsection (6) of section.fi.�een; "election petition" means an election petition referred to in section eighteen; "high judicial office" has the meaning assigned to it in the Constitution; "illegal practice" means any offence against this Act which is declared under this Act to be a.n illegal practice; "member" means &n elected member of the National Assembly; "petitioner" means, in relation to an election petition, any person referred to in section nineteen who signs and presents such election petition under section twenty, a.nd includes any person substituted for a pe titioner under section twenty-five or section twenty-six. "political party" means a.n organisation registered under the Societies Act the objects of which include any politica.l activity or the sponsoring of ca.ndida.tes for election to the office of President or as a member of the Nationa.l Assembly; "register of voters" mea.ns a register of voters for any constituency, or pa.rt of a constituency, prepared and maintained, or deemed to be prepared and maintained under this Act; "registered" means registered in a regi'iter of voters under this Act, and "registration" shall be construed acco• rdingly; "Registrar" means the Registrar of the High Court; "responclent" has the meaning assigned thereto in subsec tion ( 4) of section twe:nty-fJfll!; "returning officer" in relation to the election of a Pre sident, means the returning officer specified in article forty-one of the Constitution; C-p, 101 Electoral fNo. 2 of 1991 93 ·, , · "vo�r" mea.n.s a. person who is entitled to vote at the rele v,.a.nt election . . . · (2) For the purposes of this Act, the e:\."J)ression "election �enses" means expenses incm·red, whether before, during or niter au election. on account of or in respect of the conduct or management of such election by or on behalf of a candidate: Provided that the following expenses shall not be deemed : to be election expenses: . (a,) any moneys expended or expenses incurred by any association or group of persons or by any person in the general interests of a political party or ol'ganisa tion or its candidates generally. not being moneys expended or expenses incurred directly in the parti cular interests of any particnlar candidate ot· expe ndituro incuned by a politicul pa,rty with the consent of a candidate and apportioned to such candidate under this Act; or (b) any moneys expended or expenses incurred by any political party or organisation in the printing, pub lication or distribution of the offitial organ of that po Utica] party or organisation; or (c) any election fee. PART II REGISTRATION .AND VOTING IN DmECT ELECTIONS
Part
PART II
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Qualifications for registration of voters
A person is qualified to register as a voter in direct elections if the person is a citizen of Zambia and is at least 18 years old, subject to section four.
3. Subject to the provision of section four, every person · shall be qualified for registration as a voter in direct elections who- Qualifica tion for registration of voters (a) is a citizen of Zambia; and (b) has attained the age of eighteen years. - 4 Verify source ↗
Disqualification from registration of voters
Some people cannot be registered as voters in direct elections if they fall into listed disqualifying categories.
4. (1) No person shall be qualified for registration as a voter in direct elections, and no person shall be registered as such a voter, who- Disqualifica tions from registration of voters (a) is under a declaration of allegiance to some country pther than Zambia; (b) under any law in force in Zambia. is adjudged or other wise declared to be of unsound mind, or is detained under the Criminal Procedure Code during the Cap.160 pleasure of the President; 94 No. 2 of 1991] Electoral Cap. 484 (c) is under sentence of death imposed on him by any court in Zambia, or a sentence of imprisonment (by whatever name called) imposed on him by such a. court or substituted by competent authority for some other sentence imposed on him by such a court; or (d) is not in possession of a national registration card issued to him under the National Registration Act. (2) In this section, the reference to a sentence of imprison ment shall be construed as not including a sentence of imprison ment the execution of which is suspended or a sentence of imprisonment imposed in defa.ult of payment of a fine. Registration in e. Constituency - 5 Verify source ↗
Registration in a constituency
A qualified voter must be registered on application, if the application follows Commission regulations and the person is ordinarily resident in the constituency.
5. A person qualified for registration as a voter shall, on application in accordance with regulations made by the Commission, be registered as a voter in the register of voters for a constituency in which he is ordinarily resident. Qualifica tions for voting - 6 Verify source ↗
Qualification for voting
Registered voters in a constituency may vote there in a direct election, but they must identify themselves to an election officer and cannot vote more than once; section 7 also disqualifies some people from voting.
6. (I) Subject to the provisions of this section and of section seven, every person who is registered in a register of voters for a constituency shall be entitled to vote at a direct election held in that constituency. (2) Every person shall, whenever he wishes to vote at a. direct election, identify himself to an election officer in such manner as may be prescribed, and no person shall be entitled to vote more than once in the same such election. • (3) For the avoidance of doubt it is hereby declared that where an election to which this Act applies is held at the same time and place as any other such election, and whether or not the same ballot paper is authorised by the Commission for use in more than one such election, each such election remains a separate election. disque.Jifice. tions from voting 7. No person shall be entitled to vote at a direct election who- (a) has been convicted of any corrupt practice or illegal practice within a period of five years preceding that election; (b) has been reported guilty of any corrupt practice or illegal practice by the High Court upon the tria.1 of an election petition under this Act within a period of five years preceding that election; or (c) at the date of the election is in lawful custody or if his freedom of movement is restricted under any law in force in Zambia. Electoral [No. 2 of 1991 95 PAR1' III PRESIDENTIAL ELECTIONS - 8 Verify source ↗
The election to the office of President sha.11 be held in
The election to the office of President must be held in every constituency in Zambia.
8. The election to the office of President sha.11 be held in every constituency in Zambia. - 9 Verify source ↗
Nomination of Presidential candidate
A presidential candidate must file a nomination paper with the prescribed fee and statutory declaration, and the paper must be signed by at least 200 registered voters.
9. ( I ) A candidate for election as President shall deliver his nomination paper together with the prescribed election fee and the statutory declaration referred to in article thirty two of the Constitution to the returning officer for such election on such day, at snch time and at such place ns may be deter mined by the Commission. (2) The nomination paper shall be signed by not lesR than two hundred registered voters. Elootion to office of President Nomioo. tion of PreAido ntial can dido.tea PART TV , NATIONAL AsSEMBLY ELEO'fIONS
Part
PART TV
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Additional disqualifications for election to National
Some people are disqualified from election to the National Assembly, including election officers and persons convicted or found guilty of corrupt or illegal practices.
10. In addition to the persons disqualified by article sixty three of the Constitution- (a) an election officer sba 11 not be qualified for election us a. member of the National Assembly; {b) any person who is convicted of any corrupt practice or illegal practice or who is reported guilty of any corrupt practice or illegal practice by the Higll Court upon the trial of an election petition under t.J1is Art shall not be qualified for eleetion as a member of the National Assembly for a. period of five yea.rs from the date of such conviction or of such report, as the case may be. Adtlitiono.l cmqualifica tiooa for election to No.tional Assembly - 11 Verify source ↗
Election fee
This section sets the election fee for National Assembly candidates by reference to a fee prescribed under the Act, sets rules for Electoral Commission membership and appointment, and gives the President powers to fill vacancies and determine when a Commission dissolves.
11. The election fee for eandidate!l for election to the Nationa.l Assembly shall be such foo as may be prescribed under this Act. Elootion fee PART V El.EOTORAL COM?tfTSSION AND REGULATION OF ELECTIONS ll. { l ) An Elector�) Commission established under article eight of the Constitution shall consist of a Chairman and two other members, who shall bA a ppointed by the President. Electoral Commission Provided that, where an Electoral Commission is established solely for the purpose of a. by-eloction for a member of the National AsRembly, the Electorl\.l Commission may consist of u. single Commissioner who may exercise a.II tho pnwors of the Electoral Commission relating to the direction sind supervision of that election other than the power to make or alter regulations. .. 96 No. 2 of 1991] Eleclc;ral (2) A person shall not be qualified for appointment as Chairman of a. Commission or as a Commissioner- (a) unless he holds or has held high judicial office ; (b J if he is a member of, or nom ina.ted as a candidate for J election to, either House of Parliament. (3) If, after the appointment of a Commission and before · the Commission stands dissolved, the office of Chairman or a.ny . member of the Commission faJls vacant or the holder of the, . office becomes unable for any reason to discharge his function.a. as a member of the Commission, the President may appoint another person qualified for appointment to be the Chairma,n or a member of the Commission, as the ra.so may bo. (4) A Commission established for the purposes of article eighty-one of the Constitutfon 8haJI stand dissolved upon such date as the President may determ ine, and a Ccmmission established for any other purpose shall stand dissolved on such date (not being earlier, in the case of a Commission established upon a dissolution of Parliament, then the date upon which Parliament first sits after that dis8olution) as the President may determine.
Part
PART V
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Independence of electoral commission
When exercising its constitutional functions, a Commission is not subject to the direction or control of any other person or authority.
13. In the exercise of its functions under the Constitution, a Com.mission shall not be subjP-ct to the direction or control of any other person or authority. - 14 Verify source ↗
Supervision by commission
The Commission directs and supervises voter registration and the conduct of every election.
14. The registration of voters and tho condnct of every election shall be subject to tho direction and 1mpervision of the Commission. - 15 Verify source ↗
Appointment, renumeration and functions c,f election
The Commission may appoint and remove election officers, and election officers must take the required oath or affirmation before acting.
15. (I) In respect of any election, the Commission shall have power to appoint far any constituency or province such election officers as it may deem necrsi:;ary for tho purposes of such election, and any election offirer may exncise his functions· in respect of the whole or pa.rt of a constituency or province or in reHpect of more than one constit11euoy as prescriber! by the Commissiua. (2) In re�pect of any election, an election officer may, subject to the general or special directions of the Commission, appoint any fit person to assil:'t him in the exercise of his functions undor this Act, a.n<l may, u.t any Lime, l'evoke such appointment. (3) Every election office!' shall, before exercising any of the functions of his office, take and subscribe such oath, or make · such affirmation in l ieu thereof, a.a the Commission may prescribe. (4) The Commission may, a.t any time, revoke the appoint ment of an election officer. Independe nce of Electoro.l Commission Supervision by Commission Appoint ment, renumera tion and functions of election officera Electo-ral [No. 2 of 1991 97 ( 5) Every election officer shall be paid such remuneration and allowances in respect of his duties as the Commission may determine. (6) In this section " election officer " means a. perso:a appointed by the Commission to be- (a) a registration officer; (b) an assistant registration officer; (c) an electoral officer ; (cl) a. returning officer ; ( e) a presiding officer ; (/) a polling assistant ; {g) a counting assista.nt ; Power of Commission io require information and issue in.struotiom Regulat.o:ry poweft! O� Comrn,won and includes any person appointed to assist an election officer under subsection (2); and, where functions a.re conferred on the Director of Elections under this Act in respect of any election, includes the Director of Elections. - 16 Verify source ↗
Power of commission to require information and issue
The Commission may require information and returns from election officers and may issue instructions to election officers and candidates about election-related matters.
16. The Commission may- {a) require from any election officer such information and returns as it may consider necessary; (b) subject to the provisions of this Act, issue instructions to any election officer in connection with his functions under this Act; (c) issue instructions to any candidate in an election in respect of the use of motor vehicles by or on behalf of such candidate during the day on which such election is to be held. - 17 Verify source ↗
Regulatory power of commission
The Electoral Commission may make regulations about voter registration and how elections are run, and must consult the returning officer before making certain presidential-election-related regulations.
17. (1) Subject to the provisions of the Constitution a.nd of this Act, the Commission m?,y, by sta.tutory instrument, mU,ke regula.tions providing for the registration of voters for the purposes of elections and for the procedure and manner of conducting elections ; separate regulations may be made in respect of each category or elections. (2) Without prejudice to the generality of subsection (1 ), the Commission ma,y, by statutory instrument, ma.ke regulaitions providing for all or any of the following matters- (a) the division of constituencies into polling districts; (b) the establishment of polling stations in polling districts; ( c) the registration of voters; (d) the preparation of, a.nd the form of, registers to be used in the registration of voters; {e) the manner of ascertaining whether persons applying for registration as voters a.re qualified for registration or for their inclusion in a register for a particule.r constituency; 98 No. 2 of 1991] (f) the making and determination of appeals, claims and objections with respect to the registration of voters ; (g) the correction, amendment and certification ofregisters of voters; (h) the circumstances in which the name of any person may be deleted from a register of voters, the transfer of the names of persons from the register of voters or one polling district to that of another polling district and the restoration of names of registers of voters; (i) the nomination of candidates for any election and the manner of establishing and recording that a candidate at a direct election for the National Assembly is the authorised candidate of a political party; (j) the making and determination of appeals against th°"e rejection of nominations by a returning officer; (k) the publication of the names of candidates whose nominations are accepted; (l) the payment of election fees by candidates, and the circumstances in which such fees are to be returned; (m) the use of symbols at an election ; (n) the appointment of, and the duties of, election agents and polling agents; (o) the equipment and facilities to be provided at polling stations; (p) the persons who may be admitted to polling stations; (q) the manner and procedure of voting at an election; (r) the manner of a,acertaining the identity of persons wishing to vote at elections and whether such persons are qualified to vote ; (s) the manner in which persons who are blind, or other wise incapacitated, may vote; (t) voting by persons employed on election duties on the day of an election; (u) the maintenance of secrecy at elections; (v) the postponement of, and the adjournment and extension of, time for a poll in case of riot or open violence at an election; (w) the admmistering of oaths or affirmations by election officers in respect of such matters as may be prescribed ; (x) the procedure to be followed at the conclusion of a poll in an election ; (y) the procedure for counting votes in an election, and the circumstances in which votes in an election may be rejected by a returning officer as invalid; (z) for the purpose of declaring any candidate duly elected, the procedure to be followed where there is an Ele.ctoral [No. 2 of 1991 99 equality of votes between candidates in an election for members of the National Assembly. (aa) the procedure to be followed where only one person is duly nominated for election to the office of President, or in a. constituency for election to the National Assembly; (bb) the declaration, notifioa.tion and publication of the results of an election ; (cc) the custody and disposal of nomination pa.pars, ba.llot papers, records, documents or other things relating to the registration of voters and the conduct of elections ; (dd) election expenses and the return of election expenses; (ee) the notification a.nd publication of any causal vacancy in the elected membership of the National Assembly and the fixing of a. da.te for an election to fill such vacancy; (ff) the fixing of a date for an election of a President or an election following a. dissolution of the National Assembly; (gg) the forms and records to be used for any of the purposes of this Act ; (hli) any matter to be prescdbed by or under this Act. (3) Before making any regulations which make any separate or distinct provision in respect of the functions of the returning officer for the election of a. President, the Electora.l Commission shall consult the returning officer. ( 4) Regulations under this section sha.11 not be affected by the dissolution of the Commission by which they a.re ma.de but sha.11 remain valid and in force, subject to any amendment or revocation by a subsequent Commission. (5) Regulations under this section may provide in respect of any contravention thereof that the offender shall be liable to a fine not exceeding twenty thousand kwacha. or to a term of imp1isonment not exceeding two yea.rs or to both. (6) No prosecution for an offence aga.inst this Act sha.11 be commenced after the lapse of one year from the date on which the offence is alleged to ha.ve been committed. PART VI ELECTION PETITIONS IN RESPECT OF PARLIAMENTARY ELECTIONS
Part
PART VI
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Avoiding of elections
The High Court may only void a National Assembly election on the grounds stated in this section, and it must not void an election just because of an agent’s corrupt or illegal practice or an election officer’s breach of duty if the stated conditions are met.
18. (I) No election of a. candidate as a member of the National Assembly shall be questioned except by an election petition presented under this Part. Avoidanoo of eleotiona 100 No. 2 of 1991] Electoral (2) The election of a. candidate a.s a. member of the National Assembly shall be void on any of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election petition, tha.t is to say- (a) that by reason of any corrupt practice or illegal practice committed in connection with the election or by reason of other misconduct, the majority of voters in a. constituency were or may have been prevented from electing the candidate in that constituency whom they preferred ; or (b) subject to the provisions of subsection (4), that there has been a non-compliance with the provisions of this Act relating to the conduct of elections, and it appears to the High Court that the election was not conducted in accordance with the principles la.id down in such provisions and that such non-compliance affected the result of the election ; (c) that any corrupt practice or illegal practice was committed in connection with the election by or with the knowledge and consent or approval of the candidate or of his election a.gent or of his polling agents; (a) that the candidate was at the time of his election a person not qualified or a person disqualified for election. (3) Notwithstanding the provisions of subsection (2), where, upon the trial of an election petition, the High Court finds that any corrupt practice or illegal practice has been committed by or with the knowledge and consent or approval of any agent of the candidate whose election is the subject of such election petition, and the High Court further finds that such candidate has proved that- (a) no corrupt practice or illegal practice was committed by the candidate himself or by his election agent, or with the knowledge and consent or approval of such candidate or his election agent; and (b) such candidate and bis election agent took all reason· able means to prevent the commission of corrupt practice or illegal practice at such election ; and (c) in all other respects the election was free from any corn1pt practice or illegal practice on the part of such candidate or his election agent; then the High Court shall not, by reason only of such corrupt pra.otioe or illegal practice, declare that election of such candi date wae void. (4) No election shall be declared void by reason of any act or omission by an election officer in breach of his official duty in connection with an eleotion if it appears to the High Court that the· election wse so ooI?,duoted s� to bQ aub�tsntially � Electoral [No. 2 of 1991 101 accordance with the provisions of this Act, and that such a.ct or omission did not e.ffect the result of the.t election. - 19 Verify source ↗
Who may present election Petitions
Certain people may present an election petition to the High Court.
19. An election petition ma.y be presented to the High Court by one or more of the following persons- (a) a. person who lawfully voted or had a right to vote at the election to which the election petition relates ; (b) a person claiming t o have had a right t o be nominated as a candidate or elected at the election to which the election petition relates; (c) a, person claiming to have been a. candidate a.t the election t-0 which the election petition relates; (d) the Attorney-Genera.I. Who .may present election petitions - 20 Verify source ↗
Relief which may be claime<J-in election petition
A petitioner in an election petition may ask the High Court for scrutiny of the votes, and the section lists the reliefs that may be claimed.
20. (1) Any of the following reliefs may be claimed in an election petition- (a) a declaration that the election was void ; (b) a declaration that a.ny candidate was duly elected. Relief whioh ma-, be olauned in election petition (2) In addition to the foregoing reliefs, a. petitioner may apply to the High Court upon the trial of an election petition for a. scrutiny to be carried out by the High Court in such manner as the Court may determine. (3) On a. scrutiny at the trial of an election petition, the following votes only shall be held invalid- (a) the vote of any person whose name was not on the register of voters assigned to the polling station a.t which the vote was cast or who was not e.uthorised to vote a.t such polling station under this Act; (b) the vote of a.ny person whose vote was procured by any corrupt practice or illega.1 practice ; (c) the vote of any person who committed or procured the commission of persona.tion a.t the election to which the election petition relates, contrary to the provisions of this Act; (d) the vote of any person proved to have voted more than once at the election to which the election petition relates; (e) the vote of any person who was disqualified from voting at the election to which the election petition relates. ( 4) In this section " scrutiny " means an enquiry as to the va.liclity of the votes ca.st, and includes the determination of the number of valid votes cast for each candidate in the election i n rMpect of which the application for a. scrutiny is made. 102 No. 2 of 1 991] Electoral Form and procedure for prese ntation of election potitiona - 21 Verify source ↗
Form and procedure for presentation of election peti
Election petitions must follow the Chief Justice’s rules, be lodged with the Registrar, be signed, and be filed within the stated time limits.
21. (1) Every election petition shall bo in such form and shall contain such matters as may be prescribed by rules ma.de by the Chief Justice. (2) Presentation of a.n election petition to the High Court shall be made by lodging it with the Registrar in accordance with the provisions of this Act. (3) Every election petition shall be signed by the petitioner or by a.ll the petitioners if more than one, and shall be presented not later than thirty days after the date on which the result of the election to which it relates is duly declared. (4) Notwithstanding the provisions of subsection (3), when the election of any person (hereinafter referred to as " the respondent ") is questioned upon a.n allegation of a corrupt practice or a.n illegal practice, the election petition ma.y be presented- (a) at any time before the expiry of twenty-one days after the day on which the returning officer receives the return of the election expenses of the respondent ; or (b) if the election petition specifically alleges a payment of money or some other a.ct to have been made or done since the day referred to in paragraph (a) by the respondent or his election agent, or with the privity of the respondent or of his election agent in pursuance or in furtherance of the corrupt practice or illegal practice a.llegcd in the election, a.t a.ny time within thirty days after the date of pa.ymont or other a.ct. (5) Where a.n election petition is presented under this section, the Registrar shall in writing inform the Speaker of the N a.tional Assembly and the Commission of such presenta.t.ion. Duty of Registrar to make out list of election potitiona - 22 Verify source ↗
Duty of registrar to make out list of election petitions
The Registrar must list election petitions in the order received, keep a copy at the office, and make it available for inspection; petitions are normally tried in that order unless the High Court orders otherwise.
22. (I) Subject to the provisions of subsection (2), the Registrar, shall make out a list of a.11 election petitions presented under this Act, placing them on such list in the order in which they are presented, and he shall keep at his office a copy of such list which shall be open for inspection by any person ma.king application for inspection thereof. (2) Every election petition shall, unless the High Court orders otherwise, be tried in the order in which it stands on the list made out by the Registrar under subsection (1), but where more election petitions than one are presented in respect of the same election, such election petitions shall be bracketed together and shall be dealt with as one petition, standing, unl868 the High Court orders otherwise, in such list in t},l.e place where the last of such election petitions would ha.ve stood if it had been the only election petition presented in respect of that election. Electoral [No. 2 of 1991 103 Rules of practice ond procedure 800llrity for costs Withdrawal of elootion petitions Substitution of now petitionora - 23 Verify source ↗
Rules of practice and procedure, security for costs
The Chief Justice may make procedural rules for election petitions, and each petitioner must give security for costs, up to K10,000, after the petition is presented.
23. (1) Subject to the provisions of this Act the Chief Justice may make rules regulating generally tho practice and procedure of the High Court with respect to the presentation and trial of election petitions, including rules as to the fine within which any requii:ement of such rules is to bo complied with and as to the costs of and incidental to the presentation and trial of election petitions and as to tho foes to be charged in respect of proceedings therein, a.nd generally in regard to any other matter relating thereto as the Chief Justice may deem necessary or desirable. (2) Mtor the presentation of an election petition, every petitioner thereto shall give such security for costs, not exceeding in amount the sum of ten thousand kwacha, as the High Court may order, and such security shall be given ,vithin such time and in such manner and form as the Chief Justice may prescribe by rules under this section or, in the absence of such rules, as tho High Court may order. (3) Where, after the presentation of an election petition, no security for costs is given as required by or under this section, no further proceedings shall be had on that election petition. - 24 Verify source ↗
Withdrawal of election petitions
A petitioner cannot withdraw an election petition without leave of the High Court.
24. (1) A petitioner shall not withdraw an election petition without the leave of the High Court. (2) No application for lea.ve to withdraw an election petition shall be made until notice of intention to withdraw such election petition has been given in such manner as the Chief Justice may prescribed. (3) Where an election petition is presented by two or more petitioners, an application to withdraw such election petition shall not be made except with the consent of all tho petitioners thereto. (4.) The High Court may, upon an application for leave to withdraw an election petition, make such order as to costs as it may think just. - 25 Verify source ↗
Substitution of new petitioners
A person who could have been a petitioner may apply to replace a withdrawing petitioner, and the High Court may order substitution.
25. (1) Upon tho hearing of an application under section twenty-four for leave to withdraw an election petition, any person who might have been a petitioner in respect of tho election to which that election petition relates may, not with standing the provisions of 8(,Ction twenty apply to the Iligh Court to be substituted for the petitioner so applying to withdraw, and tho High Court may, if it grants loave to such petitioner to withdraw, order that such person (hereinafter referred to as " the substituted petitioner ") be substitt1ted for such petitioner. (2) Subject to the provisions of this section, the substituted petitioner shall, as nearly as may be, stand in the same position, and be subject to the sa.me liabilities, under this Act as the petitioner for whom he is substituted (hereinafter referred to as " the originaJ petitioner "). 104 No. 2 of 1991] Elatoral (3) Whore tho High Court makes an ordor under subsection it may direct that the security for costs given by the original potitioner shall romain as security for any costs (I), ca.used thoreafter by tho substituted potitioner upon the trial of the election potition, and may direct that, to the extent of the a.mount of such security, the original petitioner shall be liable to pay tho costs of tho substitutod potitioner. (4) Unless tho High Court gives directions as in subsection (3), subsections (1) and (2) of section twenly-three shall apply to tho substituted petitioner as they apply in relation to a petitioner presonting an election petition. Abatement of election potitions - 26 Verify source ↗
Abatement of election petitions
If a sole petitioner or surviving petitioner dies, the election petition normally stops, but a substitute petitioner may apply to the High Court and the court may allow substitution.
26. (1) If a sole petitioner or tho survivor of several petitioners dies, then subject to the provisions of this section, no further proceedings shall be had upon the election petition. .. (2) The death of a. petitioner shall not affect his liability for the payment of costs previously incurred. (3) On the abatement of an election petition under sub section (1), any person who might have been a. petitioner in respect of the election to which that election petition relates may, notwithstanding section twenty-one, apply to the High Court to be substituted as a petitioner in place of the deceased petitioner and the High Court may, if it thinks fit, order that such person be substituted accordingly. (4) Where the High Court makes an ordor under this section for the substitution of a person in place of a deceased petitioner such person shall, as nearly as may be, stand in the same position, and be subject to the same liabilities, under this Act as the deceased petitioner would have boon but for this death, and subsections (1) and (2) of section twenty-three shall apply to such porson as they apply in relation to a petitioner presenting an election petition. Trial of elootion potitiom - 27 Verify source ↗
Trial of election petitions
Election petitions must be tried by the High Court in open court, and the court must keep a verbatim record of oral evidence.
27. ( 1 ) An election petition shall be Court in open court. tried by the High (2) The lligh Court may adjourn tho trio.I of an election. petition from timo to time and from place to place. (3) Subject to the provisions of this Act, the High Court may, in respect of the trial of an election petition exorcise such powers within its civil jurisdiction os it may doom a.ppro� priate. (4) On the trial of o.n election potition, a. verbatim record of all evidenco given orally in such trial shall be taken, and transcript of such record shall, at the conclusion of tho proceedings, be delivered to tho Commission by the Regi.atra.r. 1991 105 Provisious e.e to witneaae• Elutoml fNo. 2 of - 28 Verify source ↗
Provisions a.s to witnesses
In an election petition trial, the High Court may call and question witnesses, and witnesses must answer questions about election-related offences; qualifying witnesses can receive indemnity protection, and reasonable witness expenses must be allowed.
28. (1) On the trial of an election petiLion, the High Court may- (a) order any pori,;on who appears to the High Court have been concerned in the election to attend as a witness at such trial ; to (b) examine any witness or any person who is present at such trial although such witness or person is not c,dled i;.s .. � witness by any party to the proceedings : Provided that after such examination by the High Court of such witness or person, such witness or person may be croi-is-oxa.mined by or on bclrnlf of the petitioner or the respondent. .,. (2) A person who is called as a witnes8 :.1,t, the trial of an ele ction petition shall not be excused from answering anv question rolat,in� to any offence connoctecl with an elo<'tion on the ground that the am1wer thereto may tend to crim.i.nate him, or on tho ground of privilege: Provided that- (a) a witness who arunvers to the satisfa ction of the High Court ev-ery qucst,ivn which he is required to answer unrler this section, and the answers to which mav t,cnd to incriminate him, shall nnt be liable t<J prose:Cution for any ofTence <'ommitted by him in connection wi1,h that Hle<'tion a.nil in rospect or which he is so exa mined and 8ucb " itnrss shall be ontitlf•d tu receive a cel'tifi<'at.e of indemnity under tho ba.·1d of the Regis trar 8tating that he i;; freed and d i <C'luuged from prosecution for that offence ; lia.l,ility to (b) an answer by a witness to a question before the lligh Court nnder thi-, section slrn.11 not, cxropt in tho NI. 10 of any cr i ninal procN•di 1gs for L<iving fal-,e e, id mce it resµect of such cvid,.mcc, be n,d ni stsahle in iiny proceedings, civil or crimii1a.l. in evidellce against him . (3) Where a person has received a certifica.te of indemnity under subsection (2). a•1d any legal proceedings a re at anv time brought &'!ain"t him for a11y offo11co to which such certificate relates, the court having cogni;,a.nce of the case shall, 011 pro•>f of the certi,ita.te of i,Ld,:mlllity, stay ::;uch proceedings and mav a.warn to that person such costs as he may have been put to i.1 such prvceedi.>.gs. (4) All rea'lonahle expeni:1ei:1 incurred hy a.n.v per'lon in atte nding at or appea1 ing before the H igh Court to give evidence a.-1 witne::1s at the trhl of an election petition shall he allowed tit> such pcrso·1 a.crorcli 1g to the scale of allowances and expe nses appropri:i.te ir1 civil proceedings beforn the High Court. a 106 No. 2 of 1991] Electoral Conclusion of trial' election petition - 29 Verify source ↗
Conclusion of trial election petition
After an election petition trial, the High Court must decide who was duly elected or whether the election was void, and related officials must act on that determination.
29. (I) At the conclusion of the trial of an election petition, the High Court shall determine whether the respondent, or any other and which person, was duly elected, or whether the election to which.the election petition relates was void, and the Registrar shall as soon as may be, submit a copy of such determination to the Speaker of the National Assembly and to the Co=ission. (2) Where the High Court determines under subsection (I) that the respondent was duly elected, such election shall be and rem0,i.t1 valid. (3) Where the High Court determi.ties under subsection (1) th0,t the respondent was not duly elected but that some other person was duly elected,· such other person shall be deemed to have been elected accordingly. (4) Where the High Court determines under subsection (1) that the respondent was not duly elected, and that no other person was duly elected, at the election concerned, the vacancy in the membership of the National Assembly ill respect of which that election was held shall bo deemed to continue until duly filled. (5) Where a determination under subsection (I) alters the results of an election as previously declared, it shall be tho duty of the Commission to publish the results as so altered in the Gazette. (6) Wliere it appears to the High Court upon the trial of an election petition that any couupt pmctice or illegal practice has been committed by any person in com1ection with the election to which such election petition relates, the High Court shall, at the conclusion of the proceedings, prepare a report stating- (a) the evidence given in the proceedings in respect of such corrupt prn.ctice or iUegn.l practice ; (b) the names and particulars of any person by whom such couupt practice or illegal practice was, in the opinion of the Court, committed : Provided the Court shall not state the name of any person under this paragraph unless such person has been given an opportunity of appearing before the 'Court and of showing cause why his name should not he so stated. (7) The Regfatrar shall deliver a copy' of every report 'prepared by the Constitutional Court under subsection (6) to- (a} the Commission; and · (b) the,Director of Public Prosecutions. r Provisions as to costs - 30 Verify source ↗
Provisions as to costs
The High Court can decide who pays the costs of an election petition and can shift costs to the State, an election officer, or a person found guilty of corrupt or illegal practice in appropriate cases.
30. (1). Subject to the provisions of'this section, all costs, cha�ges an\! expenses of and incidential to the pr.esentation and .,. .. rNo. 2 of 1991 107 trial of an ck•!'t ion petition shall be bomc in su<'l1 mannor n11<l iu sttl·h proportion" ns the High C-0urt ma.'· order ancl in particular, any c•o,its which in tho opinion of tho High Uo1trt, havo been caused by any Yexntiou:i conduct or b.v nny fri\•o'ous or vexatious allegations or objeC'tions on the pat·t of ihc pct itionor or of the respondent, may be ordered to b<· paid by the p,uty by whom su<'h <'Oib1 htwo lren en.used. (2) \Yhmc, on tho trial of an clcctiun 1mti t iun, l,hc H igh Court clcfor111 inc ·1 tl111.t tltc n•spondent wa,; 1101 clul) l'lePtt-,1 awl is of tho opiait,,1, l11wing n•gurcl to tll<' circun1'll1111,·o-1, tluL it ,wuld be ju:it and n•a4011nblc to rt>li1•y1• nn.' party t u tht• oloction petition fru,11 nli or a purtwn of t Jw c·o its t.h1•r,.of, thC'n (a) if thr C,mrt find" that the elc tion of the n•�pc111d ·nt wa� due to n rn istnke or improper Jw:·formnnl'" or fo.il11n• of pcrfor,nnnce or a 1 function {/'/11<t Jirfr 111udc 1,\' any election ofTh-cr ; it mn,·. nftl'I' sufli<-ient. ll'>tin: t l tho .\tiorncy-(i(,nernl to Rh')\\' ca11-. • to tho C'Olltrnry, mnk" ,mch orclor n • to the pa,rnwnt by tho State or thn ('(I ,ts of the pr l •nedill!,!,4 or :l pun ion 1 lll'rcor, n1<1 it rnuy cle<•111 proper ; (b) if the Court firnh thnt tho ell•l'tion ol the n.'sponclnnt, was clue to n mistake or ir pro1wr 1wrfon inn ·P or fail me· of porformaneo of nny fmtd ion 1110!11 .fide made In· a11y eleetion ofliC'er. it mav. after sullic i••nt notic•· t'o 1<1u;,Jt ollicer to sho,. t·a11s1; b tho r•ont.rary, make sul'h order as to the p:t_\'llle11t b.,· ,rn c-h Pll'ct ion offh:er of tho costs of tho pm ·eodin!!s 01· a nortion therc<,f ns it mny deem propC'r. - (3) The lliglt Court may. on nppli<''ltion madl' L:,- any person to whom any CO'lts, chnrgo:i or CXJWll'l", arn pnyablo under this Act, order tho 11amo to bo pnid ou I of a:iy d<'pu iit made to sccme the snrne, or by any �.urety who gaye a rccng niznncc t J , ·,·u re l he ._ lllll' : Providt·d that n•,tir•p of suc-h applil•ntion :.lrnll 1.,c given, in suc·h m·1111t"I' us m: � !w 1m�,crib1•d by nrlp,; of c·ourt lo tlrn party by or o•t wl1'J-ll' O<'hnlf s1l!'h dPpo-iit wns mnclo or for whom Slll'h s1m•ty f!O ,·c n rc•<·<>gnizanc.-P, requiring such party, or �nd1 Ht1rPt.\' nnd :rn d1 pnrly, a� tlll' c·nsn may be, to �t:tto, within snc·h time nnd in suc·h 11um11cr as may bo ,10 preti<'ribocl, wlwlhcr lw rP-;i,h th•· nppli ·ntion. (4) " hc•r1• 0·1 th< trial of nn C1l<wtion potilion. any porson appenN tu fllf H igh (',mrt to hw11 bP-rn g11ilty of nny <·orrupt pral·tfr<' or illc>�n l pr 1l'li1•11 relating t,, tho clodion whiC'h i tho tiubjcl't of s11<'h c1<> l i,m p<'lition, the-Court ma,v. nfter givinl>' that person an opportunity of makin!! a :.latoment. t{> · sho,� <'a11so ,, h., th<' order sho11ld not brl mnd<i, orclor the who I<' r,r a portion of the ro,ts of or in<'iclontnl to tho trial of i:iuC'h election p<'lition to he paid h,\ thr siicl pcrscm to suC'h person or persons as the C'ou rt may determine. JCS No. 2 of 1991) Electoral (5) Execution may be lcviecl tmdo1· :my or<ler for pa.yn t<•nt mo.de b) tho H igh Court under this !-l''d ion in tltt> �1unc manner and to tho 1:111,mc o.,tont ll'I execution may bo loviod uml-w a. juc •e,,i10nt of the High Court for lho p.•yuicnt of money. (G) Money deposited us security shall, whon no longer neu< NI a<; �l·curity for eo:,t:-1, be roturncd to tho pcr:mn in who,io name it is deposited or t-0 any per,;,n entitled t.o receive the J1t same by order of tl10 H igh Court, " h.ii-h may bo_upu 1 1,1Uti after notic<' nncl proof that nil j u:-1t clnim:-1 have boon sath1fiod or ic·icntly proYicled for U!-1 tho High Courl muy othcrn i-io 'lUf 1·eq11i r1'. i PART vn V1'11l>lt tJl l·:STlONS l{ELATJXO TO PAIU,lAllrnNT (1) 10 :H . Any question ·which muy uri aci to whether- (a) .Any person hu:-1 boon Yaliclly npp.Jintc 1 u, n n ,mino.ted membn of the National A:isembly ; tho seat of an elected memb�r or of a nominated membc•r oi tho }rnbonal AssrmGl nl'U 1� other than a question ari-<i..ng from tho election of ,\ candidate a::i n mrmber of the National Assembly; or (c) any purnon has been validly electc.l as Sponkor or Deputy Speaker of tho Nnli:mal A"iqu nbly or, having been s'> elected, ha$ vacated the office of Speakel' or Deputy Speaker; , h,,s b •co n i , _v ma.) be heard and determined by tho High Court upon appli cation mado by- (1) u.uy J>eN<>n to whom the gu&tion rel.iv. , ; or (UJ m tho t·uscs roforrocl to in pur.1�1-.ip 1 (a) (I ) oe (c}, any member of the National As,10111bly ; vt· (iii) the Atbrney General. (2) Any person who r.iakec: an apphc·ahon t-0 th<' H igh Court appear and be under su blle('tii>n ( I ) shall have tho right repre.-.onted before the High Court. to I (:J) Subject to any rule!! of courts, the powers. practice and roredure of th<' High �rt in l'O"ipec·t vnnotriah,-f-"Mc\C'OOn' f pet ili-ons uncler Pa.rt V JQ,J;h,-.,11 apply mutatis niutandis to tho hearing and determination of such applic·a.t ions.
Part
PART vn
- 32 Verify source ↗
Effect of determination
A High Court determination under this Part takes effect according to its own terms, subject to the Constitution.
32. Everv cl<'terminntion of the High C"ourt nnclor thi"i Pa.1·t ,�ty-one shnll han:i effe,·t, subjoC't to the provi<iion"i of A: tiPle of tho (.'011111itutio11, in accordanl'e with the terms thereor• ,'fe111 Applion tions ro mf'mb,,rs and o01cora of Parliamont Effect of duwrmtn&• t1on .. • Electoral 109 [No. l of 1991 Exemption from stamp duty When incapaoity may be removod No porson required to state how ho voted Evidence as to holding of eloction V o.lidation of oel'to.in dooumonts Repi-; .. Js and saving PART VIII MlsCELLANEOUS AND REPEALS AND TRANSITIONAL
Part
PART VIII
- 33 Verify source ↗
Exemption from stamp duty
No stamp duty is charged on any affidavit, declaration, or oath made for this Act.
33. Notwithstanding anything to the contrary contained in any law relating to stamp duty, no stamp duty shall be charged upon any affidavit, declaration or oath made for the purposes of this Act. a - 34 Verify source ↗
When incapacity may be removed
A person whose incapacity arose from a conviction, court declaration, or report may apply to the High Court to have it end if the supporting evidence was perjured.
34. Whenever a person has become subject to any in capacity under thi" Act by res.son of conviction or by reason of any declaration or report of any court, and any witness who gave evidence against such person upon the proceed1-ig for such conviction, declaration or report is convicted of perjury in r·cspect of that evidence, suC'h person may apply to the High Court which, if satisfied that the conviction, declara tion or report, so far a'l it concerns t,ha.t person, was based upon perjured evidence, may order that his incapacity shall om that time coa.'le, and lihe same shall cease accordingly. f - 35 Verify source ↗
No person required to state how he voted
A voter cannot be required to say how they voted.
35. r Al No person who has voted at an election shall in any procoeding8, whether brought under this Act or otherwise, be required, to state for whom he has voted. • - 36 Verify source ↗
Evidence as to holding of election
A returning officer’s certificate can be enough evidence that the election was held, and small naming or description mistakes in related documents do not invalidate them if the person or place is commonly understood.
36. Upon any charge of a corrupt prn.ctice or an illegal pra.C'tice, or· any other offence against this Act, alleged to have been committed at 01· in connection with an election, the certificate of returning officer that the election mentioned therein wa<i hcing or had been hold i-;ht'-11 he sufficient evidence of the fact that such eloction wM being or hl\d been held . a 37. No misnomor or any inaccnrate clcscri1)tion of any person 01· plu.r,o in any register, list, nomination pa.per, notice or other documont required for the purposes of this Act shall affect the full operation of the document with respect to that person or place in any rase where the description of tbe person or place is such as to lw commonly understood. - 38 Verify source ↗
Repeals and saving
This section repeals the Electoral Act, 1973, but keeps certain existing statutory instruments in force if they are not inconsistent with the Constitution and this Act.
38. The Electoi-al Act, 1973, is hereby repealed : an Provided that, notwithstanding the repeal of the Elect oral Art, 1 973, a. statutory instrnment ma.do thereunder· Blectora.l C"-0mmissio11 establi'lhcd under the Con l>y stitution of Zambia 1973. which ii:; in force immediately before tho cornmencemenL of this Act Bhall. so for 11.s it is not inconsisteat w1th th<• Constitutio11 and thi-i Art, shall c,oati.nue in force after the commencement of this Act a� if it had be•n mad<> hy o ('ommis8ion under this Act; 1 and any :mch statutory i11·,tm nent shall ho eon �trued with such modifi.c:\ti.ons, adaptationc;. qualification'! ::md e.,::ceptions a-i may be necessary to bting them into conformit�, with th� Co,l',t,itution aTHl this \rt. an<l such statutory in--1trurnent or 1 - rnlcs of practire may he amondP-d or revoked by t,ho ( 'ou mi�sion in cxerci'lc of powf'r� eo1UPl'l'<'d nnd')r thi.-: Aet No. 2 of Electoral 1 10 Transitio nal Elootornl Commission Transitio nal regiators of voters 1991] - 39 Verify source ↗
Transitional Electoral commission
Seventy-three Electoral Commission members in office immediately before commencement continue in office under the new Constitution-based commission.
39. 1973, Notwithstanding the repeal of the Constitution set out the in the Schedule to the Constitution of Zambia Act, seventy-three members of an Electoral Commisf'lion established under Article of tho,t Constitution who hold office immediately before the coming into operation of this Act shall continue to hold office as members of a.n Electoral Commission hereby deemed to have been ei;tablished under Article of the Constitution set out in the Sched11 le to the Constitution of Zambia Act, and they !i'hall hold such office on the same terms and conditions as apply to the holders of offices referred to in section of the Comiti tution of Zr.m bia Act, Seventy-six 199 1 . nine 1 991. - 40 Verify source ↗
Transitional registers of voters
When this Act starts, the Commission must arrange voter-registration districts and treat existing certified voter registers as if they were prepared under the Act for the first post-commencement elections.
40. co On the coming into operation of this Act, the Com misi;ion shall ma.ko such arrangemenb; as are noces1--9ry and appropriate for allocating among tho constituencies into which 8evenl!J·SPven Zambia is divided for the purposes of elections to the National Assembly under ,\rticle of the Com,titution the polling districts declared under regulation 3 of the Electoral (Registration of Voters) Regulations and in force immediately min� into operation of this Act; and the registers before the of voters certified for Ruch polling districts which o.re in force as aforesaid 1.mder tho 'O Regulations bhall be deemed to have been prepared and maintained under this Act for the consti tueacies to which t,hose pc fling dist1ict.s are allocated. and shal1 be used as the register:s of voters for the purposes of the first elections to be held a fter the coming into opero.tion vf this Act fo1 an elect.ion to the offictl uf President i\nd of members of the National Assembly. •
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Electoral Act, 1991
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