EU EEM Final Report - 2008-10-30

8/6/2019 EU EEM Final Report - 2008-10-30

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EU Election Expert Mission to Zambia

Framework Contract no.2008/165534 Lot 7

Final Report

December 2008

The project is funded by

the European Union

The project is implemented by

European Consultants Organisation


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The content of this publication is the sole responsibility of ECO and can in no way be taken to reflect the views of

the European Union


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Final ReportEU EEM ZAMBIA

Presidential By-election

30 October 2008

Lusaka, 15 November 2008


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EU Election Expert Mission

Republic of Zambia Presidential By-election, 30 October 2008

Final Report Page 1

Contents

EXECUTIVE SUMMARY ........................................................................................................................ 3

I. INTRODUCTION & ACTIVITIES OF THE EU ELECTION EXPERT MISSION................ 5

II. LEGAL FRAMEWORK.................................................................................................................. 6

Legal set-up.........................................................................................................................................6

Election disputes ................................................................................................................................. 7

Electoral Offences...............................................................................................................................8

III. ELECTORAL ADMINISTRATION............................................................................................ 10

Structure and Composition of the Election Administration..............................................................10

Administration of the Election..........................................................................................................11

Voter Registration.............................................................................................................................13

Registration of Candidates................................................................................................................14

Election Day......................................................................................................................................14

IV. CAMPAIGN.................................................................................................................................... 18

Violence/ Harassment ....................................................................................................................... 18

Vote buying.......................................................................................................................................19

V. MEDIA............................................................................................................................................. 19

Media landscape................................................................................................................................19

Legal framework...............................................................................................................................20

Performance of the Media.................................................................................................................21

Complaints and Conflict Resolution.................................................................................................24

Pressure against journalists ............................................................................................................... 25

VI. COMPLAINTS AND APPEALS................................................................................................... 26

VII. SUPPORT TO DIPLOMATIC WATCHERS.............................................................................. 27

Deployment.......................................................................................................................................27


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Final Report Page 2

Training.............................................................................................................................................28

Observation strategy ......................................................................................................................... 28

Reporting system .............................................................................................................................. 29

Election Day and Election Night ...................................................................................................... 30

Debriefing ......................................................................................................................................... 30

Evaluation ......................................................................................................................................... 31

VIII.SUPPORT TO DOMESTIC MONITORS ................................................................................... 31

Pre Election support..........................................................................................................................31

Post Election Support........................................................................................................................32

Mapping of domestic monitors organization .................................................................................... 33

The Parallel Vote Tabulation (PVT) project.....................................................................................34

IX. RECOMMENDATIONS................................................................................................................ 35

Legal framework...............................................................................................................................35

Election Administration.................................................................................................................... 36

Media ................................................................................................................................................ 38

ANNEXES ................................................................................................................................................. 40

Priority, timing and degree of difficulty in implementing proposed actions .................................... 41

Domestic Monitoring Groups ........................................................................................................... 44

Capacity building training modules .................................................................................................. 50

International and regional agreements signed by Zambia.................................................................58


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Final Report Page 3

EXECUTIVE SUMMARY

The European Union Election Expert Mission (EU EEM) was established in Zambia on 8October and finished its tasks on 15 November 2008. The missions mandate was threefold:(1) to assess the electoral process, (2) to support diplomatic watchers and (3) to supportdomestic monitoring organisations. The EU EEM met with local (electoral authorities,government, political parties, civil society organizations and media) and internationalstakeholders to assess the Presidential by-election.The main difference to an EuropeanUnion Election Observation Mission (EU EOM) is that the EU EEM is much smaller in sizeand duration and assesses the electoral process without releasing a public statement.

This Presidential by-election did not meet a number of international standards, specially theright to vote, and can therefore hardly be assessed as representing the will of the people.The disenfranchisement of citizens who reached the age of 18 after the last voter registrationexercise in 2005/06, together with the lack of professional and ethical behavior from the partof the media (state and private), represent the main issues leading to this conclusion. Some positive aspects were the increased transparency of the process and the better logisticalimplementation.

The majority of the reports received from the Electoral Commission of Zambia (ECZ) andother local stakeholders concerning complaints prior to Election Day, related to (1) the useof state resources by the governing party (MMD), (2) vote buying, (3) defamation and (4)intimidation. According to the information gathered by the EU EEM, most of the cases weredealt with to the satisfaction of the involved parties in the Conflict Management Committees

(CMC). The CMC are composed of representatives of the ECZ, political parties, civilsociety and governmental institutions. While not mandatory for the complainant, being dealtwith at the CMC meant that the cases did not reach the courts and the Electoral Code ofConduct was not applied for these offences.

While Election Day took place in a peaceful atmosphere, and no major challenges were presented with regard to polling, the opposition challenged the process of counting andtabulation of results. The MMD candidate, Rupiah Banda, won the election with 40.09% ofvotes, against 38.13% by PF candidate, Michael Sata. Voter participation decreased by 25 percentage points, compared to the 2006 tripartite elections. Rupiah Banda was sworn-inimmediately after the declaration of the results by the Chief Justice (2 hours later), on 2

November.

Despite the requests from the ECZ, the Zambian government had not provided sufficientfinancial resources for continuous voter registration, as prescribed by the Electoral Act. Thisdecision, together with the difficulties to have any type of voter registration implemented inthe mandatory 90 days between the passing away of the President and the new election, ledto the disenfrachisement of some 500.000 young people who had reached the age ofmajority, and could therefore not register as voters. In addition, a significant number ofvoters who had changed their place of residence since the 2006 elections could not re-


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Final Report Page 4

register. Being the difference between the elected President and the next candidate some35.000 votes, the outcome of the by-election might have been different if these potentialvoters would have been registered.

The ECZ demonstrated its ability to find compromises over contentious issues, afterconsultation with political parties. However, the Commission did not develop a sound policyto inform election stakeholders and the general public on time, and provided only limitedinformation regarding its minutes and decisions through its Public Relations department,falling therefore short on various issues with regard to the transparency of the elections (i.e.number of ballots to be printed).

In spite of the problems which occurred during the tabulation and transmission of resultsduring the 2006 elections, the ECZ was not able to significantly improve procedures in thisrespect. The decisions to post the protocol of the results at the polling stations, and to enablepolling agents to follow the delivery and transmission of results from polling stations to the

tabulation centres, had a positive impact on the transparency of the results. However, theECZ did not release the presidential election results with a breakdown of each pollingstation, which would reduce doubts regarding the correctness of the tabulation of electionresults.

The main opposition candidate, Michael Sata (PF), appealed the results to the SupremeCourt on 14 November 2008, and asked for a recount in some constituencies. However,neither he nor other opposition political parties and domestic observer groups believe thathis appeal will be fruitful, due to the alleged lack of independence of the judiciary from theExecutive, as well as the time needed to resolve appeals.

During the electoral campaign and after the election, the situation in the country wasgenerally calm, apart from a few reports of isolated incidents in Copperbelt Province andLusaka. Also, no incidents involving physical violence caused by an intentional policy bythe state or stakeholders, with the purpose of hindering the citizens freedom to assemble,speak, movement or other fundamental Human Rights, were reported.

Coverage of the elections by the media was perceived as showing a deterioration of journalists skills and ethics, compared to the pre-campaign period and the previouselections. During the deployment of the EU EEM, freedom of expression and the right topublish were generally respected across the country, although serious violations of MediaFreedom (i.e. attacks against reporters) had to be noted.

The Electoral Code of Conduct, which provides for fair and balanced coverage andmaximum allowed airtime, was largely ignored by state-owned broadcaster, as well asprivate radios, apart from a minority of community radios. The reform of the Media Law, toprovide a more liberal legal framework for media workers, is still not implemented, thoughencouraged by the recommendations of the EU EOM 2006 and recently by the UNHRC(May 2008). The private media provided live-programmes and listener call-ins, a platformfor concerned citizens and critical voters. These programmes were banned twice by theMinistry of Information, and led to the arrest of a community radio manager, during thepost-election period.


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Final Report Page 5

Zambias fairly vibrant media landscape became polarized between the two majorcandidates, acting president Rupiah Banda (MMD) and Michael Sata (PF), with state media backing the acting president and private media favoring his major opponent. The privatemedia was highly criticized for its unethical behavior.

189 diplomatic watchers from the EU Member States, Norway, Japan, Canada and the USA,were trained during 4 different sessions, which also involved the ECZ Training Unit. 89diplomatic watcher teams were deployed during Election Day, to 753 Polling Stations forpolling, 69 Polling Stations for counting, 35 constituency Collation Centres for tabulation ofresults, and 19 District Electoral Offices to observe the transmission of results.

Domestic monitoring groups were supported by the EU EEM, with regard to theirobservation methodology, including editing of forms, participation in training sessions and,after Election Day, with training modules on various topics, in order to increase theircapacity for the next elections.

An assessment of the main four domestic election monitoring organisations, proved their preparedness and institutional capacity, including a reasonable regional presence tocoordinate and utilize considerable donor funds to deploy large numbers of monitors, toachieve almost full coverage. On the other hand, it was noted that apart from FODEP, whichprofited from NDI guidance, the three remaining NGOs experienced difficulties applying amore standardized and reliable observation methodology.

I. INTRODUCTION & ACTIVITIES OF THE EU ELECTION EXPERT MISSION

The Zambian authorities approached the European Union (EU) to request that a European UnionElection Observation Mission (EU EOM) be sent to Zambia to observe the Presidential by-election. The elections were announced to take place on 30 October 2008. The EU decided thatthe time-frame was too short to implement an EU EOM for this election. Due to the interest byMember States and the EC Delegation in Zambia to observe the elections, as well as theEuropean Unions keen interest in the democratic development of Zambia, the decision wastaken to send a European Union Election Expert Mission (EU EEM) instead. The tasks of the EUEEM were threefold: (1) assess the electoral process and report about it to the EU institutions,(2) support the diplomatic watching exercise undertaken by EU Member States, the ECDelegation and some development partners, such as Canada, Japan, Norway and the USA and

(3) support domestic monitoring organisations. The basic EU EEM is very limited in number ofexperts, observers and duration to properly assess the electoral process as compared to an EUEOM. It also does not make any public statements. In the case of Zambia, the EEM wascomposed of the Team leader/Legal expert, Electoral expert, Training expert and DeputyTraining expert.It benefited from the contribution of seconded experts from Member States andNorway (Human Rights, Media, local observer coordinator and an observation roving team) anddiplomatic observers for Election Day. The mission arrived in Zambia on 8 October 2008 andleft on 15 November 2008.


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Final Report Page 6

During its stay, the mission met with governmental officials, the Electoral Commission ofZambia, political parties, civil society organizations and other local stakeholders, as well as withthe EC Delegation, EU Member States, international partners and international observerdelegations.

A considerable amount of time was spent in setting-up the mission and on administrativematters.

II. LEGAL FRAMEWORK

Legal set-up

A large number of laws, regulations and instructions, composed the framework for the 2008 presidential byelection. These were: the Constitution of Zambia (1996), the ElectoralCommission Act (1996), the Electoral Act (2006), the Electoral Code of Conduct Regulations(2006); the amendment to the Electoral Regulations (27/10/2008)

1, as well as administrative

instructions and election manuals issued by the Electoral Commission of Zambia (ECZ).Generally, it can be stated that the legal framework for the 2008 presidential by-election waslargely similar to the one applied during the 2006 tripartite elections.

Zambia is party to the following international instruments (which include special provisions on political participation and the conduct of genuine democratic elections): the InternationalCovenant on Civil and Political Rights (ICCPR), the International Convention on the Eliminationof Racial Discrimination (ICERD), the Convention on the Elimination of all Forms ofDiscrimination Against Women (CEDAW), and the Convention on the Political Rights of

Women (CPRW). Zambia is also a member of the African Union (AU) and the Southern AfricanDevelopment Community (SADC) and is committed to AU and SADC principles for conductingdemocratic elections. It must however be stated that none of the above instruments have beentranslated into national laws and can therefore not be invoked to appeal governmental andinstitutional decisions at the local court level. Regarding the adherence to international standards,the situation of detainees is clearly in breach with international conventions that Zambia is a party to. On this issue, the Supreme Court ruled (SCZ No. 11 of 2008) that detainees are notentitled to vote. In a similar case when one detainee was denied to stand for Parliament, the casewas brought to the International Court for Human Rights where the plaintiff won the case andwas elected.

After the 2001 elections, President Mwanawasa appointed an Electoral Reform TechnicalCommittee (ERTC) in 2003, to review the legal and electoral framework and propose electoralreforms. A Constitutional Review Commission (CRC) was also established to address possibleimprovements to the political system. The ERTC presented its report in July 2005 and madenumerous recommendations on a range of issues, including reforms to the electoral system, public funding of political parties, gender equality and the creation of tribunals to resolveelection disputes. Very few of the proposals from the ERTC were incorporated in the Electoral

1 Refers to posting of results at Polling Stations (PS), accompanying results from PS to Collation Centre by partyagent and posting of results at Collation Centre


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Final Report Page 7

Act of 2006, arguing that the new Parliament elected in the 2006 elections should deal with thekey changes, some of which required a Constitutional Amendment. The CRC also presentedtheir recommendations in 2006, but due to different approaches emanating from Government, political parties and civil society, regarding the procedures to be used to adopt the new

Constitution, the decision was taken to create a National Constitutional Conferenceencompassing all members of Parliament, representatives from all districts of Zambia and civilsociety organizations (in total some 530 people), which would deal with possible amendments.The NCC was established in 2007.

Since then, the NCC has been meeting in various sub-committees (11) to discuss the differentaspects of the Constitution which need to be amended. Their work is based on therecommendations of the CRC, but also on the ERTC recommendations and other topics raised bythe various members. One main issue relates to changes to Chapter 3 of the Constitution, whichdeals with the Bill of Rights. Civil society is particularly keen to see the Economic, Cultural andCivil Rights enshrined in the new Constitution. This faces opposition from other stakeholders

and has been one of the main reasons for the delay in dealing with the amendment to theConstitution. Regarding the methodology used, once the 11 sub-committees have finished theirwork2, they will present it to the NCC plenary for discussion and approval. Once it is approved,the draft Constitution will be translated into the 7 major local languages for discussions with thecitizens. The citizens will have 60 days to provide inputs to the draft. The draft will be reviewedby the NCC, discussing the new proposals, and the final draft will be given to Government to besubmitted to the National Assembly. The National Assembly then has to discuss the draft andcan act in two different ways: Some amendments can be approved by Parliament in threereadings and with a 2/3 majority, while others require a referendum, especially all amendmentstouching Chapter 3 of the Constitution, plus all amendments where no agreement has beenreached at the NCC. It is therefore possible that the amendments will be either approved

separately by Parliament and a Referendum, or that all will be included in the Referendum toobtain more popular support to the new Constitution. During discussions with variousstakeholders (spokesperson of NCC, chairperson of Democratic Governance sub-committee,experts invited to sub-committees), it can safely be concluded that the amended Constitution willnot be approved earlier than 2010.

Election disputes

The ECZ has not been proactive in attempting to enforce the regulations included in the ElectoralCode of Conduct regarding the media. The various violations of the Code should have led tostronger actions by the ECZ, rather than simply placing an advert in the newspapers stating the

provisions in the Code of Conduct for the media. In general terms, the ECZ relies on the ConflictManagement Committees (CMC) as the forum to resolve disputes between the variouscontestants. While the CMC provide a good instrument to deal with disputes, it somehow derailsfrom bringing offenders to justice and the public is not informed about it as their dealings areconfidential. In this sense, the penalties stipulated in the Electoral Act are not applied and furtherbreaches can not be strongly deterred.

2 Until now 6 out of 11 finished their task


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Final Report Page 8

The main activity of the legal department of the ECZ during the election consisted in defendingcases presented by Anti Rigging Zambia against the ECZ and to prepare one regulation. TheECZ decided to transform the instructions given orally to election officials (posting of results atPolling Stations, start immediately with collation of results at constituency level), into an

amendment to the regulations, in order to ensure firm legal standing. These regulations weregazetted on 27 October, three days prior to Election Day. The District Electoral Officers (DEO)and Returning Officers (RO) were trained on the new regulations. This step helped to avoid possible confusion and challenges on Election Day (for complaints, please refer to theComplaints section below).

Under the Electoral Act of 2006, the ECZ is mandated to establish structures at both the nationaland district levels to resolve election-related disputes, prior to Election Day. A National ConflictManagement Committee (NCMC) was set up, comprising various election stakeholders andincluding the ECZ, political parties, NGOs, the police, the Ministry of Justice and the Anti-Corruption Commission. Committees have also been established at the district level (72).

The legal provision for a conflict management structure was seen as a welcome development in2006, but concerns were raised about the need for greater clarity over its role, as well as astronger operational capacity.

The time-frame for the filing and hearing of petitions over election results, does not correspondto the time-frame for the swearing-in of the President. Any petition filed is extremely likely to beheard after the elected candidate had taken office. The President has to be sworn-in within 24hours of the declaration of the results by the Chief Justice, yet any petitions over the results arefilled with the Supreme Court within 14 days of the declaration of the results.

Electoral OffencesThe Electoral Act and the Code of Conduct detail a comprehensive list of prohibited activities,all of which can face criminal charges. These are seen as being in line with acceptableinternational standards.

There are two categories of criminal offences: illegal practices and election offences.

Illegal practices during the campaign period, such as bribery, treating or disruption of publicmeetings, can be punished with a fine of up to Kwacha 4.000.000 (720), a maximum of fiveyears imprisonment, or both. In addition, anyone convicted of an illegal practice is prohibitedfrom voting or standing as a candidate in any elections over the next five years.

Complaints about electoral offences can be presented either to the High Court during theelectoral period, or to the Supreme Court about the results only.

Appeal procedures

The procedures of the Supreme Court in dealing with appeals to the election results are beingquestioned by local stakeholders for two reasons:

(1) The very short delay between the declaration of results and the swearing-in of the electedPresident (this time, it was less than 2 hours, by Law it has to be done in less than 24 hours) and


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Final Report Page 9

(2) The Chief Justice acts as the Returning Officer, who declares the presidential results.

For these reasons, the Electoral Reform Technical Committee proposed3 in 2005 to (1) have theChairperson of the ECZ declare the results and (2) establish a specific Electoral Tribunal to deal

in a fast manner with appeals.

These ERTC recommendations are included in the current discussions of the NationalConstitutional Conference.

Challenges ahead

It is worth noting that the legal framework regarding the elections will change once theconstitutional reforms, which have been discussed since 2003, take place. Some possibledifficulties have been identified in this regard, which may have a direct impact on the nextelections in 2011. They are as follows:

1) Time-frame

According to the various counterparts (spokesperson of the National ConstitutionalConference NCC, and the Chairperson of the sub-committee of the NCC onDemocratic Governance), the results of the work of the NCC cannot be expected to becompleted before the end of 2009. This implies that discussions at the NationalAssembly will only be held in 2010, touching some aspects which may have not beenagreed upon at the NCC (i.e. electoral system for election of President) and will needto be addressed by referendum, together with reforms of Chapter 3 of the Constitution Fundamental Rights. Changing the electoral system one year prior to elections is notgenerally considered as appropriate, due to the confusion it can create amongstakeholders.

2) Referendum

In order for a referendum to be held, a prior census has to take place, as constitutionalreforms must be approved by the absolute majority of adult citizens, not registeredvoters. To know this number (50% +1), the number of adults has to be assessedthrough a census, according to all interlocutors.

3) Voter registration

Special efforts must be made regarding the registration of most eligible voters, toascertain that the target figure of 50% +1 adults can be reached. Since, in order to vote,a person must appear on the voters rolls, only one portion of adults will be able toparticipate in the referendum, and thus the threshold will be automatically higher than50% + 1

4.

3 Included in the EU EOM 2006 recommendations4i.e. currently, the voters register contains approx. 4 million voters. If we assume that the number of adults will

reach 7 million in 2010, and the voters register would increase by 30%, the number of votes needed to approve thereform would not be 50%, but rather 74% of registered voters


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Final Report Page 10

While discussing strategies to avoid entrapment by deliberations of the NCC, and moving thewhole set of reforms to the National Assembly and referendum, it would seem advisable toadvocate for reforms relating to the electoral process to be detached from the overall discussionsregarding constitutional reforms, and be treated in a fast-track procedure. As these reforms do

not touch Chapter 3 of the Constitution (Fundamental Rights), they can be passed by theNational Assembly without the need for a referendum. One difficulty may be the need to agreeon some delicate topics, such as the system to elect the President. While many interlocutorsbelieve that there is a need to impose an absolute majority for the presidential elections with atwo-round system, many politicians do not seem in favour of this option. If a consensus is notreached, this issue will also need to go to referendum. It is very unlikely that the NationalAssembly will approve this change with a 2/3s majority.

III. ELECTORAL ADMINISTRATION

Structure and Composition of the Election Administration

All national and local elections and referenda are to be prepared, conducted and supervised bythe Electoral Commission of Zambia (ECZ). The ECZ is an autonomous body, responsible forvoter registration and the overall management and preparations of national and local elections.The current ECZ is chaired by Ms Florence Mumba, a former Justice of theSupreme Court, whoreplaced, only few months prior to this election, the previous Chairwoman, Justice IreneMambilima. The other members are: Ms Grace Mulapesi and Mr Joseph Jalasi. TheCommissioners are main policy makers and they are not in charge of any portfolio or departmentat the ECZ. The executive arm of the ECZ is its Directorate, led by Mr Dan Kalale, Director,

who has been in this position since the internationally and domestically criticised 2001 tripartiteelections. The directorate has some 100 permanent staff employed at its HQ in Lusaka. There areno permanent electoral officers at the provincial or district level.

In practical terms, the same structure of the electoral administration was used in 2008, as duringthe previous general elections in 2006. The Provincial Electoral Officers in charge ofcoordination of electoral preparations in each province were appointed by the ECZ. Town clerksor council secretaries were appointed as District Election Officers in all 72 districts of Zambia.At the constituency level, one Returning Officer and Assistant Returning Officers and one ITofficer, were appointed to each of the 150 constituencies.

There has been only a small increase in the number of registered voters5, thus the ECZ identified

the same number of polling stations as during the previous elections. In total, there were 6.456polling stations with 9.320 polling streams. The splitting of polling stations with more than 650voters into several streams became a good practice, meant to avoid long queues on ElectionDay. Polling station staff consists of five staff members: the presiding officer and four countingand polling assistants. In cases where more streams were needed, they were managed by anassistant presiding officer. Some 50.000 polling station workers were trained and had to pass atest in order to improve the quality of their performance during Election Day. Testing of polling

5 The ECZ added some 3.000 voters prior to the 2008 elections. This addition lead to an increase in the number ofpolling station streams from 9.314 to 9.320, but it did not affect the number of polling stations


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station staff led to a significant number of new polling station members6 and had a positiveimpact on the performance of the polling station committees. The ushers in charge of directingvoters and controlling voters queues were recruited at polling stations with more than onepolling stream.

The Electoral Commission of Zambia (ECZ) has informed that the Ministry of Finance and National Planning (with the significant contribution from international donors), has fullyfinanced the Presidential Election budget of K231 billion (44 million).

Administration of the Election

Despite the short time-frame provided, the ECZ proved its capacity to meet all importantdeadlines and improve technical preparations of the Election Day process. Due to the large sizeof the country, the main challenge the ECZ continued to face was the distribution of materialsfrom Lusaka to the districts and, the delivery and collection of polling staff and election

materials to and from the polling stations. The ECZ introduced and followed the electioncalendar and decided to deliver all essential materials a day before the polling day, which had apositive impact on the timely distribution of election materials.

The main area of concern was the absence of clear written instructions from HQ to the electoralofficers at the district, constituency and polling station levels, regarding the various stages of theelection process. The complex procedures for counting, packing and delivery of electionmaterials were not simplified by the manuals7 and instructions for returning and presidingofficers were revised and rewritten in parts, but did not provide detailed information. Speakingwith various senior representatives about the same issue (i.e. start of tabulation, procedures fortransmission of results), differing information were given. On the same note, information aboutthe changes in procedures8 with regard to 2006, were given only orally, without supportingwritten instructions, which lead to confusion on Polling Day.

A general lack of information exists regarding the electoral process, as ECZ meetings are notopen to stakeholders, minutes of the meetings are not published and often, importantCommission decisions are communicated to stakeholders with delay. The ECZ has not yetdeveloped a policy on informing the public on time, and provided only limited informationthrough its Public Relations department or on its website. The ECZs has been partly successfulto improve this aspect through the holding of regular meetings with political parties and briefingsfor the representatives of domestic monitors. Nevertheless, the major opposition political partiescomplained about being informed late regarding some important commissions decisions (i.e. the printing of high number of additional ballots and the addition of 3.000 voters on the voters

register). Domestic monitoring groups criticised the ECZ for organising only ad hoc meetingswith representatives of civil society organisations and for not providing sufficient informationregarding the electoral process.

6 No exact figures have been released by the ECZ7 The election administration was using the same manuals for this presidential by-election as for the 2006 tripartiteelections8 There were no forms developed regarding the delivery and distribution of duplicate voters cards.


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One of the key controversies between the ECZ and the opposition political parties was caused bythe ECZs decision to print and distribute a relatively high number of reserve ballots, whichcaused a lack of confidence among the opposition parties towards the electoral administration.The ballots for the presidential by-election were printed by Universal Print CO in Durban, South

Africa, as was done for the 2006 election. The total number of ballots printed was 4,523,300,with a surplus of 579,150 ballots to the number of registered voters. The ballots were distributedaccording to the number of voters per stream, in stacks of 50 ballots. Therefore the total numberof distributed ballots was already higher that the number of registered voters

9. The same system

of distribution of extra ballots, with an approximate 15% surplus, is standard practice in manycountries. Nevertheless, this surplus was criticized as being too high by the opposition parties,despite the ECZs explanation for the need for reserve ballots, for cases of spoiled or damagedballots.

The ECZ understood that in order for the process to proceed in an orderly manner, consensus hadto be reached with the political stakeholders on all major issues, including the number and

method of distribution of the extra ballot papers10

. The ECZ agreed, during a first stage, tochange the method of distribution of extra ballot stacks. Instead of distributing them directly tothe Polling Stations, they were to be stored in the district electoral offices. Later, the ECZdecided to store the remaining stacks of ballots (365,200) at the Lusaka airport, under theircustody.

The accreditation of domestic monitors and international observers was ongoing and oftencontinued beyond the deadline set up by the Commission. The accreditation of polling agentswas done at the district level and no significant problems were reported by political parties. Onthe other hand, the accreditation of domestic monitors was centralised, with accreditations cardsissued at the ECZ HQ in Lusaka. The procedures for accreditation were complex, and often

monitors complained that accreditation cards were not delivered on time or were printed withincorrect data.

The ECZ did not accredit 3.000 activists from Anti-Rigging Zambia, as the leader of theorganisation was charged by the police with spreading false information. The ECZs decision hasnot been seen as impartial, as the criminal charge was against a single person and there was nocourt decision on the matter. The Anti-Rigging Zambia activists were closely cooperating withthe Patriotic Front.

The ECZ did not issue Certificates of Authority for polling agents, domestic monitors as well assecurity personnel assigned to particular polling stations. This possibility is foreseen in theElectoral Act. The Certificates of Authority would have allowed those officials, agents and

monitors who were on duty in polling stations where they were not registered, to vote.Thousands of polling agents and domestic monitors could not vote, as political parties anddomestic monitor organisations were often not able to recruit their activists from polling stationswhere they were registered.

9i.e. With 360 registered voters, 8 staks of 50 are delivered totalling 400 with an exces of 40 ballots

10 Despite the fact that the same system of distribution was used in the previous elections, it did not become a matterof controversy


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The ECZ increased the level of transparency of the result process, compared to previouselections. The decision to post the protocol of the results at the polling stations was appreciated by all stakeholders, as well as the decision taken only few days prior Election Day, to allowpolling agents to follow the delivery and transmission of results from the polling station to the

tabulation centre. However, as the major political parties were not able to sufficiently control11the polling, counting and tabulation of results, there was an urgent need to make public allpolling stations results and thus avoid any doubts concerning the results process.

Voter education activities were assessed by domestic monitors as having been insufficient.Mainly, voter education activities were carried out through the electronic media, which did notefficiently reach rural populations. Civil society criticised the ECZ for not cooperating with themin giving NGOs the opportunity and funds to spread messages about the importance of everypersons right to vote, the possibility to replace lost cards, and to avoid illegal practices such asvote buying and treating.

Voter Registration

Since the 2005 registration, the ECZ has not been carrying out continuous voter registration, asrequired by the Electoral Act, due to financial constraints. After the presidential by-election wascalled, the ECZ announced that additional voter registration could not be conducted prior to theupcoming elections, due to time constraints. Despite the fact that at least 500.000 citizens12reached the age of majority during the last two years, they could not register as no registrationupdates have taken place since 2005, as stated earlier. In addition, a significant number ofvoters13 have changed their place of residence and did not have the possibility to re-register intheir current places of residence, and therefore many of them could not participate in theelections. It has to be stated that these aspects were not seen as a major issue in this by-election

by the political parties and no special effort was done to solve them. While the Constitutionstates that there is a period of 90 days in which by-elections have to be held, the political partieswere discussing the possibility to amend the Constitution to avoid the Presidential by-election totake place and find an alternative form to select the President. While they could not agree on thisissue and the by-election took place, they could have extended the 90-day period provided by theConstitution for the by-election to allow for a voter registration exercise to take place.

The voter register for the 2008 presidential election comprised 3.944.136 voters. Since 2006, theECZ added some 3.000 voters who could not vote in the 2006 elections despite having registeredand being in possession of voter registration cards, as their data had not been properly entered, orthey were deleted or lost during data processing in the course of the last registration andverification exercise. According to demographic projections for 2008 provided by the Zambian

11 The two major opposition parties (Patriotic Front and UPND), have declared that they were not able to cover all9.320 polling streams in the country with their polling agents.12 The figures provided by the National Statistics Office enables the EU EEM to conclude that the number of young

people who reached the age of majority is higher than figures mentioned by Zambian interlocutors and is closer to

the number of 660.000.13 According to Zambian interlocutors some 200.000 state employees have changed their place of residence since2006


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Central Statistical Office, the number of Zambians 18 years and older was 6.272.140. This meansthat only approximately 63% of the eligible population

14was registered to vote.

The last voter registration exercise was organized in 2005 prior to the 2006 tripartite elections.

Every Zambian citizen that became 18 years old by 31 July 2006 and was in possession of theNational Registration Card was eligible to register as a voter for the 2006 tripartite elections.Voter registration lasted from 31 October 2005 until 31 December 2005 and captured 4.015.639entries. The inspection and verification period took place between 5 and 18 June 2006.Following the registration process, registered voters received a Voter Registration Card. As of 1August 2006, the ECZ had captured 3.940.053 eligible voters, which represented a significantincrease in the number of registered voters compared to 2.604.761 registered voters for the 2001general elections. However, that figure only represented 71% of the targeted voter registrationfigure, as the projected total of adult Zambian citizens was 5.517.443 in 2006.

On a positive note, the ECZ facilitated the replacement of lost voters cards in order to enable

voters which had lost their voters card to participate in this Presidential by-election. The exercisewas conducted country wide from 21 to 26 September 2008 and resulted in the printing of some67.700 voters cards. However, significant numbers of voter cards15were not picked up by voterson Election Day, due mainly to errors in the distribution of cards.

Registration of Candidates

The period for nominations lasted from 23 to 26 September 2008. All applicants who submittedtheir nominations were registered as presidential candidates. These included acting PresidentRupiah Banda of the ruling Movement for Multiparty Democracy (MMD), Michael Sata of thePatriotic Front (PF), Hakainde Hichilema of the United Party for National Development (UPND) and Brigadier General Godfrey Miyanda of the Heritage Party (HP). Several small opposition parties withdrew from the race and decided to back the candidate of the ruling party RupiahBanda.

Election Day

The diplomatic watching exercise did not allow for a deployment and coverage similar to a fullfledged EUEOM. The following results, and possible comparisons with the previous EUEOM2006 report in Zambia, are therefore only indicative.

Polling

Watchers, coordinated by the EU EEM, visited a total of 753 polling stations, representing 8% ofthe total. The overall assessment of the opening and polling procedures was rather positive, asmore than 93% of the observed polling stations received a favourable evaluation. Generally, theopening of polling stations and the distribution of election materials went smoother than in the

14 Voter registration is based on active registration where eligible citizens have to apply for inclusion on the voterregister and be in possession of a National Registration Card15 Until 15 November, no exact data concerning the duplicate voters cards has been released by the ECZ. Accordingto ECZ estimations, some 30% of voters cards were not picked up by voters on Election Day


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last elections, although close to 10% of polling stations opened with a delay of more than half anhour.

Election Day proceeded well. Voter turn-out was lower than in the past elections. Polling took

place in a calm and orderly environment, despite some problems encountered with thedistribution of duplicate voters cards, particularly in Lusaka. The often large distances to the polling stations created uneven access to voting. The elderly and women were particularlyaffected by this situation. According to civil society interlocutors, monitors did not obtainCertificates of authority which would have enabled them to vote in a Polling Station different tothe one at which they were registered to vote.

Polling procedures were assessed positively in almost all polling stations visited, demonstratingimprovements in staff training and in the overall conduct of election officials. Domestic monitorsfrom NGOs were present in 84% of visited polling stations. Party agents from at least twopolitical parties were present in 97% of polling stations, contributing to the transparency of the

process. No special programme was put in place to facilitate the voting of the disabled. Officialcomplaints to the Presiding officers were only lodged in 2% of the visited polling stations.

Counting

Compared to polling, the counting process was assessed less positively, due to the inability of polling staff to correctly complete all necessary forms. Nevertheless, it was conducted in atransparent manner, with election officials demonstrating commitment to their duties. Thecounting procedures were assessed positively in 82% of the polling stations visited (69). Thewidespread lack of ballot reconciliation before the opening of the ballot boxes, noted already in2006, continued, as it was completed only in 56% of the observed polling stations. However, ona more positive note, adjudication on the validity of the votes was conducted in a reasonable and

consistent manner, in practically each observed PS. In 12% of the polling stations, the resultsforms were not completed correctly, which might indicate some shortcomings in polling stafftraining.

In contrast to 2006, when in 56% of the polling stations party agents did not receive a copy of theresults; in 2008 this proportion was reduced to 17%, marking a very positive step towards furtherenhancing the credibility of the process. It must however be stated that, contrary to 2006, a newECZ regulation was introduced stipulating that party agents should be issued copies of theresults. Similarly, results were posted at the polling station in 91% of cases. Only one complaintabout counting procedures was reported by the diplomatic watchers.

While diplomatic watchers reported that there was a lack of understanding of procedures on thepart of both election officials and domestic monitors/party agents, the principle of transparencywas maintained throughout. Any minor numerical errors that may have occurred as a result of thecomplex procedures and lack of understanding would not jeopardize the integrity of the finalresults.

Tabulation and Electronic Transmission of Results

On election night, 35 teams of diplomatic watchers followed the process of tabulation of results,which commenced with the first delivery of polling station results on election night. The


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problems encountered at the tabulation centres were connected with the incorrect packing ofelection materials by the presiding officers, and with a poor organisation of the handover of theelection materials. More than 25% of the visited collation centres were described as poorlyorganized and, in a similar number of collation centres, party agents could not fully observe all

the proceedings.

As in previous elections, most returning officers did not, due to a lack of clear instructions,decide on disputed ballots and, in most cases, only accepted the figures provided by the pollingstation presiding officer.

16This indicates some shortcomings in the training, and again brings

forward the necessity to design detailed written procedures. Moreover, decisions overruling thevalidity of the disputed ballots17 are naturally perceived as a politically sensitive issue. Theprocess of tabulation itself was assessed positively only in 66% of the visited collation centres,although diplomatic watchers did not report any discrepancies between results announced atpolling stations and the tabulation of results at the constituency tabulation centre. In all collationcentres visited, the results were publicly displayed outside.

Returning officers announced the results of the presidential by-election at each constituency,after all polling station results had been tabulated. After the announcement of results, theprotocols of the results were sent to the District electoral offices, where they were transmitted tothe ECZ Headquarters. The key documents needed for the tabulation of results at the nationallevel were: (1) the Protocol of election results per constituency and (2) the Records of proceedings with tabulated results per constituency, with a breakdown to the polling stationlevel. These documents were sent by fax. Separately from this, specially designed Optical-Marked Recognition (OMR) forms, with individual polling stations results, were scanned andsent electronically to ECZ HQ, to enable a crosscheck of results announced at each constituency.The transmission process was assessed less positively by diplomatic watchers due to problems

with equipment, connectivity and a lack of clear procedures. Functionality of the equipment forthe transmission of results, together with the operation staffs lack of familiarity thereof, leavesmuch room for improvement, as in only 33% of the cases, the equipment was ready for use and,in 25% of the cases, the operations staff was reportedly not sufficiently familiar with theequipment. However, the faxing of results went smoothly in most district electoral offices. Onthe other hand, this could only be said for about 40% of OMR forms transmissions. It is ourunderstanding that the crosschecking never took place at the ECZ between the OMR forms andthe results protocol by constituency.

Announcement of Results

The ECZ set-up two venues to deal with the reception and announcement of results. One was at

the ECZ HQ, where the results were received from the districts electoral offices, and another atthe Mulungushi Conference Centre, where results were announced. The ECZ began to announcethe partial presidential results on 31 October, several times per day. The last two constituencyresults, together with the final presidential results, were announced in the afternoon on 2

16 As the number of disputed ballots per constituency was very low, this issue did not raise any controversies at thetabulation centers17 Disputed ballots are either valid or invalid ballots. The dispute relates to the decision of the presiding officer overtheir validity or invalidity, and this decision was disputed by the party agents present


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November, i.e. one day earlier than originally planned by the ECZ18. The MMD candidateRupiah Banda was sworn in less than 2 hours after the declaration of results, as the FourthPresident of the Republic of Zambia.

Similar to the previous presidential election in 2006, the first partial announcements of resultswere mainly based on urban constituencies, as the collection of results and election materialsfrom polling stations in remote rural constituencies lasted more than one day. As oppositioncandidate Michael Sata had more support in the urban areas, he was in the lead for two days.Rupiah Banda took the lead only after more than 130 constituency results were tabulated andannounced on 2 November.

In addition to the announcement and display of election results on two large screens, hard copiesof the results were delivered to political party representatives, journalists and to monitors andobservers. Only copies of protocols with total election results per constituency were distributed19to party agents, and no results with a breakdown by polling stations were made public by the

ECZ

20

.

Presidential Election Results

The MMD candidate, Rupiah Banda (40.09%), won the elections by receiving only 35.000 morevotes than his main opponent, Michael Sata (38.13%) of the Patriotic Front. Michael Sata wonthe elections in four of nine of Zambias provinces but, in the remaining provinces, receivedcomparatively a very low number of votes. Support for the ruling party candidate Rupiah Banda,was more evenly distributed among all provinces. The candidate of the UPND, HakaindeHichilema (19.7%), who was the most successful candidate in the Southern province, came thirdas in the previous presidential election, although he obtained 5% less of national votes than in2006. Brigadier Godfrey Miyanda of the Heritage Party (HP) received 13.683 votes, representing

0.76% of the national vote.

The 2008 presidential by-election was marked by a low voter turn-out. Out of the 3.94 millionregistered voters, only 1.79 million voters cast their vote, i.e. 45.4% of registered voters inZambia. In comparison to the 2006 tripartite elections, voter turnout decreased by 25 percentagepoints. The main reason for this decrease is, according to various sources: (1) voter apathy and(2) the tone of the campaign, including announcements by the Head of the Army and theInspector General of the Police that they were ready to deal with any form of violent protest.However, between 5% and 10% of the decrease can be explained by: (1) voters who changedtheir residence since 2006 and could therefore not vote and (2) deceased voters.

The decision of the ECZ not to carry-out the continuous registration process, as prescribed by theElectoral Act, eliminated an important number of voters which would have probably participatedin the election. In addition, in cases where voters lost their voter cards, only a fraction of them

18 Presidential results should be announced as soon as possible after Election Day. According to the ECZsschedule, the results were expected to be announced from 3 November onwards.19 According to the ECZ, not all protocols with results per polling station were faxed and received prior to the finaldeclaration of the results20 If present, party agents could compare the respective polling station results announced at polling stations to theresults tabulated at the constituency centre. A similar crosscheck of polling station results could not be done at thenational level


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(74,200) were able to apply for a duplicate card during the one-week period in September.Information regarding the possibility to request a replacement voter card was not effectivelyadvertised and, not all applicants for a new card were able to collect them on Election Day. Thiswas mainly due to problems the ECZ was experiencing with their production and timely

distribution.

Taking into account that the difference between the winner and the second candidate is of 35,000votes and that some 700,000 people were not able to vote (potential new voters which could notregister and voters who change their place of residence and were therefore not able to vote attheir new locations), it is possible to envisage that the outcome could have been different if theright to vote would have been granted to all potential voters.

The number of invalid votes decreased to 23.596 (1.3%), which is significantly lower than in theprevious elections, where the total figure of invalid votes was 48.936 (1.75%) recorded in only110 constituencies21instead of in all 150 constituencies.

IV. CAMPAIGN

The campaign was generally conducted in a peaceful and orderly manner, with some isolatedincidents taking place as explained below. Freedom of assembly was not constrained by police orother authorities. Public campaign activities were performed with a low profile and media-driven, rather than in the streets. Rallies were the main campaign activity for all parties. The twomain candidates were on tour around the country. Locally, according to the EU EEM rovingteam, mobilization was low. MMD was facing internal disputes after the heavily contestednomination of Rupiah Banda as their candidate, which influenced their campaign. The

implementation of the Public Order Act did not raise major concerns among the stakeholders.

A week ahead of Election Day, the campaign heated up, fueled by an opinion poll launched bymarket research company Steadman Group, stating that Michael Sata (PF) would be leading with46% of support from the electorate. The candidates used Independence Day (24

thOctober) to

gain more support and attack each other. Acting-President Banda used the official ceremoniesextensively to promote himself.

A specific trait of the campaign in Zambia is the traditional endorsement of a candidate. Theendorsements are announced in radio, television and newspapers by canvassing associations,trade unions, social groups, traditional chiefs and churches, for a party or candidate. Candidatesmay get a welcome present to show support or make promises in exchange for endorsements.

Violence/ Harassment

In the last two weeks before Election Day, attacks against PF supporters were reported on a daily basis in the media. PF campaign debates were disturbed (Journalist Forum on 17

thOct.). PF

supporters displaying posters were beaten. In one occasion, in Munali constituency, the MMD

21The 2006 presidential results of 40 constituencies were published with 0.0% of invalid votes. According to the

ECZ, the returning officers mistakenly disregarded the figures when completing the results protocols perconstituency


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speaker verbally attacked the PF, which was interpreted as a signal to attack reporters from MuviTV and The Post. In several occasions when rallies of MMD and PF coincided, MMD tried toforce PF to leave. MMD cadres in dispute with PF cadres called several times the police to getPF cadres arrested for provocation.

According to The Times, UPND members tried to take a copy of the Voters Register from agroup of MMD supporters doing door-to-door canvassing on 18 October. The case was reportedto the Conflict Management Committee and resolved.

Rupiah Banda (MMD) and his party cadres threatened several times certain parts of thepopulation (i.e. provinces) that they would have to bear the consequences if they did not vote forhim (...will be considered as useless, we shall say they are dull people).

Michael Sata (PF) touched, during his campaign, a taboo topic which could open a Pandorasbox. He called on the Western Region to review the Barotse Agreement, which declared theformer Barotse colony as part of Zambia. This was perceived as a threat to the unity of Zambia because it could lead to the breakaway of the Western Province and other provinces couldfollow. Sata confirmed his stand in The Times on 25 October.

Interlocutors stated that violent clashes were not always reported to the police or journalists,leading the EU EEM to assume that the number of incidents could be higher than reported.

Vote buying

Vote buying is an ongoing subject amongst NGOs interlocutors. Informants claimed thephenomenon to be widespread. The market price appeared to be Kwacha 50,000 (10) for avote. The techniques described were either to simply exchange voters cards for money, or to

invalidate voters cards by making the serial number unreadable. Another method was to simplyexchange money for a promise to vote. The practice of handing-out food during ralliescontinued, which was reported by the media. This habit has, in the present socio-economicenvironment, an obvious voter-buying effect.

V. MEDIA

Media landscape

After the transformation of Zambia into a multiparty democracy in 1991, private print houses

were established and a greater diversity in media outlets appeared. Today, state-owned ZambiaNational Broadcasting Cooperation (ZNBC) is still dominating the airwaves with The Postbeingthe main oppositional voice in print.

Information programmes are disseminated by two TV stations: ZNBC (state-owned) and MuviTV (private). Muvi TV is supposed to have a 70% share of the TV audience in Lusaka and thearea within 100km. According to ZNBC director Joseph Salasini, about 90 % of Zambians haveaccess to television. In the rural areas, only ZNBC can be received.


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Radio is the main source of information, particularly in the countryside. The ZNBC is holding 4radio stations. Radio 1 is airing in all the 7 main language groups; Radio 2 broadcastsinformation in English and Radio 4 is an entertainment channel. Private Radio Phoenix is knownand appreciated for a higher standard in reporting. Due to live call-ins, Radio Q-FM became the

most popular radio in Lusaka. Hot-FM and 5-FM are also used as sources of information inLusaka and popular for their live-discussions. Sky-FM is a private commercial radio whichstarted as a community radio in Southern Province and is today also covering Eastern provinceand the Copperbelt. Sky-FM has been provided by the government with a strong transmitter.There are additionally four Christian radios, Radio Yatsani being an important voice.

Altogether, 35 private (commercial and community) radios are providing their services.Community radios (including the Christian stations) are obliged to follow a non-partisan policyand not get involved in politics. Some received starting assistance from the donor supportedMedia Trust Fund or UNESCO. Their news reporting is mainly local. State-owned news agency(ZANIS) and ZBNC provide information and also audio-files by e-mail on national and regional

topics.

The major print outlets are Times &Daily Mail(state-owned) and The Post(private). Accordingto Steadman Group, the last market analysis was conducted in 2005. All current numbers ofoutreach, circulation and coverage are estimations. The last comprehensive study on the medialandscape in Zambia dates from 2005.

ZANA (the Zambian News Agency) merged in 2006 with the Press Department of the Ministryof Information to ZANIS, and thus possesses a monopole with regards to informationdissemination. ZANIS has branches in all districts and is providing information from all parts ofthe country. Community radios with no capacity to cross check information are particularlyaffected by this monopoly. Due to their small budgets, they cannot afford to subscribe to aninternational news agency and have to rely on ZANIS. ZANIS is better equipped with videocameras and editing facilities than the ZNBC news department, and is also able to determinenews coverage by deciding where to send reporters.

Legal framework

Media associations have lobbied for years for the implementation of an Independent MediaAuthority and a Freedom of Information Act. Both have been introduced to Parliament afterstrong pressure from Civil Society in March/April 2008. Due to differing opinions on thecomposition of the Board, between Parliament and the media associations, it was withdrawn tobe reintroduced later this year. The Zambian Penal Code and State Secrets Act are reportedly

being used to silence the media and will be reviewed.

Upon the recommendation of the Human Rights Council (Working Group on the niversalPeriodic Review, Geneva, 19 May 2008), Zambia agreed to continue the reform of the PenalCode in relation to the prosecution of journalists, and consider taking steps to change theDefamation Act in the Penal Code, in order to broaden the space for exercising the freedom ofexpression and a swift adoption of the bill on Freedom of Information.

Public media are incorporated into the Ministry of Broadcasting and Information. ZNBC (radioand television), the dailies Times and Daily Mail, as well as the news agency ZANIS, are


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departments of this Ministry. ZNBC Act 2002 states an obligation for fair and balancedcoverage. Duties, obligations and conflicts in the private media sector are handled by the MediaCouncil, a self-regulative body composed of the media houses. The only exemption is during theelection period, where complaints are registered at the ECZ and their Conflict Management

Committees (CMC) deal with the issues, instead of the Media Council.

The Electoral Code of Conduct 2006 was applied for the by-election 2008, without furtheramendments. Article 12 and 13 describe in detail the duties and obligations of the media, theallocation of free air time for the candidates, and its quantity.

Performance of the Media

Zambias vibrant media landscape participated actively in the electoral process, throughreporting and carrying campaign advertisements, as well as printing/ airing information materialprovided by the ECZ. Trends in the evaluation of the Steadman group media monitoring project

show that, most of the election related articles were campaign reports (about 50 70 %) with aminority of reports dealing with the policies of the candidates or the electoral process. OnlyHakainde Hichilema (UPND) received more attention and radio/television coverage forcriticizing malpractices (in about 50% of the news items he was mentioned in radio/television)than for his campaign. Generally, media attention for his candidacy was very limited.

Polarized Media were a major obstacle for the election process. According to interlocutorscontacted, journalists standards and ethics in reporting deteriorated from the beginning of thecampaign, and their performance shows lower levels of quality than in 2006. Most of theinterlocutors blame the public presentation of the candidates for it. The editor of the oppositionnewspaperThe Postwas reported as pursuing a personal vendetta after his favorite candidatedid not succeed in the primaries of the MMD party. The Post made a u-turn and reportedextensively about the candidate of the PF party, who had been previously viciously attacked byits editor. The print media was divided into pro-Banda papers (state-owned Times and DailyMail) and pro-Sata and contra-Banda dailies (The Post). The Daily Mailwas relatively sober inits style, but still unbalanced in favor of Banda. The Postpresented Banda in a bad shape bylining up quotations of him and putting them into a degrading context. The editorials wereusually aggressive in word and content. President Banda won a court libel case against chiefeditor Frank Mmembe (27 September), trying to restrain The Postfrom further attacks.

State Media was massively in favor of incumbent president. ZNBC TV and radio werepowerful tools for disseminating government positions. ZNBC was, outside of Lusaka, the onlytelevised information available. Only recently, the transmitters were enforced by technology

provided by China. ZNBC, as part of the Ministry of Information, is clearly bound to producestories on behalf of the government and the President22. ZNBC TV was covering the activities ofBanda in length during the news programmes, documentaries and advertisements. Trends fromthe monitoring projects (Steadman Group, FODEP and Media Institute of Southern Africa-MISA Zambia) confirmed the observations of the media expert, that Banda always receivedmore air-time on ZNBC (MISA: with 49 out of 85 election related stories in two weeks threetimes higher than any other candidate, FODEP: During the nomination period, Rupiah Banda

22 Interview Director General Salasini, 21 October


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received about 16 minutes (in a 30 minute program) of coverage), while the other candidateswhere more or less not covered at all. Throughout the month of September Banda (MMD)received an average of 8- 10 minutes of coverage per programme. In addition, the hierarchy ofthe evening news programme was predominantly in favor of Banda, who was always referred to

as the acting President and never as the candidate, etc. According to the monitoring resultsof MISA, opposition candidates did not receive most of the times coverage includingsounds/images

23. Usually stories on candidate and acting President Rupiah Banda were the

opener and were accompanied by footage. Most of the reports were single sourced.

Table 1/2: State-owned ZNBC television and ZNBC radio in favor of the acting President

Source: Preliminary Results of Steadman Group

23MISA presentation at media workshop 11 November: MMD 32 out of their 49 stories including sound-bites; PF8 out of 18; UPND 8 out of 17; HP 1 out of 1


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Source: Preliminary Results of Steadman Group

Political advertisements for the acting-President were far more numerous then for hisopponents. The Times was allowing far more space for campaign advertisements for Banda(including supplements by MMD which were not sufficiently marked as political campaignmaterial documenting reports in The Post about Sata). These adverts usually exposed theopponent (Sata), sometimes violating ethic standards (Satanic files; The one mangovernment - Dictator).

Article 13 (1) of the Electoral Code of Conduct stipulates that air-time should be equallyallocated to all political parties, and article 13 (2) sets a limitation to bought airtime for 30minutes, per medium, per week. ZNBC General Director Salasini stated that these provisions:do not make sense, it does not correspond to our reality (Interview on 22 October).

Only some of the community radios resisted the temptation to earn good money by selling airtime to different candidates, even though they are obliged by their constitutions to abstain from partisan politics. Some broadcasters (Catholic Yatsani Radio, Lusaka, interview 28 October),sold airtime to candidates, but insisted on a live debate following the campaign programme, withthe candidates answering questions from the listeners.


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Table 3: Campaign spots based on Steadman Group Data

Source: Original data captured by Steadman Group, recalculated by EEM

Most of the broadcasters interviewed claimed they were not aware of the 30 minutes clause inthe Electoral Code of Conduct. ZNBC, having being particularly obligated to ensure balancedprogramming and fairness according to the 2002 ZNBC Act, clearly violated their own principlesin respecting the Electoral Code of Conduct. During nomination time, MMDs campaign spotswere running, according to FODEP, for at least about 50 minutes per week, while the Electoral

Code of Conduct limits them to 30 minutes. Overall calculations (based of the original dataSteadman Group captured) show that ZNBC aired, in October, more than the double (average of72 minutes per week) of the allowed airtime. Similar figures for ZNBC radio indicate that, theMMD campaign used intensively ZNBC to reach out to the rural population, where ZNBC is thesole information provider. This strategy seems to have been efficient, since the rural voterscontributed vastly to gain the majority of votes for Banda. Interestingly, Q-FM, the most popularradio station in Lusaka, carried out a large number of spots for PF and also a considerablenumber of special programmes, probably contributing to the popularity of candidate Sata (PF) inLusaka. Interestingly also UNZA, the University Radio, trained by the Department of MassCommunication, did not abide by this rule. It would have been very interesting to observe themonitoring of results for news dissemination of Q-FM and UNZA, compared to ZNBC, but the

monitoring groups did not undertake this activity. In addition, election advertisements for Banda(MMD) and Sata (PF) in the electronic media were not identified as such, while Heritage Partyand UPND informed the audience at the end of each spot of authorship.

Complaints and Conflict Resolution

The ECZ is the body mandated to receive complaints regarding election related incidentsregarding the media. The ECZ legal department received complaints, had two police officers/prosecutors to investigate the cases, and the Conflict Management Committee (CMC) to mediatebetween the conflicting partners. According to the ECZ, the body worked very well after first


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experiences in 2001 and 2006. Due to limited personnel capacity, they act in a passiveposition, waiting for somebody to complain. Two cases have been dealt with and transferred tothe CMC. The result was an apology and a retraction (reply) in the newspaper. In addition, theECZ reported that they had several meetings with newspaper editors, asking to restrain

themselves from too aggressive reporting.

During the post election period, the Media Council can deal with complaints regarding unethicalreporting, as well as the Zambia Center for Interparty Dialogue, who served as a model to createthe Conflict Management Committees.

In September, acting President Rupiah Banda complained to the Media Council and High Courtabout The Post. On 27 September, the Lusaka High Court granted Rupiah Banda an injunctionrestraining The Post, and any of its agents, from publishing libelous words against him.

On 13 October, Anti-Rigging Zambia filed a lawsuit, complaining against the extended coveragein favour of candidate Banda (MMD) by ZNBC, against the ECZ and the Ministry ofBroadcasting and Information. The case was heard and dismissed (see Complaints and Appealspart below for more information). MISA, who was monitoring ZBNC programming, observedthat there was a slight improvement towards more balanced reporting after the complaint.

Pressure against journalists

While state agents refrained from action against the media or journalists throughout thecampaign period, several physical attacks against journalists had to be noted. MISA Zambiacounted 16 cases of violations of media freedom during the electoral period (September October), compared to 6 cases from January to August.

Mainly targeted were reporters from The Post, who were widely considered by the majority ofnational and international stakeholders as prejudiced and going too far, according to the Code ofConduct for journalists. After a couple of attacks while reporting MMD- activities in mid-October, the Inspector General of the Police reminded his officers to protect journalists and nothinder or attack them while fulfilling their duties. One main incident occurred on 18 October:Muvi-TV reporters were attacked with stones by MMD- supporters at an MMD rally, after theLusaka Province Minister said that he would personally ensure the closing down of Muvi TV forbeing bought by PF (The Post19.10., p.7). Also, Postreporters and vehicles passing by wereattacked. On 19 October, the journalist association MISA-Zambia complained publicly about it.

On Election Day, only one incident involving the violation of campaign silence was reported: Inthe village of Petauke, MMD cadres stormed the radio station Explorer for allegedly re-airinga programme featuring PF- candidate Michael Sata. Proprietor Wilson Phiri, denied having airedsuch a programme and complained about harassment.

The day before the declaration of the final results, the Information Minister, Mike Mulongoti,issued a press statement, in which all radio stations were advised to desist from allowing liveinterviews with people wishing to comment on the on-going presidential election results. TheMinister of Information stated that: the government is concerned that some people have beenmaking inflammatory statements, protesting against the results released, which might inciteviolence by some members of the general public. Mulongoti indicated with this press statement,


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that radio stations could be prosecuted if they aired critical voices from listeners, during phone-inprogrammes. Sky FM, a private radio station, cancelled its live-programme on Monday morning,fearing repressions.

In the post-election period, new physical attacks and threats against Post reporters werelaunched, which were criticized by PAZA (Press Association Zambia) and attributed to MMDcadres. On 12 November, the police tried to stop a post-election live-programme of communityradio Icengelo (Copperbelt Province, proprietor: Bishop of Ndola). Station manager, FatherFrank Bwalya, was arrested for interrogation for allegedly inciting the public and transferred toKitwe police station.

VI. COMPLAINTS AND APPEALS

As with other aspects of the electoral process, the EU EEM was not able to gather much

information concerning complaints and appeals, due to a missing structure on the ground toobtain information about cases and their follow-up by competent authorities. The informationassessed was provided by the ECZ and the High and Supreme Courts.

Complaints related to the election process could be brought to the attention of either the ECZ orthe High Court. If the case was presented to the ECZ, it would decide either to deal directly withit or refer it to the Conflict Management Committees (CMC). Conflict Management Committeeswere established at the national and district levels, and were composed of members of the ECZ,political parties, civil society, police and the Anti-Corruption Commission.

The cases reported to the EU EEM related to (1) Gifts given by the MMD, (2) Intimidation by

the PF, (3) Defamation by the PF, (4) Buying of voters card by the MMD, (5) Petitions by AntiRigging Zambia against the ECZ with regard to voter registration, (6) Petitions by Anti RiggingZambia against the Government for the use of resources for the MMD, (7) Petitions by AntiRigging Zambia against the Government, Zambia National Broadcasting Commission (ZNBC),The Times and The Daily Mailnewspapers.

In the cases dealt with at the CMC, the accused parties recognised the accusations and thesolution was to decide not to repeat these actions again. No additional follow-up took place inthese cases, while the option to go to court remained open if the plaintiff was not satisfied withthe outcome of the CMC deliberations. The cases presented to the High Court were eithersojournedsine die, or rejected due mainly to lack of evidence,

24or because the case argued was

not admitted25.

The PF informed that they believed the elections were characterized by fraud and manipulations.The Electoral Act and Regulations were, according to the PF, disregarded by the Director ofElections and the Director of IT of the ECZ, the Commander of the Zambian Army, theInspector General of the Police and Mr. Banda. They asked their lawyers to appeal the electionresults and to request a recount and scrutiny for 78 constituencies within 39 districts in 8

24 i.e. Anti Rigging Zambia vs. ECZ for not opening voter registration25i.e. Anti Rigging Zambia vs. ECZ for not prohibiting chiefs to make public declarations supporting candidates


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provinces. Their argument is that, they believe vote rigging occurred in some polling stations inthese constituencies with, according to them, more than 100% of registered voters actuallyvoting. The appeal was presented on 14 November to the Supreme Court. While the PFmentioned that they did not believe that their case would be dealt with properly (they argue that

the court system favours the ruling party), they stated that they wanted to make a point by usingthe judicial channels instead of street protests, which would only bring loss of life. Inconversations with the Supreme Court, they stated that, depending on the number of witnessesboth parties would present to argue their case, the duration of the case would last some months.

The UPND mentioned, in conversations with the EU EEM, that they also contest the results, butthey had decided to start working on improving their skills for the 2011 elections, instead ofspending efforts and money in the courts now. They already approached the courts in 2001whitout success and believe that it does not make any sense, particularly under the currentconditions. They stated however that they were willing to provide the PF witnesses to sustaintheir case, if requested to do so.

VII. SUPPORT TO DIPLOMATIC WATCHERS

Deployment

In order to secure the best observation coverage, information was provided on how many teamsshould ideally be deployed to each province. Under the supervision of the training team, the localcoordinator, contracted through DFID, was in charge of the liaison with the diplomaticobservers, through designated focal points, regarding the logistical aspects of the deployment.

However, reaching remote areas was hampered by time availability of the watchers and the longdistances and bad road conditions, (many watchers were driving their own cars). Indeed, eventhought it was important to secure balanced geographical coverage for a meaningful observationexercise, as stressed during the EU Head of Mission meetings, in the letters to the embassiesfocal points and during the training sessions, the final deployment plan showed a concentrationof diplomatic watchers in Lusaka city, Central and Southern provinces. Two of the main MMDstrongholds, Western and North Western provinces, were only covered by two and three teamsrespectively. Luapula Province, which is the main Patriotic Front stronghold, was observed onlyby two teams. Northern Province, where the competition was expected to be fierce among thetwo main candidates, was covered by only four teams. All these areas should ideally have beenreached by internal flights. In order to secure a rational deployment for the seven constituencies

of Lusaka, a precise itinerary, together with maps of the capital provided by the E

Documents

EU EEM Final Report - 2008-10-30