Nullification of election in Zambia: A critical analysis of required statutory grounds in an election petition.

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Chungu, Sula
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The University of Zambia
Electoral malpractice is a contentious issue in a democratic state like Zambia. This is so because free and fair elections are an important tenant of a democracy. This research was aimed at investigated the effectiveness of the statutory grounds of proof for nullifying an election on grounds of electoral malpractice. Qualitative research methods were employed during this research. The data relied upon consisted of primary data, namely statute and case law and secondary data consisting of scholarly articles and other related literature. In order to achieve the aforementioned aim of this investigation an examination of the electoral systems which are applied in the world was undertaken in order to establish the extent to which the electoral systems are susceptible to electoral malpractice. This research also assessed the legal and institutional framework of Zambia’s electoral system establishing the extent the legal framework promotes the curbing of electoral malpractice. After the investigation this research discovered that the first past the post system that is practised in Zambia is highly susceptible to electoral malpractice and this implied that the legal framework which provides regulations for this electoral system has to extensively protect the electoral system. This research also found that the required statutory ground that electoral malpractice affected the majority of voters from voting for the preferred candidate was enacted to protect the electoral system. However, due to the fact that the electoral system in Zambia entails that a parliamentary election candidate can win an election by a minority the statutory ground is dangerous to the electoral system because an affected minority of voters can change an outcome of an election. Agency in election campaigns was of relevance to this research. This research discovered that the court in Zambia follows the law of agency strictly. However, in a plural political system like Zambia political parties campaign for their candidates hence candidates may use the defence of party members not being their agents to avoid liability. Adducing evidence in election petitions has had a major impact on proving the required statutory grounds. The standard of proof in election petitions is higher than a balance of probabilities and taking into consideration the factual nature of elections the rules of evidence make it difficult for the petitioner to attain such a high standard and hence even though elections are marred with malpractice the election cannot be nullified. This research recommends that; The Electoral Commission of Zambia as mechanism of enforcement of electoral regulations must be given power to punishment those who commit electoral malpractice; the scope of agency with regards election must be enlarged to carter for the electoral and political system. For purposes of deterrence of electoral malpractice so as to have political parties discipline their members from committing electoral malpractice.