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Project Motivation 

Zambia has witnessed a rise in the number of contested elections arising from disputed election results in the last decade. Elections have been hotly contested leading, in some cases, to violent demonstrations that resulted in loss of life. In addition, the country has also seen an increase in presidential election outcomes being determined by the courts of law, as was the case in 1996, 2001, and 2016. Losing candidates have turned to the courts seeking redress on what they believe are stolen elections. Although no presidential election petition has succeeded, some parliamentary petitions have succeeded but many have also failed. The first Presidential petition in Zambia was filed in 1996 in the case Akashambatwa Mbikusita and Others v. Frederick Jacob Titus Chiluba[1]. This was was dismissed for being frivolous and not supported by evidence. The second petition related the 2001 presidential election, reflected in the case of Anderson Kambela Mazoka and Others v. Levy Patrick Mwanawasa and Others[2]. The court declared Levy Mwanawasa duly and validly elected as President. It noted in its judgement that elections, while not being totally perfect, were substantially in conformity with law and practice. Following the 2016 Presidential election opposition leader Hichilema challenged the outcome of the election in Hichilema and Another v Lungu and Another (2016/CC/0031) [2016] ZMCC 4 (5 September 2016), however the petition was dismissed on technicalities as the court ruled that the 14 legal days stipulated by the constitution had expired before the petition was finally determined. The pattern emerging from these petitions is that they are always, with exception of a few, dismissed for lack of evidence and/or on procedural grounds. Petitions are often half backed, not supported by evidence of malfeasance and in some cases not properly brought/filed before the courts. This points to the inability of political parties and their legal teams to put in place robust oversight mechanisms of the electoral process that assists in the collection of evidence to prove electoral malfeasance. More disturbing, it points to the inability of political parties to provide competent court challenges when provided with the opportunity to do so. This raises questions on the capacity of political parties to establish and manage the operational structures required to allow for the timely codification, transmission, treatment, and analysis of all information collected by their agents in the field to support election petitions.

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It is still, however, not clear to what extent the judiciary is captured when it comes to deciding on election petitions as they do not exist a mechanism to track election disputes adjudication and whether it meets international and regional standards on electoral dispute resolution. In this respect, it is important to analyse the practice of the election administration and the judiciary in dealing with electoral disputes, which will promote correct perception of individual norms and illustrate possible shortcomings that may arise in terms of applying these norms or introducing them in practice.  It should also be acknowledged that the high number of election petitions filed over the years points to either a flawed electoral process or to a system that allows for redress to electoral disputes.

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Indications so far point to a hotly contested 2021 election marred by election disputes. The credibility of the 2021 elections will be shaped largely by the pre- and post-elections conflict management processes and how these are disposed of by both formal and informal dispute resolution mechanisms in the county. It goes without question that the effective resolution of electoral complaints is integral for the integrity and legitimacy of an election. If not handled properly, election claims and disputes can destabilize the country, undermine public trust, and lead to violence. However, the credibility of the electoral process can be strengthened if the laws and procedures that govern dispute resolution are coherent, enforceable, and provide access to effective remedies.

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