With Zambia’s elections now concluded and results declared, attention turns to the legal processes that may follow where electoral outcomes are challenged. Election petitions form an important part of Zambia’s constitutional and democratic framework, providing a mechanism through which eligible parties can challenge the validity of an election and seek judicial review of the electoral process.

Election petitions are an important safeguard against electoral malpractice, but they are not a means of revisiting every irregularity that may occur during an election. The courts have consistently emphasised that an election will not be overturned simply because procedural breaches or acts of misconduct are established. The nature and impact of the irregularity, and whether it affected the outcome of the election, remain critical considerations.

This article examines the legal framework governing election petitions in Zambia, including who may bring a petition, the grounds on which an election may be challenged, the applicable procedures and timelines, and the evidentiary threshold that must be met for a petition to succeed. It also considers the approach taken by the courts when balancing proven electoral irregularities against the expressed will of the electorate.

The Legal Framework

Election petitions in Zambia are primarily governed by the Electoral Process Act No. 35 of 2016 (EPA), which sets out the requirements and grounds upon which an election may be challenged.

Key provisions include:

Timeframe
An election petition must be filed within 14 days of the declaration of election results.

Who may file a petition?
A petition may be brought by:

• A registered voter;
• An eligible nominee;
• A candidate who contested the election; or
• The Attorney General.

Grounds for nullification
An election may be challenged on the basis that:

1. The winning candidate, or their agent, engaged in misconduct that hindered, or may have hindered, the majority of voters in exercising their free choice;
2. There were procedural irregularities that affected the outcome of the election; or
3. The successful candidate was constitutionally ineligible to contest the election under Article 70 of the Constitution of Zambia.

Judicial Interpretation: The Threshold for Success

While election petitions provide an important avenue for accountability, the courts have consistently maintained a high threshold before an election result will be overturned.

In Nkandu Luo & Electoral Commission of Zambia v Doreen Sefuke Mwamba (2018) and Charles Abel Mulenga v Joseph Malanji (2021), the courts clarified the evidentiary requirements necessary to succeed with an election petition.

The key principles emerging from these decisions are:

Misconduct
Allegations of misconduct must demonstrate that:

• The misconduct was sufficiently widespread;
• It was directly attributable to the candidate or their agent; and
• It was capable of influencing the majority of voters.

Procedural irregularities
Not every administrative error or procedural deviation will invalidate an election. The irregularity must involve a material breach of the law and must be shown to have affected the election result.

Eligibility
A challenge based on eligibility requires proof that the elected candidate was constitutionally disqualified from holding office at the time of election.

The Burden of Proof: Evidence Over Suspicion

Election petitions carry a significant evidentiary burden. While the standard is not the criminal standard of “beyond reasonable doubt”, courts require more than mere allegations, suspicion or isolated incidents. Petitioners must present evidence with a high degree of convincing clarity.

The decision in Charles Abel Mulenga v Joseph Malanji demonstrates this approach. Although evidence of vote-buying was established in three wards, the affected voter population (29,860 voters) did not exceed the majority threshold required to demonstrate that the misconduct had altered the overall outcome of the election (32,073 voters).

The court acknowledged the existence of unlawful conduct but found that the misconduct was not sufficiently extensive to justify nullifying the election. The principle was clear: individual acts of lawlessness, while serious, do not automatically amount to a failure of the democratic will of the majority.

Key Takeaways

Election petitions remain an essential mechanism for protecting electoral integrity and ensuring accountability. However, they are not intended to provide a second opportunity to contest an election outcome based on speculation or isolated complaints.

The courts have consistently reaffirmed three fundamental principles:

• Lawlessness matters only where it undermines the majority’s choice.
• Evidence, not suspicion, determines the outcome of an election petition.
• The will of the electorate remains paramount unless convincingly proven otherwise.

As Zambia continues to strengthen its democratic institutions, the courts will remain central in balancing two important principles: holding electoral misconduct accountable while preserving the legitimacy of the people’s vote.