Lawyer and politician Mr. Sakwiba Sikota SC (State Counsel), was quoted by the Smart Eagles Facebook page stating that the Electoral Commission of Zambia’s (ECZ) guidance relating to independent candidates’ affiliation to political parties was wrong. In response, the ECZ issued a statement reminding all independent candidates for the forthcoming General Election that independent candidates should not be affiliated to any political party. In line with the legal requirements, all independent candidates should have relinquished political party membership “at least two months immediately before the date of the election.” To this end, independent candidates were advised to desist from using campaign materials for political parties or in any way identify themselves with any political party. In case of a breach, the Commission promised to take appropriate action including disqualification of erring candidates. The article further states that according to Mr. Sikota, if ECZ is to bar any of the independents, who have relinquished party membership, for encouraging their supporters to show their liking of a political party’s presidential candidate, they may find themselves sued. He cited Articles 20 (Freedom of Expression) and article 21(Freedom of Assembly and Association) of the constitution of Zambia to prove that independent candidates have the right to participate and have an effect on the election. In what he refers to as the Livingstone 2006 effect, Mr. Sikota, an eminent lawyer in Zambia of nearly forty years standing at the bar and experienced in both civil and criminal litigation, claims that he was on the same campaign platforms as other political party leaders who would be clad in their own regalia whilst he was always in United Liberal Party (ULP) campaign material. He further alludes that in 2008 and 2011 he enjoyed his rights under Articles 20 and 21 of the Constitution and no one, including the Electoral Commission of Zambia, suggested in 2008 that he had been in breach and should lose his seat. He adds that the protections given under articles 20 and 21 cannot be diluted by other provisions of the Constitution or acts of parliament as they are entrenched rights « rights which are explicitly protected by the Constitution, they have a special status and are immune from change by political whims through legislation. In order to change them, a Constitutional Amendment is required »
The claim by Mr. Sakwiba Sikota that ECZ guidance to independent candidates is wrong, as reported on Smart Eagles, is inconclusive. An observation made by iVerify showed that the statement made by ECZ is a word for word quote of the Constitution of Zambia. The ECZ further goes on to interpret this guidance of independent candidates to necessary stakeholders. In reference to article 20 which states, “(1) except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence”, the statement by ECZ does not stop independent candidates from holding opinions or enjoying their freedom of expression. The statement by ECZ in turn advises independent candidates to desist from using campaign materials for political parties or in any way identify themselves with any political party as they are contesting based on independent candidacy. Furthermore, in relation to article 21 of the constitution of Zambia on freedom of assembly and association, which states that “except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to any political party, trade union or other association for the protection of his interests”, the statement by ECZ again does not stop independent candidates from assembling or associating. Instead, the statement warns against “affiliation” which is as guided by the Zambian Constitution. Another observation made by the iVerify team relates to the fact that Mr. Sakwiba Sikota says to have been running under the United Liberial Party for the 2006 Livingstone Parliamentary Race, while in 2008 and 2011, he was on the same campaign platform as Rupiah Banda all around the country. Rupiah Banda would wear the Movement for Multipary Democracy (MMD) attire and Mr Sikota would adorn himself in the ULP campaign regalia. This observation implies that Mr. Sikota did not contest as an independent candidate but under the United Liberal Party, therefore not breaching any law as this article of independent candidates in the Zambian constitution as well as ECZ’s recent statement does not apply to him. The example he gave in the article can therefore be considered misleading to independent candidates. However, in a call made by iVerify to Mr. Sakwiba Sikota, he stated that he disagreed with the guidelines issued by ECZ, arguing that the ECZ statement is not supported by the Constitution. According to him, articles 20 and 21 of the Zambia Constitution are included in part 3, which make them supreme over other parts of the constitution as they are entrenched provisions. He continued that, even if there was an article amended in the constitution which then would touch upon the rights which are protected in part 3, those amended articles would not have an effect because part 3 can only be changed after a referendum and other requirements. Therefore, in the event that ECZ was to disqualify candidates, Mr. Sikota stated that candidates would be able to sue on the basis of articles 20 and 21. He emphasized that the Constitution cannot contradict itself; the Constitution incorporates a self-correcting mechanism as part 3 overrides seemingly contradictory positions, thus ensuring that there is no contradiction in the constitution. In conclusion, iVerify rates this justification as inconclusive as it is ultimately up to the courts of law to determine whether the statement issued by ECZ is is in line with the Constitution or contradictory and infringing on entrenched rights.