ELECTORAL PROCESS ACT

to provide for a comprehensive process for a general election; provide for the conduct of elections by the Electoral Commission of Zambia and empower the Commission to make regulations in matters relating to elections; provide for the registration of voters and the keeping of voters registers; prescribe the procedures for nominations for elections; provide for the role of presiding officers, election officers and conflict management officers; prescribe the procedure for voting during an election; provide for the accreditation and roles of observers and monitors; criminalise corrupt practices and other illegal practices related to elections and provide for penalties in connection with an election; provide for election petitions and the hearing and determination of applications relating to a general election; provide for voter education; prescribe the electoral code of conduct; repeal and replace the Electoral Act, 2006; and provide for matters connected with, or incidental to, the foregoing.

[7th June, 2016]

Act 35 of 2016,

Act 32 of 2021.

PART I
PRELIMINARY PROVISIONS

1. Short title

This Act may be cited as the Electoral Process Act.

2. Interpretation

In this Act, unless the context otherwise requires-

"area" has the meaning assigned to it in section 2 of the Local Government Act;

"ballot box" means a box prescribed by the Commission for the purpose of an election;

"ballot paper" means the document prescribed by the Commission in respect of an election;

"ballot paper account" means a document prescribed by the Commission for purposes of recording the ballot papers issued to a returning officer and completed by a presiding officer at the close of a poll;

"by-election" has the meaning assigned to it in the Constitution;

"campaign material" means party or candidate manifestos, advertisements, billboards, posters, T-shirts, cloth or other material depicting colours regarding symbols, and other designs of a party or pictural images of a candidate;

"campaign period" means a period of three months before the holding of an election;

"candidate" means a person contesting a presidential, parliamentary or local government election;

"caricature" means the exaggerated imitation of a cartoon, effigy, picture, drawing or sketch of a person or literary style for comic or satirical effect;

"casual vacancy" means a vacancy in the office of councillor as specified in the Local Government Act;

"Chief Electoral Officer" has the meaning assigned to it in the Electoral Commission of Zambia Act;

"Code" means the Electoral Code of Conduct set out in the Schedule;

"Commission" means the Electoral Commission of Zambia established by the Constitution;

"conflict management officer" means an officer appointed as a conflict management officer in accordance with section 113;

"constituency" has the meaning assigned to it in the Constitution;

"Constitutional Court" has the meaning assigned to it in the Constitution;

"correctional centre" has the meaning assigned to the words in the Zambia Correctional Service Act;

[Ins by s 2 of Act 32 of 2021.]

"correctional officer" has the meaning assigned to the words in the Zambia Correctional Service Act;

[Ins by s 2 of Act 32 of 2021.]

"corrupt practice" means any conduct which is declared to be a corrupt practice in accordance with section 81;

"costs" includes charges and expenses;

"council" has the meaning assigned to it in the Constitution;

"council chairperson" has the meaning assigned to it in the Constitution;

"councillor" has the meaning assigned to it in the Constitution;

"designated person" means a person or officer appointed by the Chief Justice for the purpose of receiving election petitions filed before a tribunal and attending to such other matters regarding petitions before a tribunal as are assigned to the Registrar under this Act;

"election" has the meaning assigned to it in the Constitution;

"election agent" means a person appointed as an agent of a candidate for the purpose of an election and who is specified in the candidate's nomination paper;

"election officer" means a person appointed by the Commission as-

(a) a registration officer;

(b) an assistant registration officer;

(d) a returning officer;

(e) a presiding officer;

(f) an assistant presiding officer; or

(g) a polling assistant,

and includes a person appointed to assist the Chief Electoral Officer in the performance of the functions of the Chief Electoral Officer as specified in this Act;

"election petition" means an election petition related to a presidential, parliamentary or local government election as specified in the Constitution;

"election timetable" means a timetable for an election published by the Commission in accordance with section 28;

"employee" has the meaning assigned to it in section 2 of the Local Government Act;

"general election" has the meaning assigned to it in the Constitution;

"illegal practice" means an offence which is declared under this Act to be an illegal practice;

"inmate" has the meaning assigned to the word in the Zambia Correctional Service Act;

[Ins by s 2 of Act 32 of 2021.]

"interim period" means the period commencing at the commencement of this Act and expiring on such date as the President may prescribe by statutory order;

"legally disqualified" means the absence of legal capacity as provided in section 4 of the Mental Health Act;

[Ins by s 2 of Act 32 of 2021.]

"media" includes publicly or privately operated print and electronic media;

"Member of Parliament" has the meaning assigned to it in the Constitution;

"monitor" means a person accredited as such by the Commission;

"national registration card" means a national registration card issued under and in terms of the National Registration Act;

"national registration number" means the serial number inserted on a national registration card issued in accordance with the National Registration Act;

"nomination centre" means a place prescribed by the Commission as a nominating office;

"nomination day" means the day appointed by the Commission as the day on which a candidate files that candidate's nomination paper with the Commission;

"nomination paper" means a document prescribed by the Commission for the purpose of a candidate registering that candidate's intention to contest an election under this Act;

"observer" means a person accredited as such by the Commission;

"officer-in-charge" has the meaning assigned to the word in the Zambia Correctional Service Act;

[Ins by s 2 of Act 32 of 2021.]

"petitioner" in relation to an election petition, means a person who signs and presents an election petition under section 98, and includes a person substituted for a petitioner;

"political party" has the meaning assigned to it in the Constitution;

"polling agent" means an agent appointed by a candidate in respect of a polling station;

"polling assistant" means a person appointed as polling assistant by the Commission;

"polling day" means-

(a) in relation to a general election, the day specified in accordance with the Constitution for the taking of the poll in a general election; and

(b) in relation to a by-election, a day appointed by the Commission for the taking of the poll in a by-election;

"polling district" means a district established by the Commission as a polling district under section 21;

"polling station" means a place established as a polling station by the Commission under section 24;

"presidential election" has the meaning assigned to it in the Constitution;

"presiding officer" means a person appointed as a presiding officer by the Commission under section 37;

"prison" has the meaning assigned to the word in the Zambia Correctional Service Act;

[Ins by s 2 of Act 32 of 2021.]

"public officer" has the meaning assigned to it in the Constitution;

"Register of Voters" means the Register of Voters prepared and certified by the Commission under section 14;

"registration officer" means a person appointed as a registration officer by the Commission;

"Registrar" means the Chief Registrar of the High Court, and includes the Deputy Registrar, District Registrar and Assistant Registrar;

"respondent" means a person against whom an election petition is filed in accordance with section 98;

"Returning Officer" has the meaning assigned to it in the Constitution;* has the meaning assigned to it in the Constitution;

"State institution" has the meaning assigned to the words in the Constitution;

[Ins by s 2 of Act 32 of 2021.]

"traditional leader" means a paramount chief, senior chief, chief or village headman;

"tribunal" means a local government elections tribunal established in accordance with Article 159 of the Constitution;

"voter" means a person who is registered as a voter and whose name appears in the Register of Voters;

"voter's card" means a voter's card prescribed and issued by the Commission; and

"ward" means any of the divisions into which a council area is divided under section 25.

3. Principles of electoral system and process

Subject to the Constitution, the principles applied in the electoral system and process shall ensure the following-

(a) equal and universal suffrage;

(b) no discrimination based on gender or disability when providing electoral services;

(d) no special privileges accorded to a political party or social group, except for persons with special needs;

(e) no impediments to lawful inclusion in the electoral register;

(f) impartial voter-education programmes;

(g) access to polling stations for representatives of political parties, accredited local or international election monitors, observers and the media;

(h) secrecy of the vote;

(i) design of the ballot paper that promotes easy use;

(f) transparent and secure ballot boxes;

(k) impartial assistance to voters at the polling station;

(l) transparent, accurate and reliable vote counting procedure;

(m) proper management of invalid ballot papers;

(n) precautionary measures for transporting of election materials;

(o) impartial protection of polling stations;

(p) established procedures for lodging and dealing with complaints;

(q) impartial handling of election complaints;

(r) impartial delimitation of electoral boundaries; and

(s) timely resolution of electoral disputes.

4. Administration, enforcement and prosecution

(1) This Act shall be administered and enforced by the Commission and the Commission shall not be subject to the direction or control of any person or authority in the exercise of its functions under the Constitution and this Act.

(2) The Commission shall, in order to ensure compliance with the provisions of this Act, appoint such number of officers as it may consider necessary for purposes of this Act.

(3) An officer appointed pursuant to sub-section (2) shall be provided with a letter of appointment which shall be prima facie evidence of that person's appointment.

(4) An officer shall, on demand by a person affected by the exercise of the powers of that officer under this Act, produce for inspection the letter referred to in sub-section (3).

(5) The Anti-Corruption Commission shall investigate and prosecute any corrupt practice committed under this Act in accordance with the Anti-Corruption Act.

(6) The Zambia Police Service shall enforce law and order at polling stations and undertake any criminal proceedings, subject to sub-section (2), in respect of an offence committed by any person in contravention of this Act.

5. Delegation of powers and duties by Commission

(1) The Commission may-

(a) delegate any of its powers under this Act to a member, employee or officer of the Commission excluding the power to prescribe anything under this Act or make an appointment under this Act or any other written law; and

(b) instruct a member, employee or officer of the Commission to perform any of its duties under this Act or any other written law.

(2) A delegation or instruction made under sub-section (1)-

(a) shall be subject to any limitations and conditions that the Commission may impose; and

(b) does not prevent the Commission from exercising or performing the assigned power or duty.

(3) The Commission may, by statutory order, confer powers or impose duties on an officer or authority of the Government or council for the purpose of discharging its functions under this Act.

6. Delegation of powers and duties by Chief Electoral Officer

(1) The Chief Electoral Officer may-

(a) delegate any of the powers of the Chief Electoral Officer under this Act or any other law to an employee or officer of the Commission; or

(b) instruct an employee or officer of the Commission to perform any of the duties of the Chief Electoral Officer under this Act or any other written law.

(2) Sub-section (2) of section 5 with the necessary modification, shall apply to a delegation or instruction of the Chief Electoral Officer under sub-section (1).

PART II
REGISTRATION OF VOTERS AND REGISTERS

7. Continuous voter registration

The Commission shall conduct a continuous registration of voters.

8. Qualification for registration as voter

(1) A person qualifies for registration as a voter if that person-

(a) is a citizen of Zambia;

(b) has attained the age of 18 years; and

(2) The Commission shall register a person as a voter as prescribed.

(3) A person who has been registered in the Register of Voters shall be issued with a voter's card.

(4) A person shall not register as a voter in more than one constituency.

9. Disqualification from registration as voter

The Commission shall not register a person as a voter if that person is-

(a) not a citizen;

(b) not in possession of a national registration card; or

[S 9 subs by s 3 of Act 32 of 2021.]

10. De-registration of voter

A registration officer shall de-register a voter if the registration officer is satisfied that the voter-

(a) does not qualify to be registered as a voter;

(b) no longer meets the qualifications for registration as specified in section 8;

(d) obtained the registration through submission of false information or making of a misleading statement.

11. Notification by registration officer

(1) A registration officer shall notify a person-

(a) whose registration as a voter has been refused;

(b) whose application to have a change of name or ordinary place of residence recorded has been refused;

(d) whose registration details have been changed.

(2) A notification given under sub-section (1) shall give reasons for the refusal or action taken.

12. Suspension of registration of voters

(1) The Commission may suspend the registration of voters whenever an election is due for the purposes of the conduct of the election.

(2) The Commission shall, where it prescribes the polling day for a by-election, immediately suspend the registration of voters in the district in which the by-election is to take place until the by-election is concluded.

13. Provisional Register of Voters

(1) The Commission shall establish a Provisional Register of Voters as prescribed.

(2) The Provisional Register of Voters shall include the details of persons entitled to vote in an election or referendum under this Act or the Referendum Act.

14. Register of Voters

(1) The Commission shall compile and maintain the Register of Voters as prescribed.

(2) The Register of Voters shall include the details of persons entitled to vote in an election or referendum under this Act or the Referendum Act.

(3) The Register of Voters shall not preclude any person from voting in a referendum in accordance with the Constitution.

15. Application to change registration details

A voter whose name or ordinary place of residence has changed may apply, in the prescribed manner, to have that change recorded in the Register of Voters, except that a person shall not apply when a change of name is due to change in marital status.

16. Amendments to Register of Voters

(1) A registration officer shall-

(a) change the registration details of a voter if the registration officer is satisfied that the details of a voter as reflected in the Register of Voters are incorrect or have changed;

(b) add the name and other particulars of a voter resulting from a new registration, as prescribed; or

(2) A registration officer shall record, in the Register of Voters, a change in a polling district for which a person is registered as a voter if that person's place of ordinary residence after a change in the boundaries of the polling district falls in another polling district.

17. Objections concerning details in Provisional Register of Voters

(1) A person whose name appears in the Provisional Register of Voters may object to an error or omission regarding the person's details, in the prescribed manner, within 90 day's of the publication of the Provisional Register of Voters.

(2) A person may object to an error or omission to the exclusion or regarding the registration details of another person.

(3) A person who objects to another person's registration details shall serve notice of the objection on that person.

(4) The Commission shall consider an objection to the Provisional Register of Voters within 14 days from the date the objection was made and shall notify the person who made the objection and the registration officer.

(5) A registration officer shall give effect to a decision of the Commission, made under this section, within three days of the decision.

18. Publication of Register of Voters

(1) A copy of the Register of Voters, as it exists at any time, shall be available for inspection during office hours at the Commission's head office.

(2) A person who requires a copy or extract of the Register of Voters may, upon payment of a prescribed fee, obtain the copy or extract which shall be certified by the Chief Electoral Officer.

(3) A document purporting to be a copy or extract of the Register of Voters, which is duly certified by the Chief Electoral Officer, shall be received in evidence in any legal proceedings as to the matters stated in the Register of Voters.

19. Inspection of Register of Voters before election

(1) The Register of Voters or the segments of the Register of Voters that shall be used for an election shall be the register certified for the purposes of that election.

(2) The Chief Electoral Officer shall certify the Register of Voters, or segments of the Register of Voters, and publish the Register of Voters or the segments of the Register of Voters and make the Register of Voters or the segments of the Register of Voters available for inspection at the following venues-

(a) at the Commission's head office;

(b) at the polling station in each polling district; and

20. Cut-off dates for registration of voters and Register of Voters

The Commission may prescribe cut-off dates with respect to the registration of voters and the compilation of the Register of Voters, including the date by which-

(a) a person may apply to be registered as a voter or change the person's registration details;

(b) a registration officer shall give notice of the venue and dates on which the Provisional Register of Voters may be inspected;

(c) the Commission shall consider an objection made under section 17 and notify the objector and the registration officer and a person other than the objector whose name or registration details are involved; and

(d) a registration officer shall complete the compilation of the Register of Voters and publish it.

PART III
POLLING DISTRICTS AND BOUNDARIES

21. Establishment of polling districts

(1) The Commission shall-

(a) establish polling districts for the whole of the territory of the Republic;

(b) determine the boundaries of each polling district in accordance with the criteria provided in section 22; and

(2) The polling districts for an election shall be those polling districts which, on the date on which an election is called, are within the area in which the election is called.

22. Criteria for determining polling district boundaries

The Commission shall determine the boundaries of a polling district by taking into account any factor within the proposed polling districts that could affect the free, fair and orderly conduct of elections, including-

(a) the availability of a suitable venue for a polling station;

(b) the number and distribution of eligible voters;

(i) the radius of the proposed polling district;

(ii) the availability of transport;

(iii) telecommunications facilities; and

(iv) any geographical or physical feature that may impede access to the polling station;

(d) district and provincial boundaries; and

(e) cultural diversity.

23. Inspection and copies of maps of polling district

(1) As soon as practicable after the polling districts have been established, the Chief Electoral Officer shall give notice that copies of the map of each polling district are available for inspection.

(2) The notice referred to in sub-section (1) shall be published in the Gazette and publicised in the media so as to ensure wide publicity of the maps.

(3) The notice shall state, and the Chief Electoral Officer shall ensure, that copies of-

(a) the maps are available for inspection at the Commission's head office; and

(b) the maps of the polling districts are available for inspection at the office of the person administering the district.

(4) A person may inspect a copy of a map provided for in sub-section (1).

(5) The Chief Electoral Officer shall provide a certified copy of a map of a polling district to any person who pays the prescribed fee for that purpose.

24. Establishment of polling station

(1) The Commission shall establish a polling station for an election, in each polling district, as the Commission may prescribe.

(2) The Commission shall, when determining the location of a polling station, take into account any factor that could affect the free, fair and orderly conduct of elections, including-

(a) the number and distribution of eligible voters in the polling districts;

(b) the availability of suitable venues for polling stations;

(d) access routes to the polling station;

(e) the availability of transport to the polling station;

(f) traffic density at or near the polling station;

(g) telecommunications facilities at the polling station;

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