The right of prisoners to vote under current Zambian Law

The right of prisoners to vote under current Zambian Law

Prior to the 2016 amendment to the Constitution of Zambia, the Constitution permitted Parliament to pass legislation that disqualified prisoners from voting in an election. This was particularly provided for in Article 75 of the Constitution as amended in 1996. The said provision enacted as follows:

“75. (1) Every citizen of Zambia who has attained the age of eighteen years  shall, unless he is disqualified by  Parliament from registration as a voter  for the purposes of elections to the  National Assembly, be entitled to be  registered as such a voter under a law  in that behalf, and no other person  may be so registered.

(2) Every person who is registered in any constituency as a voter for the  purposes of elections to the National  Assembly shall, unless he is disqualified by Parliament from voting  in such elections on the grounds of his  having been convicted of an offence in  connection with elections or, on the  grounds of his having been reported guilty of such an offence by the court  trying an election petition or, on the  grounds of his being in lawful custody  at the date of the election, be entitled so to vote in that constituency in  accordance with the provisions made  by or under an Act of Parliament, and  no other person may so vote."

Pursuant to the above Constitutional provision, Parliament did in fact pass legislation that disfranchised prisoners. For example, the Electoral Act No. 12 of 2006 in Sections 7 (1) (e)-(f) and 19 (c) enacted that:

"7. (1) No person shall be qualified for registration as a voter, and no person shall be registered as a voter, who—

(e) is disqualified from voting under section nineteen;

(f) is under sentence of death imposed by any court in Zambia, or a sentence of imprisonment imposed by such a court or substituted by any competent authority for some other sentence imposed by such a court..."

"19. No person shall be entitled to vote at a direct election who—

(c) at the date of the election is in lawful custody or the person’s freedom of movement is restricted under any law in force in Zambia."

The above provisions fortified the Constitutional provision which disfranchised prisoners. However, 20 years later after  the 1996 amendment to the Constitution by Act No. 2 of 2016, a significant reform occurred. Article 75 considered above was among the provisions of the 1991 Constitution as amended in 1996 that was repealed and replaced with a new provision. The successor of what was then Article 75 became Article 46 of the Constitution as amended in 2016. The latter provision provides as follows:

"46. A citizen who has attained the age of eighteen years is entitled to be registered as a voter and vote in an election by secret ballot."

It is clear that unlike its predecessor, Article 46 of the Constitution does not disfranchise prisoners neither does it expressly permit Parliament to pass legislation disfranchising prisoners.

Curiously however, side by side with the 2016 Amendment to the Constitution, the Electoral Act 2006 was also repealed and replaced by a new Act called the Electoral Process Act No. 35 of 2016.

Whereas the Constitution itself had since dropped the disqualification of prisoners from voting, the new Electoral Process Act like its predecessor, purported to continue to disfranchise prisoners. In particular terms, Section 9 (1) (e) as read together with Section 47 of the Electoral Process Act enacts as follows:

"9. (1) The Commission shall not register a person as a voter if that person

(e) is disqualified from voting under section  forty-seven;

(f)  is under a sentence of death imposed by a competent court, or a sentence of imprisonment imposed by a court or substituted by a competent authority for some other sentence imposed by that court...".

"47. A person shall not be entitled to vote at an election if, at the date of the election, that person is in lawful custody or the person’s freedom of movement is restricted under any written law."

It can be noted from the foregoing that Parliament appears to have re-enacted the voting disqualification under the Electoral Act 2006 overlooking the fact that the Constitutional basis upon which it had the power to disfranchise prisoners had actually since ceased being part of Zambia's Constitutional Order.

The conflict between Article 45 of the Constitution as amended in 2016 and Section 9 (1) (e) as read together with Section 47 of the Electoral Act 2016 became obvious. It being settled law that the Constitution is the supreme law of the land and any law inconsistent with it is void to the extent of that law's inconsistency, the fate of Section 9 (1) (e) as read together with Section 47 of the Electoral Act 2016 was already sealed: Both had to be expunged from the Zambian statute book.

The Constitutional Court was called upon to pronounce itself on the above state of affairs. This was in the case of Godfrey Malembeka (Suing as Executive Director of Prison Care and Counselling  Association) v Attorney-General and Electoral Commission of Zambia Selected  Judgment No. 34 of 2017.

On the 29^th July, 2016, the Petitioner sought a number of reliefs from the Court. Among them were the following:

(a) A declaration that Sections 8 and 9 (1) (e) as read with Section 47 of the Electoral Process Act No. 35 of 2016 contravene Article 45 (1) (a), (b) and (c) and Article 46 of the Constitution of Zambia (Amendment) Act No. 2 of 2016 and must be expunged from the statute book.

(b) A declaration that all remandees and pre-trial remandees and convicts whose cases are on appeal and are unable to procure bail and or are not admitted to bail be allowed to vote in any election.

(c) A declaration that for the purposes of pre-trial remandees to exercise their right to vote all prisons in Zambia be made polling centres.

(d) A declaration that a continued denial of pre-trial remandees and convicts on appeal of their convictions and sentences to vote offends their constitutional rights as enshrined in Articles 18 (2) (a), 23 (1), 45 (1) (a), (b) and (c) and 46.

Both the Attorney-General  and the Electoral Commission of Zambia did not oppose the petition. Contending only that prisoners be permitted to vote in future elections as by the time of the petition, voter registration had since closed and to reopen the same was bound to affect the general election date (August 11, 2016) which was itself prescribed by Constitution.

The Constitutional Court held (among other things) that:

(a) As no provision was made in Article 46 allowing for Parliament to disqualify persons in lawful custody from registering as voters and from voting in an election, the Court held that Sections 9 (1) (e) and 47 of the Electoral Process Act, No. 35 of 2016 contravene Article 46 of the Constitution as amended and are, thus, void. The Court, therefore, granted the declaration that Section 9 (1) (e) and 47 of the Act contravene Article 46 of the Constitution as amended and are void and should be expunged from the statute book.

(b) Persons in lawful custody and those whose freedom of movement is restricted under a written law are entitled to vote in future elections.

(c) The Court declined to grant the prescriptive declaration that all prisons be made polling centres as prayed. Instead, it ordered that the Electoral Commission should take all necessary measures to enable persons in lawful custody to vote.

(d) The Court declined too to pronounce itself on Bill of Rights matters raised as Article 28 as read together with Article 128 of the Constitution grants the High Court jurisdiction to hear and determine such matters.