By Daily Revelation Editor
We have carefully read the statement and watched the video of the briefing where the ECZ chairperson Mwangala Zaloumis insisted on the Commission’s decision to ban party regalia from non participating political parties.
Zaloumis said the decision was based on sections 29 and 89 of the Electoral Process Act (2016).
Having interrogated the matter further to our previous editorial, we have come up with this new more informed position.
In insisting on the decision made Zaloumis said “providing guidance on how an election ought to be conducted is within the mandate of the Commission, and can never be a “misguidance and illegal act”.” This is premised on its constitution mandate as per article 229: below is what the Article states.
- (1) There is established the Electoral Commission of
Zambia which shall have offices in Provinces and progressively in
districts.
(2) The Electoral Commission shall—
(a) implement the electoral process;
(b) conduct elections and referenda;
(c) register voters;
(d) settle minor electoral disputes, as prescribed;
(e) regulate the conduct of voters and candidates;
(f) accredit observers and election agents, as prescribed;
(g) delimit electoral boundaries; and
(h) perform such other functions as prescribed.
Article 229(2) mandates the Electoral Commission of Zambia (ECZ) to “implement the electoral process” and “regulate the conduct of voters and candidates.”
However, the Commission’s regulatory authority is explicitly directed towards candidates and voters participating in an election.
The Constitution does not expressly empower ECZ to regulate the conduct or political expression of political parties or citizens not contesting an election, or Alliances and their affiliates who are exercising freedoms of association and expression, provided they are not disrupting public order.
By extending its restriction to “campaign materials” from non-contesting parties or alliance members, ECZ arguably exceeds its constitutional mandate, since these groups are not “candidates” or “voters” per se.
This is also a conflict with constitutional rights, Articles 20 and 21 guarantee Freedom of Expression (Article 20), including political speech and the right to impart and receive ideas. Freedom of Association (Article 21), including forming or joining political parties or alliances.
While these freedoms can be limited in the interests of public order, morality, or national security, any restriction must be prescribed by law (i.e. found in statute, not just administrative guidance), and necessary and proportionate to achieve a legitimate aim.
- Misinterpretation of Section 29 (3)
Section 29(3) states:
“A candidate or political party may, during an electoral campaign, publish or distribute campaign materials of such a nature and in such a manner as may be prescribed by the Commission.”
The above clause gives the Commission the power to prescribe the manner of distributing campaign materials, but it does not prohibit other political parties (not contesting) from displaying regalia, provided such regalia is not used to solicit votes for a specific candidate unlawfully.
The Act explicitly defines “campaign materials” (Section 2) as party/candidate symbols, colours, designs, or images, but nowhere does it restrict their use solely to contesting parties or candidates.
Section 29(4) further clarifies that campaign messages are about promoting ideas and policies for purposes of obtaining votes. If an alliance member is merely showing affiliation, this activity falls under freedom of association and expression, not regulated campaign solicitation.
- treatment to candidates.
(1) A public officer and public entity shall give equal
(2) A candidate and political party has the right to have the content of the candidate’s or political party’s campaign message reported in public media in a fair and balanced manner.
(3) A candidate or political party may, during an electoral
campaign, publish or distribute campaign materials of such a nature
and in such a manner as may be prescribed by the Commission.
(4) For the purposes of this section “campaign messages”
means an activity, statement or any other form of expression aimed
at promoting particular political ideas, policies and strategies for
purposes of obtaining votes for a candidate or political party
contesting an election.
- Misapplication of Section 89 (1)(n)
Section 89(1)(n) criminalizes:
“…being a candidate, use a symbol…other than the symbol registered with the Chief Electoral Officer…or, in the case of any other person, associate any candidate with, any symbol…other than the candidate’s registered symbol.”
This targets candidates who use symbols different from their registered ones, or persons associating a candidate with symbols not registered to that candidate.
It does not prohibit a political alliance member from wearing their party regalia unless it falsely associates them with a specific candidate contrary to that candidate’s registration, or it violates public order.
Therefore, using regalia of alliance members per se is not an offence under Section 89 unless it meets those specific prohibited acts.
The Commission invokes the derogation clause (“public order, safety, defense and morality”), but there is no evidence presented that alliance members or non-contesting parties distributing regalia inherently threaten public order.
Restrictions on freedoms must be proportionate and not arbitrary. A blanket ban on regalia may be excessive, particularly if less restrictive measures (e.g., regulating conduct rather than expression) could suffice.
- (1) A person shall not—
(a) within a period prescribed for the receipt of nominations, under this Act, loiter in any public place within four
hundred metres from the entrance to a nomination centre;
(b) having been required to leave a nomination office, fail to leave such nomination office or the precincts thereof;
(c) put into any ballot box anything other than the ballot paper which that person is authorised by law to put therein;
(d) without due authority take out of the polling station any
ballot paper or be found in possession of any ballot paper outside a polling station;
(e) on any polling day, at the entrance to or within a polling station, or in any public place or in any private place
within four hundred metres from the entrance to such polling station
(i) canvass for votes;
(ii) solicit the vote of any person;
(iii) induce any person not to vote; or
(iv) induce any person not to vote for a particular candidate;
(f) on any polling day loiter in any public place within four
hundred metres from the entrance to any polling station;
(g) on any polling day exhibit in any public or private place
within one hundred metres from the entrance to any
polling station any notice or sign, other than an official
notice or sign authorised by an election officer under
this Act, relating to the election;
(h) not being a presiding officer, an election officer, candidate,
an election agent or a polling agent in the course of their
functions within a polling station, make any record
showing that any particular person has voted in an
election;
(i) without lawful authority, destroy, mutilate, deface or remove
any notice which is exhibited in accordance with this
Act or under any regulations issued under this Act, or any document made available for inspection under this
Act and any such regulations;
(j)wilfully obstruct or interfere with a returning officer, presiding officer, or election officer in the execution of
their duties;
(k) make a false answer to any question put to that person by
a presiding officer or an election officer under this Act;
(l) have any communication with a voter while such voter is
in the precincts of a polling station for the purpose of
voting;
(m) fail to comply with any requirement or direction to leave
a polling station or the precincts thereof; or
(n) being a candidate use a symbol in the course of an election other than the symbol registered with the Chief Electoral Officer in accordance with this Act and any regulations
thereunder or, in the case of any other person, associate any candidate with, any symbol in the course of an
election other than the candidate’s registered symbol.
(2) A person who contravenes any of the provisions of
subsection (1) commits an offence and is liable, upon conviction, to
a fine not exceeding two hundred thousand penalty units or to
imprisonment for a period not exceeding two years, or to both.
- The “Independent Candidate” Precedent (2021) is Distinguishable
The Commission refers to its 2021 guidance to independent candidates not to use party regalia, arguing it prevented confusion. However, that guidance related to candidates, who are explicitly subject to regulation under Section 89(1)(n) regarding symbols. Alliance members or non-contesting parties are not candidates, and thus not directly covered by that restriction unless they are actively campaigning for votes in a misleading way. To the contrary, political party alliances have always enjoyed the freedom of association including display of respective regalia under the 2016 Electoral Process Act including the ruling UPND Alliance in 2021 general election.
Arising from the law extensively quoted, the Commission may dilute political competition and expression, potentially undermining the democratic process, contrary to the spirit of a multiparty system guaranteed by the Constitution as per Article 60 on political parties.
The Commission’s reliance on Sections 29 and 89 to justify a blanket prohibition on alliance member regalia is legally weak because these sections empower regulation of contesting candidates and political parties, not all political expression by third parties.
Section 89(1)(n) is narrowly aimed at preventing symbol misuse linked to candidates, not outlawing non-contesting parties’ regalia outright.
The restriction risks being beyond the Commission’s powers and unconstitutional, unless supported by specific regulations showing necessity for public order and proportionality.
The Commission can regulate the time, place, and manner of campaign material distribution to maintain order, penalize actual misuse of symbols or misleading associations, but cannot, without clear statutory authority, ban political alliances or non-contesting parties from wearing their regalia.
We therefore, urge political parties to commence legal action against the ECZ and commissioners.
Their decision can be based on the fact that the ECZ, issued guidance barring alliance members and non-contesting parties from displaying regalia during campaigns is ultra vires, as Sections 29 and 89 of the Electoral Process Act do not empower ECZ to prohibit regalia by non-contesting parties.
The decision is also a violation of the political party’s constitutional rights under Articles 20 and 21, as the restriction is neither prescribed by law nor necessary for public order.
The political parties should seek a declaration that the ECZ’s decision is unlawful.
In addition, the political parties can obtain an injunction restraining ECZ from enforcing the decision, initiate the setup of a tribunal to investigate gross misconduct of commissioners and other relief as the court deems fit.
Related
By Daily Revelation Editor
We have carefully read the statement and watched the video of the briefing where the ECZ chairperson Mwangala Zaloumis insisted on the Commission’s decision to ban party regalia from non participating political parties.
Zaloumis said the decision was based on sections 29 and 89 of the Electoral Process Act (2016).
Having interrogated the matter further to our previous editorial, we have come up with this new more informed position.
In insisting on the decision made Zaloumis said “providing guidance on how an election ought to be conducted is within the mandate of the Commission, and can never be a “misguidance and illegal act”.” This is premised on its constitution mandate as per article 229: below is what the Article states.
Zambia which shall have offices in Provinces and progressively in
districts.
(2) The Electoral Commission shall—
(a) implement the electoral process;
(b) conduct elections and referenda;
(c) register voters;
(d) settle minor electoral disputes, as prescribed;
(e) regulate the conduct of voters and candidates;
(f) accredit observers and election agents, as prescribed;
(g) delimit electoral boundaries; and
(h) perform such other functions as prescribed.
Article 229(2) mandates the Electoral Commission of Zambia (ECZ) to “implement the electoral process” and “regulate the conduct of voters and candidates.”
However, the Commission’s regulatory authority is explicitly directed towards candidates and voters participating in an election.
The Constitution does not expressly empower ECZ to regulate the conduct or political expression of political parties or citizens not contesting an election, or Alliances and their affiliates who are exercising freedoms of association and expression, provided they are not disrupting public order.
By extending its restriction to “campaign materials” from non-contesting parties or alliance members, ECZ arguably exceeds its constitutional mandate, since these groups are not “candidates” or “voters” per se.
This is also a conflict with constitutional rights, Articles 20 and 21 guarantee Freedom of Expression (Article 20), including political speech and the right to impart and receive ideas. Freedom of Association (Article 21), including forming or joining political parties or alliances.
While these freedoms can be limited in the interests of public order, morality, or national security, any restriction must be prescribed by law (i.e. found in statute, not just administrative guidance), and necessary and proportionate to achieve a legitimate aim.
Section 29(3) states:
“A candidate or political party may, during an electoral campaign, publish or distribute campaign materials of such a nature and in such a manner as may be prescribed by the Commission.”
The above clause gives the Commission the power to prescribe the manner of distributing campaign materials, but it does not prohibit other political parties (not contesting) from displaying regalia, provided such regalia is not used to solicit votes for a specific candidate unlawfully.
The Act explicitly defines “campaign materials” (Section 2) as party/candidate symbols, colours, designs, or images, but nowhere does it restrict their use solely to contesting parties or candidates.
Section 29(4) further clarifies that campaign messages are about promoting ideas and policies for purposes of obtaining votes. If an alliance member is merely showing affiliation, this activity falls under freedom of association and expression, not regulated campaign solicitation.
(1) A public officer and public entity shall give equal
(2) A candidate and political party has the right to have the content of the candidate’s or political party’s campaign message reported in public media in a fair and balanced manner.
(3) A candidate or political party may, during an electoral
campaign, publish or distribute campaign materials of such a nature
and in such a manner as may be prescribed by the Commission.
(4) For the purposes of this section “campaign messages”
means an activity, statement or any other form of expression aimed
at promoting particular political ideas, policies and strategies for
purposes of obtaining votes for a candidate or political party
contesting an election.
Section 89(1)(n) criminalizes:
“…being a candidate, use a symbol…other than the symbol registered with the Chief Electoral Officer…or, in the case of any other person, associate any candidate with, any symbol…other than the candidate’s registered symbol.”
This targets candidates who use symbols different from their registered ones, or persons associating a candidate with symbols not registered to that candidate.
It does not prohibit a political alliance member from wearing their party regalia unless it falsely associates them with a specific candidate contrary to that candidate’s registration, or it violates public order.
Therefore, using regalia of alliance members per se is not an offence under Section 89 unless it meets those specific prohibited acts.
The Commission invokes the derogation clause (“public order, safety, defense and morality”), but there is no evidence presented that alliance members or non-contesting parties distributing regalia inherently threaten public order.
Restrictions on freedoms must be proportionate and not arbitrary. A blanket ban on regalia may be excessive, particularly if less restrictive measures (e.g., regulating conduct rather than expression) could suffice.
(a) within a period prescribed for the receipt of nominations, under this Act, loiter in any public place within four
hundred metres from the entrance to a nomination centre;
(b) having been required to leave a nomination office, fail to leave such nomination office or the precincts thereof;
(c) put into any ballot box anything other than the ballot paper which that person is authorised by law to put therein;
(d) without due authority take out of the polling station any
ballot paper or be found in possession of any ballot paper outside a polling station;
(e) on any polling day, at the entrance to or within a polling station, or in any public place or in any private place
within four hundred metres from the entrance to such polling station
(i) canvass for votes;
(ii) solicit the vote of any person;
(iii) induce any person not to vote; or
(iv) induce any person not to vote for a particular candidate;
(f) on any polling day loiter in any public place within four
hundred metres from the entrance to any polling station;
(g) on any polling day exhibit in any public or private place
within one hundred metres from the entrance to any
polling station any notice or sign, other than an official
notice or sign authorised by an election officer under
this Act, relating to the election;
(h) not being a presiding officer, an election officer, candidate,
an election agent or a polling agent in the course of their
functions within a polling station, make any record
showing that any particular person has voted in an
election;
(i) without lawful authority, destroy, mutilate, deface or remove
any notice which is exhibited in accordance with this
Act or under any regulations issued under this Act, or any document made available for inspection under this
Act and any such regulations;
(j)wilfully obstruct or interfere with a returning officer, presiding officer, or election officer in the execution of
their duties;
(k) make a false answer to any question put to that person by
a presiding officer or an election officer under this Act;
(l) have any communication with a voter while such voter is
in the precincts of a polling station for the purpose of
voting;
(m) fail to comply with any requirement or direction to leave
a polling station or the precincts thereof; or
(n) being a candidate use a symbol in the course of an election other than the symbol registered with the Chief Electoral Officer in accordance with this Act and any regulations
thereunder or, in the case of any other person, associate any candidate with, any symbol in the course of an
election other than the candidate’s registered symbol.
(2) A person who contravenes any of the provisions of
subsection (1) commits an offence and is liable, upon conviction, to
a fine not exceeding two hundred thousand penalty units or to
imprisonment for a period not exceeding two years, or to both.
The Commission refers to its 2021 guidance to independent candidates not to use party regalia, arguing it prevented confusion. However, that guidance related to candidates, who are explicitly subject to regulation under Section 89(1)(n) regarding symbols. Alliance members or non-contesting parties are not candidates, and thus not directly covered by that restriction unless they are actively campaigning for votes in a misleading way. To the contrary, political party alliances have always enjoyed the freedom of association including display of respective regalia under the 2016 Electoral Process Act including the ruling UPND Alliance in 2021 general election.
Arising from the law extensively quoted, the Commission may dilute political competition and expression, potentially undermining the democratic process, contrary to the spirit of a multiparty system guaranteed by the Constitution as per Article 60 on political parties.
The Commission’s reliance on Sections 29 and 89 to justify a blanket prohibition on alliance member regalia is legally weak because these sections empower regulation of contesting candidates and political parties, not all political expression by third parties.
Section 89(1)(n) is narrowly aimed at preventing symbol misuse linked to candidates, not outlawing non-contesting parties’ regalia outright.
The restriction risks being beyond the Commission’s powers and unconstitutional, unless supported by specific regulations showing necessity for public order and proportionality.
The Commission can regulate the time, place, and manner of campaign material distribution to maintain order, penalize actual misuse of symbols or misleading associations, but cannot, without clear statutory authority, ban political alliances or non-contesting parties from wearing their regalia.
We therefore, urge political parties to commence legal action against the ECZ and commissioners.
Their decision can be based on the fact that the ECZ, issued guidance barring alliance members and non-contesting parties from displaying regalia during campaigns is ultra vires, as Sections 29 and 89 of the Electoral Process Act do not empower ECZ to prohibit regalia by non-contesting parties.
The decision is also a violation of the political party’s constitutional rights under Articles 20 and 21, as the restriction is neither prescribed by law nor necessary for public order.
The political parties should seek a declaration that the ECZ’s decision is unlawful.
In addition, the political parties can obtain an injunction restraining ECZ from enforcing the decision, initiate the setup of a tribunal to investigate gross misconduct of commissioners and other relief as the court deems fit.
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