By STEPHEN KAPAMBWE –
AS Zambian citizens continue to interrogate the amended Constitution, the 50 per cent plus one clause requires further discussion.
Prior to the assenting to the amended Constitution, Zambia was using the ‘first-past-the-post’ or ‘winner-takes-all’ system to elect a Republican President.
The winning candidate in the presidential poll was determined on the basis of a simple majority vote by counting who got the highest tally of the ballot from the total votes cast.
This raised concern from some sections of society, among them civil society groups and some opposition political parties, who pressed for the inclusion of the 50 per cent +1 clause in the Republican Constitution.
Those pushing this agenda said the country needed to avoid the election of what they called “minority presidents” who assumed power largely as a result of splintered votes caused by the multiplicity of presidential candidates.
The large number of presidential candidates has had a big impact on the number of votes that winning candidates get in elections.
For example, the January 20, 2015 presidential election which ushered President Edgar Lungu into office had 11 candidates contesting the presidency.
This was not the first time so many candidates were running for the highest office in the land.
It was the trend, especially after 1991 when first Republican President Kenneth Kaunda reintroduced plural politics.
Ten presidential candidates contested the presidential election that ushered the Patriotic Front (PF) into power in 2011, while in 2008, the snap-election called to replace late President Levy Mwanawasa drew four contestants.
Five candidates ran for the presidency in 2006 while in 2001, the presidential election attracted 11 contestants.
The large number of contestants in presidential elections meant winning candidates rarely achieved 50 per cent of votes cast.
Information available on the official website of the Electoral Commission of Zambia (ECZ) indicates that in 2001, late President Mwanawasa succeeded President Frederick Chiluba with 43.117 per cent of the total valid votes cast.
Dr Mwanawasa beat the late United Party for National Development (UPND) leader Anderson Mazoka, who got 39.030 per cent of the valid votes cast.
Dr Mwanawasa retained the presidency in 2006 when he won 42.98 per cent of the total valid votes cast, beating Michael Sata of the PF who got 29.37 per cent.
In the snap presidential election that followed the demise of President Mwanawasa in 2008, MMD retained power through Rupiah Banda who won 40.09 per cent of the total valid votes cast, beating Mr Sata who mustered 38.13 per cent.
This information shows that in the elections held between 2001 and 2008, no presidential candidate got 50 per cent of the votes cast, especially in the case of President Banda who succeeded Dr Mwanawasa in 2008 with 40.09 per cent of the votes cast.
This issue raised concern by some people who asked how President Banda would claim to be a national leader when only 40.09 per cent of the electorate voted for him.
It was argued that a president such as Mr Banda could not claim to be nationally popular because almost 60 per cent (59.01 per cent to be precise) of the electorate did not vote for him.
To ensure that a winning President got elected by at least more than half of the electorate, the 50+1 clause was suggested and has since been included in the amended Constitution.
It falls under Part VII of the amended Constitution which discusses Executive Authority.
Under the title Election of the President, Article 101(2) says, ‘The returning officer shall declare the presidential candidate who receives more than fifty per cent of the valid votes cast during the election as President-elect.’
This simply means that for one to be declared winner in a presidential poll, one needs to win by a minimum of 50 per cent plus one of the total votes cast.
For example, if the country has 700 registered voters on the voters roll and of these, say 500 cast their votes, the winning candidate should get more than half of the 500 votes cast, which is more than 250, to win the election in the first round of voting.
So in this case, the winning candidate should get a minimum of 250+1 votes, which is 251.
If none of the candidates manages the 50+1 threshold, then the two candidates with the highest votes have to go for a second round of the ballot.
So in the first round of voting, the winner is supposed to get half of the total votes cast plus one, leaving the runner-up or the rest of the candidates with 49 per cent or less.
But the Constitution takes care of a few other scenarios that could arise in a typical election.
Article 101(3) says, ‘If at the initial ballot a presidential candidate does not receive more than 50 per cent of the valid votes cast, a second ballot shall be held within thirty-seven (37) days of the initial ballot, where the only candidates shall be presidential candidates who obtained; (a), the highest and second highest number of valid votes cast in the initial ballot; or (b), an equal number of the valid votes cast in the initial ballot, being the highest votes amongst the presidential candidates that stood for election to the office of President.’
This article explains what would happen in the event that the two leading presidential candidates get an equal number of votes cast, or an equal percentage of the votes cast.
This means the two candidates have to go for the second round, or the re-run, where a winner, according to Article 101(8), has to obtain the majority of the valid votes cast in the second ballot.
The presidential candidate who obtains the majority of the valid votes cast in the ballot shall be President-elect.
Article 102 further explains that where a presidential candidate who participated in the first round of the poll resigns for some reason, is disqualified or ruled out of the race by the Constitutional Court, then ‘…that presidential candidate shall not take part in the second ballot and the candidate who scored the third highest number of valid votes cast in the initial ballot shall be presidential candidate in the second ballot, together with the remaining presidential candidate that initially qualified for the second ballot.’
The amended Constitution also says that where a presidential candidate dies, or resigns due to ill-health: before the taking of the second ballot, the running mate of that presidential candidate in the initial ballot shall assume the place of that presidential candidate.
The running mate who assumes the place of the presidential candidate shall appoint a running mate.
The amended Constitution further provides for a situation where both presidential candidates are unable to participate in the re-run owing to resignation or disqualification.
In that case, the Constitution calls for fresh nominations to be filed with the ECZ, as prescribed, before the second ballot is taken.
In all these scenarios, the 50+1 clause for the winning presidential candidate applies in the first round.
Political analyst Chris Zimba said the 50 per cent +1 clause was one of the progressive clauses that the people of Zambia had wanted to be included in the amended Constitution.
Mr Zimba, who is a historian, said the clause would ensure that the presidency has a national character.
He said the 50 per cent +1 clause and the other changes in the supreme law of the land, “puts to rest the many issues relating to giving the country a people-driven Constitution”.