ADR Case Study: Zambia

This case study features a positive initiative by the Electoral Commission of Zambia (ECZ) to establish an ADR mechanism to prevent or resolve electoral disputes. The inclusion of religious and community members, together with party representatives, created local ownership. The decentralized structure and comprehensive training allowed members with direct knowledge of the context and the actors involved to resolve disputes quickly through mediation and conciliation. However, some challenges remain. In particular, insufficient training and funding lead to inconsistent reporting and variable approaches to the ADR process.

Before 2011, under Zambian law, only courts were empowered to adjudicate violations of electoral law. No redress mechanism was available before Election Day, so there was no possibility for a quick remedy for violations during the campaign period that could tamp down tensions. Necessitated by growing tensions during the 2001 election campaign, and influenced by the South African model, the ECZ introduced Conflict Management Committees (CMCs) to resolve electoral disputes via mediation. CMCs were established at the national level—the National Conflict Management Committee (NCMC)—and later in 72 districts (DCMCs) across the country to tackle local issues.110 Their membership comprised various stakeholders, including political party representatives, law enforcement and other government agencies, religious leaders,111 and representatives of civil society. After the successful pilot of this ADR mechanism, the legislature formalized the mandate of the CMCs112 to resolve electoral conflicts through mediation or conciliation in 2006.113

The chair of the ECZ appoints the chair of the NCMC,114 and the CEO of the ECZ sits on the NCMC. The committee members at the district level appoint their own chair to encourage increased local ownership. District electoral officers (DEOs)115 play a key role in the DCMCs, including constituting the committees. Membership in the committees is voluntary, and members receive an allowance while serving on the committee. From the start, the ECZ provided CMC members with guidelines and training on mediation, which contributed to the success of this ADR mechanism and the reduction in the number of petitions filed in the court.

Complaints to be resolved by the DCMCs are written and submitted to the DEOs, who determine whether the committee should convene and handle the dispute. Within 24 hours of receipt, the committee meets to decide under the guidance of the DEO whether the complaint should be handled by the DCMC (for minor, local disputes), or referred to law enforcement agencies or the national CMC.116 The DEO selects the members of the DCMC to mediate a given dispute. Complaints before the district CMCs primarily result from minor violations during the campaign period, including the destruction or defacing of campaign posters, insults traded between candidates, and disputes over campaign venues. Where the district CMC concludes it cannot address disputes, including major disputes between political parties, abuse of state resources, and results disputes, it refers the disputes to the national CMC.

The CMCs have no power to compel parties to participate in mediation or conciliation, requiring consent from the disputants and aiming to reach a voluntary solution or settlement rather than imposing an enforceable sanction. If the complainant/respondent is not satisfied with the outcome of the mediation, the dispute can be brought to the national CMC or ECZ before further consideration by the court, although disputants do not usually take a minor violation to court.117 Alternatively, the DEO or ECZ can present a report of the dispute and its resolution to the court if they are not satisfied with the result at the DCMC level. During the 2016 elections, the High Court refused to consider a case that had not been brought first to a CMC,118 in line with the courts’ power to promote ADR.119

EMB and political party officials criticized the CMCs as being merely an “academic” exercise without “sanctions or formal findings of wrongdoing.”120 To address this deficiency, in 2016, the ECZ121 gave district CMCs an added mandate122 to recommend the suspension from campaigning or the disqualification of any political party or candidate who violates the Code of Conduct. The NCMC considers the merits of the recommendation and submits its views to the ECZ, which considers the case and takes the decision. The new mandate has been well-received by members of the district CMCs, who view it as increasing political parties’ respect for their decisions and recommendations. However, awareness of this new mandate remains low, and it was not widely used in the 2021 elections. Some experts believe it is appropriate that the DCMCs only have the power to recommend, rather than impose, sanctions. “The DCMCs were not created to punish parties to a dispute; instead, they were designed to promote cohesion between political parties and the communities.”123 Other experts take a different view and argue that the CMCs’ lack of enforcement powers limits their effectiveness and impact.124 But this was how the CMCs were designed: “The ECZ established the committees to be advisory, not punitive.”125 Such ADR mechanisms are meant to complement, not replace, judicial or other dispute resolution and law enforcement mechanisms.

Despite a positive start, the impact of the CMCs has been mixed. Between 2001 and 2011, the ECZ and international observers agreed that they helped reduce violence and tension during campaigns.126 However, international observers pointed to challenging timeframes and lack of training at the district level,127 and the ECZ found that many rural districts did not follow the mediation rules and recordkeeping requirements, with training inadequacies appearing to be the problem.128 The view of the CMCs began to turn around from the 2011 elections, with the 2011 EU Election Observation Mission (EOM) report noting that the CMCs were “very active in places where the electoral contests were particularly hard fought, and they served a valuable role in resolving matters such as disputes about posters, insults traded between candidates, and threats of violence.”129 Similarly, the EU EOM in 2016 observed that “in many districts, CMC mediation helped diffuse tensions and solve minor disputes130 between parties…,” and the CMCs were “useful as a discussion platform for political parties.”131 The EISA Election Observation Mission (EOM) from 2016 noted “with satisfaction the efforts made by the ECZ to defuse tensions by using the Conflict Management Committees…to resolve political party violence...”132 However, the 2016 EU EOM also pointed out that “their performance and effectiveness greatly varied,” and they had “limited transparency.”133 The Carter Center Report on the 2016 elections noted the lack of transparency, in that CMC decisions were not published, and their hearings were not public.134

To date, the perception of the CMCs’ impact remains mixed, and donor support is relatively low. The CMCs are seen as a low-profile local activity, in contrast to high-profile, high-tech activities like electronic results transmission that features in many electoral support projects. The DCMCs face several challenges, including reporting, which is key to transparency. Data on the number of disputes filed, handled by CMCs, and resolved, or filed in the courts, is difficult to obtain. This information is typically received by the ECZ after the election period and not while the campaign period is ongoing,135 indicating a significant gap in reporting among DCMCs, and possibly poor coordination and recordkeeping at the ECZ.

Accessibility of DCMCs remains a challenge, primarily due to geographic distance for people in rural areas. The size of some districts makes it difficult to travel to the district center to file complaints and attend mediation sessions. As a result, many cases are not brought before the committees. The volume of complaints received by the DCMCs also has implications for their funding, with districts that receive fewer complaints receiving less funding, and then being mandated to meet only once or twice to hear disputes. The relocation or transfer of committee members at the rural DCMC level to other areas also leads to weakened efficiency and the need for further training. The size of some districts presents a challenge by overwhelming the DCMCs and limiting their capacity to effectively address all the disputes brought before them. For example, Lusaka’s over 3 million people, 33 wards, and seven outside constituencies leave the Lusaka CMC unable to deal with the volume and complexity of electoral disputes effectively.136 While challenges remain, these committees have had a positive impact in reducing conflict and tensions.