DO COURTS HAVE THE POWER TO ORDER AN ELECTION RECOUNT?
Picture this:
Ba Mweemba is a seasoned voter in Nyimba. After election results are announced, he hears rumours that some votes may have been miscounted. Being a man who remembers how things were done in the good old days, he confidently declares, “No problem! The courts have ordered recounts before. The judge can simply order another one!”
His friend, Ba Chibesa, who happens to have a little more curiosity than confidence, asks, “Ba Mweemba, before you start celebrating, have you checked whether the law is still the same?”
Ba Mweemba falls silent. Even the coffee in his cup seems to have lost its sweetness!
That, dear Facebook friend, is precisely the question that arose in Menyani Zulu v Paul Lungu and Electoral Commission of Zambia, decided by the High Court on 9 October 2026.
Under the old Electoral Act, the law expressly provided for judicial scrutiny of votes during an election petition. Even where legislation was silent, the case of Kapongo Bwanga Jeffrey Wisamba v Matthews McKay Makayi recognised a common-law route through which a recount could be sought.
Then came the Electoral Process Act of 2016, and the legal kitchen received a new set of instructions!
Under the new regime, objections to the sorting and counting of ballots must follow the prescribed administrative procedure. The presiding officer handles the objection and may order a recount, with an appeal to the returning officer. Unlike the old Act, the new law does not expressly provide for judicial scrutiny of votes.
So, when Menyani Zulu asked the High Court to order a recount, Justice Chanda had to confront the central question: could the Court still order a recount as a judicial remedy under the new law?
The Judge’s answer was no. The Court held that the former common-law route to a judicial recount had ceased to exist under the new statutory regime. The application also faced procedural defects and insufficient evidence.
But does that mean the High Court has lost the power to determine whether an election was valid? Absolutely not! The Court can still hear an election petition and decide whether an election should stand. The distinction is that determining the validity of an election is not the same as ordering a recount as a judicial remedy.
WHAT DOES THIS MEAN FOR THE ORDINARY CITIZEN?
If you are a candidate, electoral agent or concerned voter, do not wait until the results are announced, the crowds have dispersed and the ballot boxes have travelled halfway to Chipata before remembering that you had an objection!
Know the prescribed procedure, raise objections through the proper channels and preserve your evidence. Complaining at a trading place in Kamwala may win you an audience, but it will not necessarily win you a remedy in court.
The Moral of The Story?
Never assume that because a legal door was open yesterday, it must still be open today. Yesterday’s practice is not automatically today’s law.
The law, like food in your kitchen, has an expiry date. Before consuming yesterday’s legal wisdom, check the label! Otherwise, you may confidently serve yesterday’s nshima only to discover that the law has already changed the menu.
And remember, dear Facebook friend, this is a campfire tale, not a substitute for the full judgment. Justice Chanda granted leave to appeal, meaning the appellate courts may yet have the final word.
So, do courts have the power to order an election recount? According to Justice Chanda’s interpretation of the current statutory framework, not as a judicial remedy in an election petition. Whether that interpretation survives an appeal remains to be seen.
For now, let us keep the fire burning, the facts straight and the legal ingredients fresh!
Disclaimer:
My commentary on this decision is no more a legal critique than a campfire tale is a treatise on thermodynamics. It is, rather, a dramatized retelling, a lively reenactment if you will, of the judicial clash, unburdened by the solemn drudgery of analysis and delivered with the unapologetic zest of a storyteller who knows a good duel when he sees one.
