Introduction

If the outreach programme is concluded by the end of this month and if COPAC sticks to the agreed timetable – big ifs, both of them, in view of the delays that have dogged the process so far – then the referendum can be expected by May next year. Under the GPA the parties agreed that within three months after COPAC had completed its outreach programme a draft constitution would be prepared and presented to a second All-Stakeholders Conference, and one month later would be laid before Parliament for debate; Parliament would have one month within which to debate the draft, and then within three months the draft would be gazetted and put before the electorate in a referendum. In anticipation of this, the Minister of Finance has reportedly been instructed to set aside one hundred million dollars in the coming budget to pay for the referendum.

The referendum, whenever it takes place, will be held in terms of the Referendums Act [Chapter 2:10] and the regulations made under the Act. What do the Act and the current regulations say about referendums, and should the Act be amended and/or should the regulations be amended or replaced to enable the constitutional referendum to take place satisfactorily?

The Provisions of the Referendums Act and Regulations

The Referendums Act was passed in 1999 and was amended in 2004 in an attempt to bring it into line with the current Electoral Act. The Referendums Regulations [Statutory Instrument 22A of 2000] have not been amended. The main provisions are as follows:

Calling of referendums

Under section 3 of the Act, the President has power to call a referendum, to state the question to be put to voters at the referendum, and to fix the dates and times of polling. In exercising these powers, the President must act on the advice of Cabinet [section 31H(5) of the Constitution].

Entitlement to vote at referendums

Under section 6 of the Act, anyone who can satisfy the presiding officer of a polling station that he or she is an adult and eligible to be registered as a voter on the voters’ roll is entitled to vote at a referendum. So adult citizens who are resident in a constituency are entitled to vote. The Referendums Regulations supplement this by stating that anyone who shows that he or she is a citizen by producing a national I.D. or a “waiting pass” [proof of application for an I.D. or interim I.D.] or a passport or drivers licence is presumed to be entitled to vote at a referendum. Note that there is no need for prospective voters to produce proof of residence: under section 5 of the regulations voters can cast their votes at any polling station no matter where they reside, so proof of residence is irrelevant.

Voters’ rolls are not to be used in referendums for the purpose of identifying voters, unless the Registrar-General, now presumably the Zimbabwe Electoral Commission [ZEC] directs that they must be used [section 8 of the regulations].

Voting at referendums

Ballot papers at a referendum state the question that is being put to the voters, and immediately below the question there are two rectangles where voters can put a cross opposite the words “Yes” and “No”. The question must therefore be stated in such a way that voters can answer it with a yes or a no. This is clear from section 8 of the Act, which deals with the counting of votes, and section 3 of the regulations, which prescribes the form of ballot papers.

This is not quite as restrictive as it sounds. In the constitutional referendum, for example, it would be possible to state several questions relating to the draft constitution, each of which could be answered with a yes or a no. For example: “Do you approve of the Declaration of Rights in the new constitution? Yes or No.” “Do you approve of Chapter III relating to the President’s powers? Yes or No.” And so on. It would even be possible, if COPAC could not agree on a single draft constitution, to put two or more drafts to the voters in a single referendum.

However, the more options and alternatives that are put to the voters the more complicated the voting process becomes, even if all the questions can be answered with a yes or a no. If the electorate is to give a clear answer in a referendum, it is best to keep the questions short and simple.

Counting of votes

According to section 8 of the Act, votes are counted by returning officers [impliedly at constituency centres] and the results forwarded to ZEC’s Chief Elections Officer. The Act does not envisage the procedure currently employed in elections under the Electoral Act, whereby votes are counted at polling stations, then collated and verified at constituency centres and [in the case of presidential elections] finally collated at a national centre.

In this respect the Referendums Act follows the procedure laid down in the earlier electoral law, and it was not amended in 2004 to align it with the current Electoral Act.

After the votes have been counted in a referendum, the Minister of Justice, not ZEC, must be told of the result, and it is the Minister, not ZEC, who must publish a notice in the Gazette announcing the result [section 13 of the regulations and 8(5) of the Act].

Appeals against result of referendum

Section 9 of the Act allows an appeal to the Electoral Court against the acceptance or rejection by a returning officer of votes “in regard to which there has been a dispute between the returning officer and an aggrieved party”. As there are no equivalents to election agents in a referendum, it is difficult to see who there would be to disagree with the returning officer’s decision other than observers and they could hardly be aggrieved parties to lodge an appeal. No appeal is allowed on any other ground.

Application of Electoral Act to Referendums

Under section 10 of the Referendums Act, the Electoral Act [note all references in this bulletin are to the current Electoral Act, but there may well be either a new or amended Electoral Act before the referendum takes place, in which case Veritas will issue a revised comment on the Referendums Act] applies to all aspects of a referendum that are not specifically dealt with by the Referendums Act and the regulations made under it. So observers for referendums are accredited in the same way as observers for elections, and voters may be assisted to vote in the same way as in elections, and so on.

An important point to note is that the Electoral Act applies only where the Referendums Act and its regulations are silent. It is possible for regulations [existing ones or any new ones brought out under the Referendums Act] to override and modify the provisions of the Electoral Act in so far as they apply to referendums [see section 11(2)(d) of the Referendums Act]. Therefore ZEC could, in theory, make regulations relaxing the restrictions which the Electoral Act imposes on the accreditation of observers, for example, to allow more local and foreign organisations to observe referendums.

Regulations

The current regulations were made in 2000 under section 11 of the Act by the Minister of Justice, Legal and Parliamentary Affairs when there was no ZEC. When ZEC was established in 2004, section 11 of the Act was amended to transfer the regulation-making power from the Minister to ZEC. Section 11 empowers ZEC to make regulations on a wide variety of matters. Any regulations, however, must be approved by the Minister of Justice and Legal Affairs — which is why in the preceding paragraph it was stated that ZEC’s power to relax the restrictions on observers was theoretical rather than actual.

It may be that the requirement for the Minister’s approval of regulations — like the similar requirement in the Electoral Act — is unconstitutional in the light of section 100H of the Constitution, which states that the State must make provision to ensure that ZEC is able to exercise its functions independently.

Electronic versions of Referendums Act and Regulations available on request

Part II – Suggested Amendments to the Referendums Act and Regulations – to follow

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.