Part
I of this discussion outlined the contents of the Referendums
Act and Regulations.
In this bulletin
we move on to consider whether these laws should be changed.
First
a Correction
In the first
part of this Bill Watch we erroneously implied that the Minister
of Justice and Legal Affairs was responsible for the administration
of the Referendums Act. In fact, it is the Minister of Constitutional
and Parliamentary Affairs.
Hence it is
the Minister of Constitutional and Parliamentary Affairs who must
be notified of the result of a referendum in terms of section
8 of the Referendums Act, and he is the Minister who approves
regulations made by ZEC in terms of section 11 of the Act.
Note even
though the Referendums Act is administered by the Minister of
Constitutional and Parliamentary Affairs, the Referendum will
be funded through ZEC and ZEC’s Funding comes through the
Ministry of Justice. This would not matter if ZEC were a truly
independent commission, with control over its own finances; in
present circumstances, however, the split responsibilities may
lead to difficulties if there is a disagreement between the two
Ministers over how the forthcoming referendum should be conducted.
Should
the Referendums Act and Regulations be Amended?
The Referendums
Act was passed in 1999, before there was an Electoral Commission.
At that time elections were conducted by the Registrar-General
of Elections, who was under the general administrative control
of an Election Directorate consisting mainly of ministerial appointees.
It was envisaged that referendums would be conducted in the same
way.
Now there
is an Electoral Commission, which is an independent constitutional
body responsible for conducting both elections and referendums.
The Referendums Act, and the regulations made under it, need to
be re-examined in the light of this new constitutional and administrative
dispensation.
There is an
Electoral Amendment Bill draft which has been finalized and approved
by the party principals and needs final approval by Cabinet before
being printed for presentation to Parliament. So far as is known,
there are no amendments in this new Bill that affect the Referendums
Act.
A separate
Bill will be needed to make the amendments to the Act that are
suggested below.
Amendments
to the regulations can be made by the Zimbabwe Electoral Commission
[ZEC] through a statutory instrument published in the Gazette,
though because the regulations are fairly old it would be better
to replace them altogether. Whether they are amended or replaced,
however, ZEC would have to get approval for any changes from the
Minister of Constitutional and Parliamentary Affairs [not, as
was erroneously stated in Part I of this Bill Watch, the Minister
of Justice and Legal Affairs].
Possible
Amendments to the Referendums Act
There are
several amendments that can and should be made to the Act and
its regulations:
-
The first
was noted in Part I. Section 8 of the Act, which deals with
counting of votes, should be amended to bring the vote-counting
procedures for referendums into line with those prescribed in
the current Electoral Act for elections, i.e. to provide for
votes to be counted initially at polling stations, posted outside
the polling station and then verified and collated at constituency
centres and at national level.
-
Secondly,
the President’s power to call referendums merits reconsideration.
Why should the President, i.e. the Government, have the exclusive
right to call referendums? Could the Act not be amended to provide
for a referendum to be called if a sufficient number of voters
[perhaps 10 per cent of the electorate] petition ZEC for a referendum
on a particular question? Such referendums could be held simultaneously
with general elections.
-
Thirdly,
the formulation of the question to be decided at a referendum
should not be left entirely to the President or the Cabinet,
who may have a vested political interest in securing a particular
result from the referendum. [For example, “Are you in
favour of the far-sighted and progressive Kariba
Draft Constitution? Yes or No?”] Giving ZEC the task
of formulating the question might compromise ZEC’s independence
and impartiality, since the formulation of such questions is
often a political matter. Consideration should be given, therefore,
to allowing anyone aggrieved by the President’s formulation
of a question to appeal against it to the Electoral Court, and
for the court to decide whether the formulation was fair or
not. Stringent time-limits would have to be laid down for any
such appeal to avoid delaying the referendum.
-
Next,
the Act impliedly allows voters to cast their votes in a referendum
at any polling station anywhere in Zimbabwe. The regulations
specifically allow them to do so. This may make it difficult
for electoral officers to identify cases of double voting or
similar malpractices. If this is a real problem, the Act should
be amended to oblige voters to cast their votes in the constituencies
in which they are registered or entitled to be registered.
-
Provision
should also be made for postal voting. The Act does not prohibit
this — it is completely silent on the point — but
it should give some idea of the extent to which postal voting
is allowed in referendums.
-
Next,
the accreditation of observers is currently regulated under
the Electoral
Act and the Electoral Act’s provisions are unduly
restrictive. It would be possible for ZEC to make regulations
under the Referendums Act relaxing or removing those restrictions
and allowing a much wider spectrum of organisations to observe
referendums.
-
If the
issue to be decided in a referendum is a political one the attitude
of political parties towards the outcome affects the electoral
environment — whether it is peaceful or violent —
and their attitude will usually be a decisive factor in determining
the result. Their role should be recognised in the Act. For
example, if a political party campaigns for or against the issue
in a referendum, ZEC should be given power to declare the party
to be a contestant in the referendum and to be subject to all
the obligations, and entitled to all the rights, of a political
party in a general election. The consequence of such a declaration
would be, for instance, that the party would have to participate
in multi-party liaison committees, would have to abide by a
statutory code of conduct, and would be entitled to appoint
agents to witness voting procedures and the counting of votes.
-
Should
the result of a referendum be determined solely by a majority
of the votes cast in the referendum, or should the geographical
spread of votes influence the result? The result of a referendum
may affect different parts of the country in different ways,
and some allowance should be made for this in the Act.
-
Provision
should be made for the result of a referendum to be communicated
to ZEC, not to the Minister, and for ZEC to publish the result
in the Gazette. This is what happens in elections and the same
should apply to referendums.
-
There
should be an amendment providing for the result of a referendum
to be announced within a specific number of days.
-
The right
to appeal against the result of a referendum should be extended
and clarified. Under section 167 of the Electoral Act an electoral
petition [in effect, an electoral appeal] can be made on the
ground of “electoral malpractice, irregularity or any
other cause whatsoever”. The grounds of appeal under section
9 of the Referendums Act are much narrower, and should be aligned
with those in the Electoral Act. As to who should be allowed
to appeal, any voter who voted in the referendum and any party
that contested the referendum should have a right to appeal
against the result.
-
To what
extent should the result of a referendum be binding on the Executive
and the Legislature? If, for example, voters in the forthcoming
constitutional referendum reject the draft constitution, could
Parliament enact it anyway? And conversely, if voters accept
the draft, could Parliament amend the draft before enacting
it into law? At present there is nothing in the GPA
or the Referendums Act to prevent either of these two outcomes.
The law should be clarified on the point. The point is important
for all referendums, of course, but it is particularly so for
the constitutional referendum. Politicians should not be allowed
to ignore the wishes of the people expressed in a referendum.
-
Section
11 of the Act should be amended to remove the veto power of
the Minister of Constitutional and Parliamentary Affairs over
regulations made by ZEC. The Commission is a constitutional
body which must exercise its functions independently; the Minister’s
power of veto is wholly inconsistent with this independence.
Conclusion
Two points
should be remembered with regard to the forthcoming referendum.
First, if the political environment in which a referendum takes
place is characterised by violence and intimidation, the result
of the referendum will not reflect the wishes of the electorate
no matter what provisions are contained in the Act. Secondly,
even if the referendum is free and fair its result is likely to
be influenced by extraneous factors such as the popularity of
the government or the state of the economy: the electorate seldom
gives a considered answer to the question that is actually asked
in a referendum.
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