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The Referendums Act & Regulations - Part II - Legislative Reform Series 3/2010
Veritas
October 07, 2010

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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