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Referendum and the Draft Constitution [Part I] - Constitution Watch 5/2013
Veritas
February 18, 2013

Read Part II

The draft new constitution that will be put to a Referendum was gazetted on 15th February.

The draft, together with COPAC’s report, was presented to Parliament on 6th February in accordance with COPAC’s obligation under article 6.1(a)(v) of the Global Political Agreement [GPA] to “report to Parliament on its recommendations over the content of a New Constitution for Zimbabwe”. The proceedings in Parliament were concluded on 7th February, with both Houses having accepted both the report and the recommended draft constitution.

This paved the way for the next stage in the constitution-making process: the holding of the Referendum at which voters will decide whether or not the draft constitution should be adopted as the new Constitution of Zimbabwe.

Shock Decision to Proclaim Referendum on 16th March

The surprise decision to have the Referendum on 16th March was announced by the Minister of Constitutional and Parliamentary Affairs on 13th February. The confirmation of this date by a proclamation, signed by President Mugabe on 14th and gazetted on 15th February, has left many Zimbabweans reeling in shock and disbelief.

Article 6.1.(c)(xiii) of the GPA lays down that a Referendum must be held “within three months of the conclusion of the debate”. This clearly indicates that there must be adequate time for the people to study and consider the draft before answering the momentous question whether or not they want the draft constitution to replace the present constitution. It is essential that voters have a sufficient period within which to make an informed decision on whether to vote Yes or No or, perhaps, to abstain. And to make an informed decision, voters will need to have access to the draft in a language they understand and time to study it and to listen, not only to COPAC’S planned explanation of the draft, but also to the views of civil society organisations and all political parties, especially those left out of the constitution making-process.

Too little time for the people to study the draft for the new Constitution of Zimbabwe, on which they have to vote in the Referendum, gives rise to the risk that the Referendum result will not be accepted as a genuine reflection of the people’s wishes, but rather dismissed as the result of obedient masses rubber-stamping the instructions of political demagogues.

Why the 16th March is Totally Unreasonable

Many factors justify the complaint that the 16th March is much too early to hold the Referendum. They can be summed up as:

• Referendums Act and regulations need to be aligned to the amended Electoral Act
• ZEC have said they need at least two months’ notice to organise the Referendum properly. ZEC is still without a Chairperson, and the finance for the Referendum has not been made available.
• The people will not have enough time to learn about the draft constitution before voting on it – which runs counter to all the politicians’ fine talk about respecting and empowering the people and promoting a culture of constitutionalism
• Civil society, on whom much of the burden of informing and educating the people rests [as COPAC and Ministry of Constitutional and Parliamentary Affairs plans to inform the people are not only not adequate but driven by party political and not a national agenda] are outraged at the short notice – they need more time to be able fulfil their obligations to their constituencies as they would wish to.

Note: These points will be expanded on in Part II.

Timing Could Still be Changed

There is no legal obstacle to changing the date to allow a more reasonable length of time for people to consider the draft and how to cast their vote. All that is needed is an amending Proclamation [section 21 of the Interpretation Act states that a power to make a statutory instrument includes the power to amend it]. The case for a later Referendum date is strong.

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