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Inconsistencies
between Referendums Act and Electoral Act - Constitution Watch 9/2013
Veritas
March 01, 2013
Too
Late for Postal Votes in the Referendum
Although the
Act specifies that anyone who "is 18 years or above and is
eligible to be registered as a voter" has the right to vote
in a Referendum, potential voters outside the country will not be
able to cast postal votes in the coming Referendum on the draft
constitution. According to the Electoral
Act, Part XIV, there has to be a period of two weeks for people
to apply for a postal vote; and, filled-in ballot papers have to
be received by the Chief Elections Officer two weeks before the
Referendum polling date. By giving only one month's notice
of the Referendum date the government has effectively disenfranchised
persons who might have wished to cast postal votes. Those normally
entitled to a postal vote are Zimbabweans outside the country on
duty in the service of the Government and their spouses, e.g., diplomatic
and consular officials, civil servants travelling outside the country
on Government business, and police officers and military personnel
serving abroad on UN peacekeeping missions. This opens the way for
challenges in the High Court, although it is unlikely that Government
employees will take legal action against their employer.
Referendums
Act Should have been Aligned with Amended
Electoral Act
Another problem
that has arisen from the Government's haste over the Referendum
date is that there was no time left to amend the Referendums Act.
As pointed out
in previous Constitution Watches and Bill Watch Legal Reform Series,
changes need to be made to the Referendums Act. The Act is nearly
fourteen years old. It was a rushed job and, despite its title,
was really designed for the Constitutional Referendum of 2000. It
was not entirely satisfactory as a Referendums Act then, and was
open to improvement. But, most importantly, since then inconsistencies
have arisen between it and subsequent electoral law changes. An
amendment was made in 2004 to transfer the conduct of referendums
from the Registrar-General's Office to the then new Zimbabwe
Electoral Commission [ZEC]. But, since then, there have been no
subsequent amendments to align it with later changes to the Electoral
Act, including the substantial changes made by the Electoral Amendment
Act of 2012.
The Government
was well aware of problems with the Referendums Act. This is shown
by the fact that proposals for a new Referendums Act put forward
by the Minister of Constitutional and Parliamentary Affairs, who
is responsible for the administration of the Act, remained stuck
in Cabinet for over a year before being rejected for want of inter-party
agreement to proceed. The Minister then tried to get approval for
a Referendums Amendment Bill, but that too has not emerged.
Importance
of clarity for the Forthcoming Election
The forthcoming
constitutional
referendum could be an historic turning-point for Zimbabwe.
For that reason it is important that no one should be in any doubt
about how the Referendum will be conducted, the fairness of the
process and the accuracy of the result.
Problems
Arising from Existing Referendums Act
Some of the
problem aspects of the Referendums Act are as follows:
First, and most
important, the question of postal or special voting, and voting
by the Zimbabwean Diaspora, should be clarified. The Act does not
mention any form of voting other than voting at polling stations,
which suggests that no other form is permissible. It is undesirable
that these issues should be open to legal argument.
- Vote counting
procedures contradict those in Electoral Act
According to
section 7 of the Referendums Act, votes cast in a referendum are
counted by returning officers [impliedly at constituency centres]
and the results forwarded direct to the Chief Elections Officer
of the Zimbabwe Electoral Commission [ZEC]. This should be amended
to incorporate words expressly aligning the vote-counting procedures
for referendums with the different procedures now prescribed for
elections by the Electoral Act, which requires votes to be counted
and announced initially at polling stations, then verified and collated
at constituency level and finally at national level - a comprehensive
procedure designed to eliminate dangers of vote-rigging.
- Out-of-date
reference to the Registrar-General in section 9(2) the Act
Section 9(2)
of the Act is inconsistent with section 8(4), to which it refers.
The reference to the Registrar-General should be to the official
correctly named in section 8(4) [the Chief Elections Officer of
the Zimbabwe Electoral Commission], not to the Registrar-General.
This does not present a serious legal problem; the rules of interpretation
of statutes allow an obvious mistake like this to be corrected by
reading in what should obviously be there.
- Communication
of final results - contradictory with Electoral Act
In the Referendums
Act, section 8(3) states that, once he or she has put together the
results coming in from returning officers, ZEC's Chief Elections
Officer must declare the result [total number of votes, number of
YES votes, number of NO votes, number of spoilt papers]. This is
the legally effective declaration of the result. It is then for
the Minister of Constitutional and Parliamentary Affairs to notify
that declared result by notice in the Government Gazette. The new
procedure laid down by the Electoral Act for Presidential election
results involves ZEC only: the Chief Elections Officer not only
declares the result, but also has the duty to notify it in the Government
Gazette [Electoral Act, section 110(3)(j)]. Ideally, the declaration
- Role of
Political Parties
The role of
political parties in the forthcoming referendum should also be considered.
Parties do not compete directly in referendums, but their attitude
towards the outcome of a referendum affects the electoral environment,
whether it is peaceful or violent, and their support for or opposition
to the question to be decided at a referendum will usually be a
decisive factor in determining the result. If a political party
campaigns for or against the issue in a referendum [the major parties
have said they are going for a yes vote, but some smaller parties
may be going for a no vote], 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 and observe the counting process.
- Difficult
to obtain a reasonable level of transparency
In a General
Election candidates and their agents are entitled to official copies
of the completed results forms in the polling station. In the Referendums
Act it states that in adapting the Electoral Act for the purposes
of a referendum, references to candidates, election agents and polling
agents must be disregarded. Accredited observers can observe vote
counting but are not entitled to official copies of the returns.
Alternative provisions should be made for interested parties [as
well as the political parties as suggested above] to be able to
have and keep official copies of any polling station returns if
there is to be a reasonable level of transparency in the tabulation
process.
Referendum
Regulations Also Need Aligning
The Referendum
Regulations [SI 22A/2000] have never been amended, and are even
more out of date than the Act, They are, for instance, full of references
to the Registrar-General, who no longer has any functions in relation
to referendums.
The
Solution
At least the
Regulations need to be changed and public informed of changes
As Parliament
has already adjourned until 7th May - and as Referendum day
[16th March] is just two weeks away - there is no chance whatsoever
of an amending Bill being passed by Parliament before the Referendum.
It is therefore
up to ZEC and the Minister of Constitutional and Parliamentary Affairs
to fill the gaps by amending or replacing the Referendums Regulations
of 2000. ZEC has the power to make regulations in terms of section
11 of the Act, but they require the approval of the Minister before
they can be gazetted. Regulations are in the pipeline and expected
to be gazetted shortly.
There is also
a certain leeway for ZEC under section 10 of the Referendums Act.
for some adaptive administrative decisions [Section 10 of the Referendums
Act states that "... the Electoral Act and the regulations
made thereunder shall apply to any referendum, in so far as they
can appropriately be applied to it ..." and adds that references
in the Electoral Act to an election must be construed as references
to a referendum.
It is very important
though that changes in the regulations and any leeway taken on administrative
decisions by ZEC should be thoroughly explained to the public.
Importance
of Public Understanding and Trust
It is of the
utmost importance that ZEC makes it clear to voters exactly how
the Referendum will be conducted, so that there can be no room for
confusion arising from the out-of-date referendums legislation.
Explanatory statements on new regulations and on administrative
decisions should be advertised in the press, and pamphlets in English
and indigenous languages should be circulated widely. Understanding
of the process and transparency will build up trust in ZEC [it is
a newly constituted constitutional commission] for the General Elections.
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