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Inconsistencies between Referendums Act and Electoral Act - Constitution Watch 9/2013
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:

  • Postal or special voting

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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