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bid to stop Referendum under appeal: Who can vote in Referendum
and where - Constitution Watch 11/2013
March 03, 2013
Court Rejects NCA Bid to Postpone Referendum
28th February Judge-President Chiweshe dismissed "in its entirety"
Constitutional Assembly's application
to stop the Referendum on 16th March. The NCA wanted the High Court
to set aside the President's proclamation of 16th March as
Referendum Day and to extend the period to allow an extension of
at least two months for voters to learn about and consider the draft
constitution before voting. Its case was that in fixing so early
a Referendum Day the
President acted "arbitrarily, irrationally and grossly unreasonably".
Relying on section
31K of the present Constitution,
Justice Chiweshe concluded that the President's conduct in
setting the Referendum date "is not subject to review by a
court". In so ruling, he upheld the preliminary point raised
by Deputy Attorney General Machaya in his argument on 25th February,
which was that the President's decision on the Referendum
date fell within the limited range of purely discretionary decisions
which section 31K says cannot be reviewed by a court. He then dismissed
the entire application without having heard argument on the merits
of the NCA complaint.
of Zimbabwe law professor and NCA chairperson Lovemore Madhuku
immediately said there would be an urgent appeal to the Supreme
Court against this decision. The appeal was lodged on Friday 1st
March by NCA's lawyer Alec Muchadehama. The grounds of appeal
are that Justice Chiweshe was mistaken in deciding that the President's
decision was protected from judicial review by section 31K, and
therefore also erred in dismissing the application in its entirety
without hearing argument on the merits of the case, i.e., whether
or not the President's decision was arbitrary, irrational
and grossly unreasonable. The Supreme Court is not usually able
to hear and decide an appeal within two weeks, which is all that
remains before 16th March, but the NCA are asking for an urgent
Will Conduct the Referendum?
will be conducted by ZEC using its permanent and temporary staff.
The Registrar-General is no longer responsible for any aspect of
the conduct of a Referendum. This is stated in the present Constitution,
section 100C(1)(a), the Referendums Act and the new Referendums
Regulations. Section 100C(1)(a) of the Constitution
also spells out that ZEC must "ensure that referendums are
conducted efficiently, freely, fairly, transparently and in accordance
with the law".
Referendums Regulations Gazetted
under the Referendums Act have been produced by the Zimbabwe Electoral
Commission [ZEC] and approved by the Minister of Constitutional
and Parliamentary Affairs. The regulations were gazetted on Friday
1st March [Statutory Instrument 26/2013] and came into force immediately.
They replace the previous regulations which were gazetted in SI
22A/2000 and used for the previous Constitutional Referendum in
spell out in detail the procedure that ZEC will follow in conducting
the Referendum, and answer such important questions as:
- how voters
can prove their eligibility to vote in the Referendum [i.e., what
documents they should take with them to the polling station on
- where voters
Can Vote in the Referendum
The basic qualification
for voting in the Referendum is stated in section 6 of the Referendums
Act: "Any person who satisfies the presiding officer of a
polling station that he or she is eighteen years or above and is
eligible to be registered as a voter on the voter's roll"
is eligible to vote.
It is not necessary
to be a registered voter. Eligibility to be registered as a voter
is all that is required. Voters' rolls will not be used in
Needed to Vote in the Referendum
At the polling
station a voter must be able to provide proof of eligibility to
vote. The new regulations stipulate what documents are needed [Regulations,
section 3]. All the voter needs to do is to produce one of the following
documents, on which "it is legibly shown that that the person
is a citizen of Zimbabwe of or over the age of eighteen  years":
- a Zimbabwe
national identity document [except IDs of non-citizens -
see more below] issued in terms of the National Registration Act
[metal or plastic]
- a "waiting
pass" which includes a photograph of the holder. A waiting
pass is the document that one gets when applying for a national
ID and that serves as proof of registration until the ID itself
- a valid
What about an
ID that indicates holder is not a citizen? As IDs are compulsory
for all residents, including non-citizens, IDs held by non-citizens
indicate this status by an "A" or "ALIEN"
at the end of the ID number. This type of ID is not sufficient for
the purpose of voting. If the holder of an alien's ID has
become or been recognised as a Zimbabwe citizen since it was issued,
he or she will have to produce proof of that fact to the polling
station officials, e.g. a certificate of registration as a citizen
or a certificate of citizenship issued by the Minister of Home Affairs.
licences not sufficient
licence cannot be used [Regulations, section 3(2)]. This is because
a driver's licence does not officially state the holder's
can People Vote?
A voter in the
Referendum may vote at any polling station anywhere in the country.[Regulations,
section 4]. ZEC will notify the location of all polling stations
on its website, in mass circulations newspapers and in the Government
Gazette not later than Wednesday 13th March. The new regulations
state that polling stations must be located in places that are readily
accessible to the public, including persons living with disabilities.
[Regulations, section 6].
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