CONSTITUTION WATCH 11/2013
[2nd March 2013]
High Court Rejects NCA Bid to Postpone Referendum
On Thursday 28th February Judge-President Chiweshe dismissed “in its entirety” the National 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.
University 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 hearing.
Who Will Conduct the Referendum?
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”.
New Referendums Regulations Gazetted
New regulations 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 March 2000.
The regulations 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 Referendum Day]
· where voters can vote.
Who 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 the Referendum.
Documents 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 is received.
· a valid Zimbabwean passport.
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.
Driver’s licences not sufficient A driver’s licence cannot be used [Regulations, section 3(2)]. This is because a driver’s licence does not officially state the holder’s citizenship.
Where 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 pesons living with disabilities. [Regulations, section 6].
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