CONSTITUTION WATCH 5/2013

[18th February 2013]

Referendum and the Draft Constitution [Part I]

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 March, has left many Zimbabweans reeling in shock and disbelief.  [Full text of Proclamation below]

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. 

Proclamation of Referendum Date – 16th March

Statutory Instrument 19 of 2013 – Proclamation 1 of 2013

PROCLAMATION

by

HIS EXCELLENCY THE HONOURABLE ROBERT GABRIEL MUGABE, Grand Commander of the Zimbabwe Order of Merit, President of Zimbabwe and Commander-in-Chief of the Defence Forces of Zimbabwe.

WHEREAS, it is provided by section 3 of the Referendums Act [Chapter 2:10] that, whenever the President considers it desirable to ascertain the views of voters on any question or issue, he may by proclamation in the Gazette— ­­  

    (a)  declare that a referendum is to be held in order to ascertain the view of voters on that question or issue;  and

    (b)  appoint a day or days for the holding of the referendum; and

     (c)  state the hours at which voting for the purposes of the referendum will commence and will close;

AND WHEREAS, by Article VI of the Global Zimbabwe Agreement (the provisions of which are embodied as the “Interparty Zimbabwe Agreement” in Schedule 8 to the Constitution of Zimbabwe), the Committee on Standing Rules and Orders of Parliament appointed the Constitution Parliamentary Select Committee on the drafting of a new constitution for Zimbabwe (referred to as “COPAC”) on the 12th April, 2009, which consisted of certain Zimbabwe of Parliament from the political parties that participated in the Global Zimbabwe Agreement and a representative of the Council of Chiefs who sits in Parliament:

AND WHEREAS COPAC duly prepared a draft Constitution for Zimbabwe, under cover of a report that was tabled before Parliament on the 6th and 7th February, 2013, and adopted by Parliament;

AND WHEREAS I consider it desirable to ascertain the view of voters on whether or not the said draft Constitution, should be enacted as the Constitution of Zimbabwe;

AND WHEREAS it is the function of the Zimbabwe Electoral Commission to conduct referendums in terms of section 100C of the Constitution of Zimbabwe:

NOW, THEREFORE, under and by virtue of the powers vested in the President as aforesaid, I do, by this my proclamation—

    (a)  declare that a referendum is to be held in order to ascertain the view of voters on whether or not the draft Constitution which is published in a Gazette Extraordinary together with this Proclamation should be adopted as the Constitution of Zimbabwe;

    (b)  appoint Saturday, the 16th March, 2013, as the day on which the referendum will be held; and

     (c)  state that, on the day on which the referendum is held, voting at polling stations will commence at seven o’clock in the morning and close at seven o’clock in the evening.

Given under my hand and the Public Seal of Zimbabwe at Harare, this fourteenth day of February, in the year of Our Lord two thousand and thirteen.

                                                                                        R.G. MUGABE

                                                                                                President.

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