Referendum in May 2011?

Under the GPA the parties agreed that within three months after COPAC had completed its outreach programme a draft constitution would be prepared and presented to a second All-Stakeholders Conference, and one month later would be laid before Parliament for debate; Parliament would have one month within which to debate the draft, and then within three months the draft would be gazetted and put before the electorate in a referendum. In anticipation of this, the Minister of Finance has reportedly been instructed to set aside one hundred million dollars in the coming budget to pay for the referendum.

The referendum, whenever it takes place, will be held in terms of the Referendums Act and the regulations made under the Act. What do the Act and the current regulations say about referendums, and should the Act be amended and/or should the regulations be amended or replaced to enable the constitutional referendum to take place satisfactorily?

The provisions of the act

The President has power to call a referendum, to state the question to be put to voters at the referendum, and to fix the dates and times of polling. In exercising these powers, the President must act on the advice of Cabinet

Anyone who can satisfy the presiding officer of a polling station that he or she is an adult and eligible to be registered as a voter on the voters roll is entitled to vote at a referendum.

Voters rolls are not to be used in referendums for the purpose of identifying voters, unless the Registrar-General, now presumably the Zimbabwe Electoral Commission [ZEC] directs that they must be used.

Ballot papers at a referendum state the question that is being put to the voters, and immediately below the question there are two rectangles where voters can put a cross opposite the words Yes and No. The question must therefore be stated in such a way that voters can answer it with a yes or a no.

Votes are counted by returning officers [impliedly at constituency centres] and the results forwarded to ZECs Chief Elections Officer. The Act does not envisage the procedure currently employed in elections under the Electoral Act, whereby votes are counted at polling stations, then collated and verified at constituency centres and [in the case of presidential elections] finally collated at a national centre.

After the votes have been counted in a referendum, the Minister of Justice, not ZEC, must be told of the result, and it is the Minister, not ZEC, who must publish a notice in the Gazette announcing the result.

Section 9 of the Act allows an appeal to the Electoral Court against the acceptance or rejection by a returning officer of votes in regard to which there has been a dispute between the returning officer and an aggrieved party. As there are no equivalents to election agents in a referendum, it is difficult to see who there would be to disagree with the returning officers decision other than observers and they could hardly be aggrieved parties to lodge an appeal. No appeal is allowed on any other ground.