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."
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:
(see full details on these points later in post)
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."
Why the 16th March Referendum Date is Totally Unreasonable
Referendums Act and regulations out of date
The Referendums Act and its regulations still need to be updated, to bring them into line with last year’s amendments to the Electoral Act, which were the product of agreement between the GPA parties [more detail on this in Part II]. The Zimbabwe Electoral Commission [ZEC] has been working on, but has not finalised, its draft regulations and then they will have to go through the Minister of Constitutional and Parliamentary Affairs for approval before they can be gazetted.
ZEC not consulted about date and not ready
ZEC was not consulted before the 16th March was decided on. ZEC members and staff only learned about the date unofficially or from the press. It is astonishing that a date has been fixed without considering whether or not the body responsible for the Referendum will be able to do what is necessary within the period allowed. Had those making the decision forgotten – or not been told – that ZEC has consistently said it needs 60 days lead time before polling if they are to conduct a credible poll? Minister Matinenga’s statement when announcing the date and the impending proclamation made it clear that, as Minister responsible for the Referendums Act, he thought a later date than 16th March was advisable.
ZEC without chairperson
ZEC’s chairperson since it was appointed in 2010, Justice Mtambanengwe, resigned suddenly on 12th February. The appointment of a replacement requires prior consultation with the Parliamentary Committee on Standing Rules and Orders and the Judicial Service Commission, something that cannot be done in only a few days. The lack of a substantive chairperson is a serious handicap for ZEC. Even if a new chairperson can be speedily appointed, two or three weeks will not be enough for him or her to master the job in time to play a meaningful and effective part in managing a Referendum held on 16th March.
[Note: The current Acting Chairperson, long-serving and experienced Commissioner Joyce Kazembe, cannot be appointed as chairperson, because she does not have the qualifications required by the Constitution – she is neither a judge or former judge, nor qualified to be a judge.]
Finance promised – but not available yet
Not the least of ZEC’s difficulties is funding. The Government is responsible for funding ZEC, but Minister of Finance Biti has said all along that the Government does not have the necessary resources and will require outside assistance. Although the donor community has promised funding in principle, donors have queried the ZEC budget and have not yet released any funds. [It has been pointed out that in Kenya, with a population nearly four times Zimbabwe’s, the 2010 constitutional referendum cost $300 million, and the amount ZEC has sought for our referendum is $250 million]. Donors may be reluctant to fund a process that is not only grossly over budgeted, but, in view of the short time given to study it, cannot be seen as a genuine attempt to ascertain what the people really think about a draft constitution that is claimed to have been people-driven. The crisis over funding is underlined by a report in yesterday’s State-controlled Sunday Mail of an announcement by Presidential spokesman George Charamba that the principals have now authorised Deputy Prime Minister Mutambara to spearhead an initiative to raise the entire $250 million locally. How can ZEC be expected to make satisfactory arrangements against this background?
ZEC’s other pre-polling needs
Need to hire temporary polling station staff If ZEC cannot be confident about the funding of the Referendum, it is likely to have problems recruiting the thousands of reliable individuals it will need to hire as temporary staff to actually run things on the ground at polling stations. At election time the custom has been for the electoral authorities to use civil servants and teachers, meaning there is a body of individuals relatively experienced in polling station routines. But those individuals will want meaningful assurances about their allowances for this special assignment, and will be very conscious of the Government’s miserable record over payment of allowances to temporary staff taken on for previous elections and for the 2012 National Census. They have a recent precedent in the concerns over allowances expressed by MPs asked to assist COPAC in explaining the draft constitution to their constituents.
Clash with school term 16th March falls within the first school term. So a Referendum on that day would be likely to cause further disruption in an already troubled education system. School premises round the country are customarily used to house polling stations and although polling day may be a Saturday, the absence of teachers for pre-poll training and the setting-up of polling stations ahead of polling day would inevitably disrupt teaching duties.
COPAC and Ministry outreach exercises not off the ground
COPAC’s promised outreach exercise will only start today. It is printing only 70 000 copies of the draft for the whole country. Its promised translations of the draft into eleven indigenous languages and into Braille are not yet ready and are still to be produced and distributed. The Ministry of Constitutional and Parliamentary Affairs has announced that it will conduct a mere two “advocacy meetings” on the draft in each of the country’s ten provinces.
Importance of Accommodating ZEC
The Referendum will be the first countrywide voting process to be conducted by ZEC since it was set up as a constitutional commission in early 2010. ZEC must be given every chance to run the Referendum well to enable it to build up experience and establish its credibility as an independent and impartial body. Any mistakes or inadequacies in the Referendum process will affect ZEC‘s credibility and reflect adversely on its capacity to handle its next big test, which will be the coming elections. To handicap ZEC by requiring it to conduct an acceptable Referendum exercise in less than half the time it has said it needs, is to run the risk of a botched process – and to imperil the chances of an election result that will be widely accepted later in the year.
Civil Society Objections
The Prime Minister told a meeting of civil society organisations earlier in the week that the Referendum would be “at the end of March”. The organisations were unanimous in their objections, stressing the need to allow voters sufficient time for proper consideration of the draft in order to reach an informed decision, and the danger that any semblance of bulldozing would destroy the credibility of the Referendum result. The Prime Minister said representations for an extension might persuade the principals to allow more time for activities to familiarise voters with the draft constitution. It should also be remembered that Minister Matinenga said on 13th March that the 16th was a “tentative” date.
National Constitutional Assembly [NCA] The NCA said early on that it would go to court unless a period of two months was allowed before voting in the Referendum. As soon as the Government Gazette was released on 15th February NCA chairperson Lovemore Madhuku, who had already condemned the 16th March date as “nonsense” and “meaningless”, confirmed that NCA lawyers had been instructed to go ahead with the organisation’s High Court case to overturn the Referendum proclamation for unreasonableness; the papers would probably be filed today, Monday 18th February.
Zimbabwe Election Support Network [ZESN] A respected organisation with years of experience in observing elections in Zimbabwe and other countries, ZESN said in an official statement that the fixing of so early a date “raises serious concerns about citizens having a meaningful opportunity to learn about the draft constitution and to make an informed choice. The date also raises questions about the Zimbabwe Electoral Commission (ZEC) having sufficient time to organize a credible referendum consistent with laws of Zimbabwe as well as Southern African Development Community (SADC) and international principles and guidelines”. The statement also stresses the need for the speedy appointment of a credible ZEC chairperson. [Full statement available from email@example.com or firstname.lastname@example.org.]
Other major civil society networks and coalitions such as NANGO and Crisis Coalition representing most of the civil society organisations involved in educating the people about the constitution, have also said that 16th March is much too early. It takes money and organisation to reach constituents in rural areas, police notification permission has to be obtained, etc. And they have a big job to do unpacking the draft for the people, as the COPAC and Ministry initiatives are inadequate.
Note: In Kenya the voters had four full months to consider the draft constitution before voting on it at the Referendum held in August 2010.
Is the Haste over the Referendum Merely to Pave the Way for Elections?
Of course we need the Referendum to pave the way to elections. And it is one of the SADC conditions for their recognition of the outcome of the next elections. But the nation's constitution is too important to cut the time necessary for proper considerations before the Referendum just to speed up elections. This would strengthen the perception, engendered by taking so many of the real decisions away from the Parliamentary Select Committee to first the Management Committee [mostly the Party negotiators] and then to the Principals’ Committee, that the draft serves the interests of the political parties rather than reflecting the views of the nation. This would negate a feeling of ownership by the people.
No time for proper study by the people for Zimbabwe the people
The preamble to Article 6 of the GPA, which sets out the parties’ agreement on the constitution-making process, commences with the following ringing words: “Acknowledging that it is the fundamental right and duty of the Zimbabwean people to make a constitution by themselves and for themselves; Aware that the process of making this constitution must be owned and driven by the people and must be inclusive and democratic”. In Part I it was pointed out that the GPA envisaged about three months between the gazetting of the draft and the Referendum
No time for proper study by civil society
And yet COPAC has asked civil society to partner it in getting the draft out to the people.
The three political parties involved in the process see it as step to elections
All three GPA political parties have since the 17th January sold the draft to their supporters by saying that the constitution will be changed when they are in power.
ZANU-PF – President Mugabe confirmed very recently that ZANU-PF intends to overhaul the new constitution if it wins the election.
MDC – Welshman Ncube said shortly after the 17th January that when MDC wins the election it will revisit the question of devolution.
MDC-T – has said that when they are in power they will alter the constitution.
[Note: This indicates a certain cynicism as all three parties envisage changes that will suit their particular party. Can any of them be that optimistic as to think they will get the a 2/3 majority in both Houses of Parliament which is what is needed to amend the new Constitution?
Other political parties – excluded
All have expressed dissatisfaction with being left out of consultations [remember that the leader of Mavambo/Kusile/Dawn, Simba Makoni, got 7% of the peoples’ vote in the last Presidential election. ZAPU has expressed “reservations” indicating a marked lack of enthusiasm. How can they be expected to come on board to promote it in less than one month.
Zimbabweans Should Not be Stampeded into Voting
For people to accept the draft as their future constitution more time is needed. Zimbabweans want to thoroughly examine it make an informed decision ahead of the Referendum on whether it “captures their dreams and hopes, guarantees civil liberties, and economic rights, and above all, entrenches and enhances democracy through freedom of the media and expression.” Politicians should listen to the demand for more time. They “ must be subservient to the electorate, not vice versa.” [Quotes from Newsday editorial, Monday 18th February 2013]. And the Zimbabwe Electoral Commission need a fair chance to do a good job and gain credibility before the difficult and crucial task of organising our next elections.