In
this urgent chamber application the applicants seek a provisional order in the
following terms:
“FINAL
ORDER SOUGHT
That
the respondents show cause why a final order should be granted in the following
terms:
1.
It is declared that Proclamation No. 1 of 2013 issued by the 1st
respondent and gazetted on the 15th of February 2013 as Statutory
Instrument 19/2013 ...
In
this urgent chamber application the applicants seek a provisional order in the
following terms:
“FINAL
ORDER SOUGHT
That
the respondents show cause why a final order should be granted in the following
terms:
1.
It is declared that Proclamation No. 1 of 2013 issued by the 1st
respondent and gazetted on the 15th of February 2013 as Statutory
Instrument 19/2013 be and is hereby declared to be unlawful and ultra-vires
section 3 of the Referendum Act (Chapter 2:10).
2.
It is ordered that Proclamation No. 1 of 2013 issued by the 1st
respondent and gazetted on the 15th of February 2013 as
Statutory Instrument 19/2013 be and is hereby set aside.
3. 2nd
respondent and all those acting through him/her be and are hereby interdicted from
acting on S.I. 19 of 2013 and/or conducting a referendum on 16 March 2013.
4.
Respondents shall pay the costs of this application.
INTERIM
ORDER GRANTED
Pending
confirmation or discharge of the Provisional Order, the following interim
relief is granted.
1.
Proclamation No. 1 of 2013 issued by the 1st respondent and gazetted
on the 15th of February 2013 as Statutory Instrument 19/2013 be and
is hereby provisionally set aside.
2.
The Registrar of the High Court be and is hereby directed to set the matter
down for final determination on an urgent basis, and in any event before the 16th
of March 2013.”
The
background facts to this application are briefly as follows.
On
12 April 2009, Parliament set up a committee generally referred to as
COPAC. Its mandate was to collect the people's views on a new Constitution,
and, on that basis, come up with a people driven Draft Constitution. After
three and a half years of engagement in this process, a draft was finally
agreed on 17 January 2013. The Draft Constitution was subsequently adopted
by Parliament.
It
now awaits approval by the electorate in a referendum.
The
first respondent proceeded to publish, in the Government Gazette dated 15
February 2013, a proclamation in terms of which a referendum was to be held on
16 March 2013. In doing so, the first respondent acted in terms of section 3 of
the Referendums Act [Chapter 20:10] which reads:
“Referendum
Proclamation
Whenever
the President considers it desirable to ascertain the view 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;
(d)
…,. ”
It
is the applicants' view that the time set by the first respondent is “grossly inadequate
in light of the importance and complexity of the opinion being sought from
voters.” In particular, it is averred that at the time of setting of the
date no official copy of the Draft Constitution or translated or simplified
versions of the same had been published. It is further averred that by
setting the date of 16 March 2013 the first respondent acted arbitrarily,
irrationally, grossly unreasonably, and ultra vires the Referendums
Act [Chapter 20:10]. By acting in this way, it is argued that the first
respondent has denied citizens adequate time to study and debate the draft so
as to participate in the referendum from an informed position. For these
reasons, it is further argued that the resultant proclamation is subject to
review by the courts. The present application seeks, therefore, that this
court sets aside the date of 16 March 2013 and order the first respondent to
give voters no less than two months to read and analyse the Draft Constitution. The
applicant intends to campaign for a “No” vote. To that end, it will need
to distribute its objections to all potential voters, organise meetings,
debates and other forms of interaction with the electorate and
stakeholders. It avers that it cannot mount an effective campaign in the
time given.
The first respondent has opposed the application
solely on the basis of a preliminary issue, namely that the conduct of the
applicant in publishing the proclamation is not subject to review by the
judiciary.
