DO ZIMBABWEANS IN THE DIASPORA HAVE THE RIGHT TO VOTE IN ELECTIONS?

 

Alex T. Magaisa

Having dealt with the issue of dual citizenship yesterday, it is logical that we complete the circle with an analysis of how the Final Draft Constitution deals with the issue of voting rights of Zimbabweans based abroad or the “Diaspora Vote” as it is commonly referred to. This has been a contentious issue. In many ways, it formed the basis of opposition to dual citizenship, until the two issues were successfully separated and dealt with on their own merits.

But does the Final Draft allow the Diaspora Vote? To this question, the answer is regrettably uncertain as it is dependent on a number of factors. (Excuse the formatting further down in the article. The words are in bold for no special reason other than that my wordprocessing skills have not been able to correct that bit!)

 

Current Position

So far, Zimbabwe’s Diaspora population has not been able to vote in elections. The state has not provided facilities to enable them to exercise their right to vote.  A challenge by a group of Zimbabweans in 2005 was dismissed by the Supreme Court on the grounds that the Constitution did not provide for the right to vote (Madzingo & Others v Minister of Justice and Others 2005 (1) ZLR 171 (S)). However, that decision was later overtaken by events.

Specific Recognition of the Right to Vote

First, a new Section 23A introduced via Constitutional Amendment No. 19 made specific reference to the right to vote. Following section 23A, Clause 4.24 of the Final Draft specifically provides for the right to vote in all elections.  The reasoning applied by the Supreme Court in the Madzingo case is therefore no longer applicable given that the right to vote is now specifically provided for in the Constitution.

Equality of Citizenship

This would seem to open the pathway for the Diaspora to exercise their right to vote. Indeed, Clause 3.1 (2) on citizenship in the Final Draft guarantees the equality of rights, benefits, privileges of citizenship to all citizens regardless of their location. This clause recognises the equality of citizenship in so far as entitlement to rights, privileges and benefits of citizenship is concerned.  In the Bill of Rights, Clause 4.24 (1)(a) and (b) which guarantee political rights states that “every citizen of Zimbabwe has the right to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law and to make political choices freely”. The right to make political choices freely arguably includes the right to vote. On this basis, taking into account the equality of citizenship regardless of location, it can be argued that Zimbabwean citizens in the Diaspora are entitled to the same voting rights as citizens based in Zimbabwe. One’s location should not be a barrier to the enjoyment or exercise of the right to vote.

The above interpretation would support the right of the Diaspora to vote in elections, as long as they remain Zimbabwean citizens. This is because the right to vote is a right that is attendant upon citizenship. Unfortunately, in what appear to be internal contradictions in the draft constitution, there appears to be a concerted effort to close the doors to the Diaspora vote.

Right to Vote is Conditional not Absolute

 

First, the right to vote in the Bill of Rights, provided for in Clause 4.24 (3) is not absolute but conditional since it is written “subject to this Constitution”. The use of these words, “subject to this Constitution” as a preface to the right to vote imply that the right to vote is conditional upon other provisions in the Constitution.  In other words it is not an absolute right and may be limited. Yet when one considers that the right to vote was at the core of the struggle for independence and adult suffrage is such a universally recognised right, one would expect it to be one of the most absolute rights from which there should be no derogation whatsoever.

The first of these limitations is the General Limitation Clause (4.43) which applies to all rights in the Bill of Rights except the ring-fenced rights from which there can be no derogation. Nevertheless, it could be argued that denying the Diaspora Vote would not be fair, reasonable, necessary and justifiable in an open, just and democratic society, which is the standard that any derogation must satisfy.

Implications of the “Residence” Qualification

However, there are other gaps that leave room for the denial of the Diaspora Vote and the key one is the residence requirement.  There is certainly room to prohibit the Diaspora Vote on the grounds of residence. The Fourth Schedule of the draft Constitution states in Clause 1(2) that an electoral law may prescribe “additional residential requirements” to guide the registration of voters.  This is essentially similar to what is in Schedule 3 of the current Constitution which makes the qualification for registration as a voter “subject to residence qualifications as may be prescribed in the Electoral Law …”

The net effect of this is that residence qualifications may be prescribed in the Electoral Act, limiting the exercise of the right to vote only to Zimbabweans within the country, thereby excluding the Diaspora. It is regrettable that the draft Constitution repeats the caveat of residence to the right to vote, which could be used to deny the Diaspora Vote on the technicality of residence. A legal argument could be made however, that a limitation in a schedule cannot trump a substantive right provided for in the Bill of Rights.

What is interesting is that by comparison, the original draft Constitution did not make specific reference to additional “residential” requirements. It merely referred to additional requirements, which would have been a slight improvement on the current Constitution. The effort made in the Final Draft to include the word “residential” to the additional requirements suggests a predilection towards limiting the right to vote on the basis of residence. If implemented, it would be fatal to the rights of Zimbabwean citizens in the Diaspora.

This specific addition of the word “residential” fits into a disturbing pattern of trying to exclude citizens on the basis of residence. It will provide justification to the Electoral Act’s prohibition of registration of voters on the basis that they are not ordinarily resident in Zimbabwe.

This specific addition of the word “residential” fits into a disturbing pattern of trying to exclude citizens on the basis of residence. It will provide justification to the Electoral Act’s prohibition of registration of voters on the basis that they are not ordinarily resident in Zimbabwe.

Potential Limitation in Presidential Elections

The potential discrimination of the Diaspora is extended by a provision on the election of the President. Clause 5.5(3) states that the Presidential candidates and his or her two running-mates must be “directly elected by registered voters throughout Zimbabwe”. The phrase “throughout Zimbabwe” appears to imply that the registered voters must be in Zimbabwe at the time of voting. If this is the intended construction of the clause, it will clearly bar the Diaspora vote in Presidential elections. That this is the intended effect would seem to be borne out by the negotiating history of this clause:

This phrase was in the initial versions of the draft Constitution. It was removed precisely because of its potential to exclude eligible voters from voting in the Presidential elections and would therefore be contrary to Clause 4.24 of the Bill of Rights which guarantees the right to vote. However, the phrase has reappeared in the Final Draft suggesting very strongly, unless it is a glaring drafting error, that the intended effect is to limit the Presidential election only to citizens who are in Zimbabwe, excluding citizens who are outside the country.

In any event, there is a contradiction between two constitutional clauses in that Clause 4.24 guarantees the right to vote whereas Clause 5.5(3) by limiting the vote to registered voters “throughout Zimbabwe” would deny the right of citizens who are not in Zimbabwe at the time of voting.

 

Conclusions and Recommendations

It is important to make clear provisions that guarantee the right to vote in Presidential elections to all citizens regardless of residence. The maximum qualification to vote in a Presidential election should simply be citizenship. The right should not be made subject to residence qualifications. It is understandable that for constituency-based and ward-based elections in parliamentary and council elections it is necessary to have residence qualifications in those constituencies or wards. However, in a Presidential election, residence should not be a determining factor. It would be far better if it were clear that all citizens are entitled to registration and to vote in Presidential elections.

waMagaisa (2012)

This information reflects my personal views and not the views or opinions of any person or organisation with whom or which I may be remotely associated. Anyone who wishes to use this information commercially or otherwise, should seek my express permission prior to using it, and may be asked to make a modest contribution to charity for use of this material. Email: wamagaisa@yahoo.co.uk