A number of people have enquired about the issue of voting rights of Zimbabwean citizens currently living abroad, the Diaspora, as they are often referred to. The issue itself is usually described as the Diaspora vote. With the growth of the citizens movement under #ThisFlag hashtag and the active involvement of the Zimbabwean Diaspora on social media. Many people have begun to ask whether they can exercise their right to vote. The answer to this question is by no means straightforward, hence this analysis.
In this article, I analyse the law and politics relating to this important and topical issue. This article analyses the constitutional position regarding the Diaspora vote and concludes that Zimbabweans in the Diaspora have a legitimate and constitutional right to participate in national elections, particularly the presidential election. I also argue that it is in Zimbabwe’s best interests to take a more inclusive approach towards its migrant population, and promoting its participation in political processes such as voting is one of the critical ways of this inclusive agenda.
However, before I present the constitutional and economic rationale for this argument, I must give a short background to the phenomenon of the Zimbabwean Diaspora and how it has grown in huge strides in the past decade and a half. This is necessary for context, but it will also benefit readers who are not familiar with the Zimbabwean political question.
The Zimbabwean Diaspora
Figures on the number of Zimbabweans living in the Diaspora are a subject of speculative estimation as no robust scientific study has really been conducted. This is made more difficult that a significant number of Zimbabweans outside the country remain undocumented and operate in the sub-economy of their host countries. What is known, however a large number of Zimbabweans began to leave the country at the turn of the Millennium, when the country began to experience serious signs of political and economic crisis. By far the largest number reside in South Africa, with Botswana and Namibia also hosting fair percentage among the neighbouring countries. Overseas, most Zimbabweans settled in the United Kingdom, Canada, Australia and the US. Those countries were attractive not just for the opportunities they offered to a highly educated Zimbabwean population, but the ease of language and shared cultural aspects on account of historical ties also made such environments easier to settle in. Of course, there is also a fair number of Zimbabweans that have settled in mainland Europe.
Some of the migrants were political refugees, fleeing persecution in Zimbabwe, whilst a significant number were economic migrants, forced to migrate in search of better economic opportunities after Zimbabwe’s economy began to implode post-2000. When many of the migrants left in the early days, they hoped to return home. They invested in home-building and other small businesses. Over time, most have settled in their host countries, and for economic reasons, have acquired new citizenship. Nevertheless, the majority have retained close links with Zimbabwe, where most of their extended families still reside.
Like most migrant communities around the world, the Zimbabwean Diaspora have their feet in both the host and home countries. They remain alive to and do participate actively in the political and economic affairs of Zimbabwe and collectively, have become one of the biggest foreign currency earners to the Zimbabwean economy. This role has grown more visibly in recent years due to the advent and popularity of social media, which has reduced differences both in time and space.
The Zimbabwean Diaspora was initially dismissed and derided by the government, with President Mugabe making some caustic and derogatory comments in the early years. This was largely because most migrants were viewed as opponents of government. Now, however, the government appreciates the critical role of the Diaspora and has been making efforts to lure them. In recent weeks, the government announced that it had adopted a Diaspora policy, a significant indication of the fact that the government now takes the role of the Diaspora more seriously than before.
Nevertheless, of concern to the Diaspora is the missing element in the official narrative in respect of the question of political representation of the Diaspora. This is one of the key demands which the Diaspora has been raising for many years. However, government has paid no attention to this demand and consequently, the Zimbabwean Diaspora remains disenfranchised unless one travels to Zimbabwe during elections. It is in this context that I discuss the constitutional position on the Diaspora right to vote in national elections.
Dual Citizenship
Before I discuss the Diaspora, I must first clear the issue of dual citizenship, which was one of the key demands during the constitutional reform process. I participated in that process as an adviser to COPAC, the parliamentary committee which led the constitutional reform project and I know it was a hotly contested issue. I used my vantage position to advocate for the recognition of dual citizenship. Although there was a lot of opposition, in the end, the principle of dual citizenship was recognised and protected in the Constitution. I have previously written on the issue of dual citizenship.
The short position is that Zimbabweans who are citizens by birth have absolute rights to dual citizenship. The only citizens in respect of whom it may be limited are citizens by descent or by registration, but even then Parliament is not obliged to ban dual citizenship.
Therefore, one of the key demands of the Diaspora was disposed of: dual citizenship is recognised and the Constitutional Court has already ruled at least twice, that this is the case. What would be even better is for Parliament to move further and remove any restrictions for citizens by descent and registration. The remaining issue which needs discussion is the demand in respect of the right to vote.
The right to vote
The first point of reference is section 67 of the Declaration of Rights in the Constitution. It is the provision which guarantees political rights of all Zimbabwean citizens. Secton 67(1) provides that:
“Every Zimbabwean citizen 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”.
In addition, section 67(2) provides a list of political rights which include the right to participate in peaceful political activity and to form, to join and to participate in the activities of a political party or organisation of their choice. In other words, every citizen has the right to take part in politics and to be a member of a political party or organisation.
More pertinently, section 67(3) provides that every citizen who is at least 18 years old has the right to vote in secrecy in all elections and referendums. They also have the right to present themselves as candidates in all elections. This provision clearly guarantees the right to vote. The provision does not make a distinction between citizens based in Zimbabwe and other citizens based in other countries. Indeed, the Electoral Law already recognises that citizens working for the state but based in foreign countries are entitled to vote using the postal ballot system. The fact that they are outside the country is not a reason to bar them from exercising their right to vote. Of importance here is that the main standard section 67 reaffirms the right of every citizen to vote in elections. Everything else that regulates voting must therefore be measured against this standard. Electoral laws or any other rules must not derogate from this right in an unfair, unreasonable and undemocratic way.
It is important to note also that this right pre-dates the 2013 Constitution. Political rights in respect of voting were specifically included in the old Constitution through Constitutional Amendment No. 18 in 2008. Prior to that the Supreme Court had ruled against the Diaspora vote in a case brought by a group of Zimbabweans based in the UK just before the 2005 (Madzingo and others v Minister of Justice Legal and Parliamentary Affairs and Others SC-100-05). One of the grounds upon which Supreme Court dismissed the application was that the right to vote was not recognised as a fundamental right in the Constitution. This reasoning was flawed. One of the major outcomes of the liberation struggle upon independence was the recognition of universal adult suffrage. How could a Constitution which recognised universal adult suffrage be regarded as not recognising the right to vote? It was a poor judgment but its effect was to close the door on the Diaspora vote as far as the 2005 elections were concerned.
The matter came up again in the negotiations between ZANU PF and the MDCs which eventually culminated in Amendment No. 18 which made specific guarantees regarding the right to vote. Nevertheless, it was too late to deal with the Diaspora vote as the amendment was made not long before the 2008 elections. Afterwards, the Government of National Unity was in charge but it was a missed opportunity to take the matter further to ensure implementation. However, it was during this time that constitutional reforms were also taking place and issues pertaining to the Diaspora were debated, including dual citizenship and the right to vote.
State’s duty to eligible voters
Section 155(2) of the Constitution imposes an obligatory duty on the state to ensure that every citizen who is eligible to vote is registered as a voter and able to cast his or her vote. It states that the state must:
“… take all appropriate measures, including legislative measures, to ensure that effect is given to the principles set out in subsection (1) and, in particular, must–
- ensure that all eligible citizens, that is to say the citizens qualified under the Fourth Schedule, are registered as voters;
- ensure that every citizen who is eligible to vote in an election or referendum has an opportunity to cast a vote, and must facilitate voting by persons with disabilities or special needs”
This is an important provision which requires the state to ensure that every citizen who is eligible is able to register on the voters’ roll and to vote in elections. This makes it imperative to define the eligibility criteria. Are citizens in the Diaspora eligible to register and to vote?
Eligibility to register to vote
The rules on eligibility are specified in the Fourth Schedule of the Constitution. Section 1 of this schedule provides that a person is eligible to be registered if he is a Zimbabwean citizen of 18 years old.
However, sub-paragraph 2 of the same schedule states that the Electoral Law may impose additional residential requirements to ensure that persons are registered on the most appropriate voters’ roll. It states as follows:
“The Electoral Law may prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll, but any such requirements must be consistent with this Constitution, in particular with section 67.”
This is an important qualification which means residential requirements may be included in the Electoral Law, as a condition for registration. However, it is important to note that this is NOT mandatory. In other words, it is not an absolute requirement that the law must include residential requirements. Furthermore, the purpose of such additional residential requirements is very clear: it is to ensure that persons are registered in the most appropriate voters’ roll. It is not to bar or prohibit persons from exercising their constitutional right to register to vote.
The residential requirement does not abrogate the fundamental right to vote which is protected under section 67 and as is clear, any residential requirements must be consistent with the Constitution, in particular section 67. What this means is that any residential requirements must help in the fulfilment and not derogation of the right to vote which is due to every citizen. As we have already observed, section 67 does not discriminate between citizens within Zimbabwe or abroad. Any residential requirement imposed under legislation must not erode this right in respect of Zimbabweans in the Diaspora. At most, where they are adopted, any such residential requirements must be reasonable. Requirements which erode the right to vote would be unconstitutional.
Current law
The problem at the moment is that Electoral Law imposes residential requirements which work to the exclusion of the Zimbabwean Diaspora. Therefore, while there is an arguable case for the constitutional rights of every citizen, including the right to register and to vote, current legislation is unduly restrictive as it only caters for local residents. Indeed, the proof of residence requirements is one of the most controversial issue in voter registration process as most eligible voters have been disenfranchised simply because they have not been able to produce the documents demanded by ZEC.
The location of voters during elections is not the issue. As already pointed out, the Electoral Law already permits voters who are outside the country to vote using the postal voting system. There is no reason why the state cannot provide facilities to extend voting rights to Zimbabweans similarly residing in the Diaspora. The key question is to ensure there are sufficient safeguards to minimise the risk of vote rigging.
Citizenship rights
The provision of the Diaspora vote is also consistent with the full recognition of citizenship rights as provided for under Chapter 3 of the Constitution and freedom from unfair discrimination under the Declaration of Rights. In terms of section 35(2) of the Constitution, all citizens “are equally entitled to the rights, privileges and benefits of citizenship …” One of the important rights attached to citizenship is the right to vote. As I have already pointed out, dual citizenship is recognised in the Zimbabwean Constitution. This means Zimbabwean citizens abroad are entitled to the same rights, privileges and benefits of citizenship, which include the right to vote. The principle of non-discrimination between citizens is also recognised in section 56(3) of the Constitution, which provides that every person must be treated equally before the law and must not be treated in an unfairly discriminatory manner. Furthermore, section 56(1) guarantees equal protection and benefit of the law to all persons.
Overall, I would argue that the Diaspora right to vote has a strong and firm foundation in our Constitution. When the Supreme Court dismissed the Diaspora vote in the Madzingo case in 2005, it was on the basis that the Constitution at the time did not recognise the right to vote. However, the situation has since changed, with the right to vote being specially included in the Constitution in 2008 and further clarified and fortified under the 2013 Constitution. The Constitutional Court has already confirmed that the 2013 Constitution protects dual citizenship for citizens by birth. It is important to recognise the full benefits of citizenship, including the fundamental right to vote, which is guaranteed under section 67 of the Constitution.
Retention of citizens in the era of globalisation
However, beyond the legalities, there is also an important economic rationale for recognising the Diaspora vote. Government acknowledges that the Diaspora have become one of the top foreign currency earners for the country. The remittances they send home to relatives and for projects are providing an important lifeline to Zimbabwe. There is huge potential for the Diaspora contribution in future, if this key constituency is properly harnessed. However, the Diaspora has to be included in the country’s political and economic processes. There has to be inclusiveness. One way to do so is to provide mechanisms for political participation and the right to vote is acritical in this regard.
Globalisation has made movement of people, goods and services easier and more rapid across national boundaries. It is not surprising that with a huge investment in education, one of the early successes of Mugabe’s rule, Zimbabwe has a well-educated and highly skilled population whose services are much sought after in other countries. These countries are happy to absorb them and given them citizenship because they have skills to offer. However, this globalised world presents some comparative unfairness on developing countries, such as Zimbabwe where taxpayers would have subsidised the education and training of those professionals, whose skills go on to benefit other countries.
Since developing cannot legally impose bans on citizens’ freedom of movement to other countries, it is important to create mechanisms to retain strong connections with them wherever they go. Allowing them to participate in national affairs, including recognition of their right of representation through the vote is an important way of keeping hold of Zimbabwe’s migrant population. If they participate in national affairs, wherever they may be, they are more likely to retain a lasting interest in the country and therefore to plough back benefits from the Diaspora.
In short, it makes economic sense for Zimbabwe to adopt a more inclusive voting system which includes rather than excludes its Diaspora population.
Politics of the Diaspora vote
One of the reasons for the resistance against the Diaspora vote by some of the political actors is lack of confidence in the Diaspora constituency. In particular, the ruling party, ZANU PF has always been suspicious that Zimbabweans in the Diaspora are opposition supporters. This, of course is not necessarily true, as evidenced by the fact that there are ZANU PF structures in countries like the UK. Still, despite the existence of these structures, ZANU PF holds the fear that the bulk of the Diaspora would boost opposition support. On the other hand, while opposition parties have been vocal about the Diaspora vote, it is not an issue that has been pushed more vigorously. The one fear they seem to hold is that without adequate checks and balances the facility could easily be abused for rigging purposes. There has always been a suspicion that postal voting system is abused. The result is that parties have not pushed hard enough for the Diaspora vote.
Regional trends
Zimbabwe is already lagging behind fellow SADC countries such as South Africa and Mozambique. The courts in South Africa ruled that the government had an obligation to ensure that all voters, including those abroad were able to participate in national elections. Mozambique has been providing facilities for Mozambicans in the region and in the former colonial power, Portugal to vote in national elections. It should be logistically possible for Zimbabwe to extend the Diaspora vote to Zimbabweans with the SADC region, focusing on the zones of high concentration, like South Africa, Botswana and Namibia for example. Overseas, I can think of zones of high concentration of Zimbabwean would be the UK, Australia, New Zealand, Canada and the US. There could be a facility provided in mainland Europe. If this is to work, ZEC would obviously need to mobilise resources first for voter registration and then for the actual voting itself and this is where those who have supported Zimbabwean electoral systems through the UNDP need to step in.
Conclusion
I have argued that Zimbabwean citizens in the Diaspora have a constitutional right to vote and to participate more generally in national affairs. These fundamental rights are guaranteed in the Constitution. The residence requirement does not and should be used to abrogate this fundamental right. I have also argued that apart from the legality question, granting the right to vote also makes economic sense for Zimbabwe in the long run. In the highly competitive global environment, Zimbabwe needs a policy that ensures retention of linkages with its migrant population. Promoting political participation is one way of enhancing these linkages between the home country and its migrant population. Finally, I have also argued that facilitating the Diaspora vote would also be consistent with regional trends, as exemplified by the example of Mozambique, our Eastern neighbour which already allows its Diaspora population to vote.
Wamagaisa
