In a recent judgement, a fellow “son of the soil” was denied being on the ballot, the basis of which being non-compliance with the “residence requirement” as provided for in the Act. It was a very painful experience, I suppose: a denial to the feeding trough, after parting with a fortune in nomination fees. A fortune, yes it is, in the eyes of an ordinary Zimbabwean of frugal means. The allegations were that he has been away from his constituency for more than 18 months thus therefore cannot be a registered voter. He has been a fugitive since the 2017 soft coup and rumours are that he is now domiciled in the neighbouring South Africa. In short, in the aforesaid matter the Honourable Court held that those in diaspora can be disenfranchised of their political rights and that the disenfranchisement is legal. Is this the correct position of law? If it is, is the law still relevant regard being had to fact that Zimbabweans are all over the world mainly as economic refugees. In other words can the political rights of those in diaspora be legally taken away, if so, whether this is still justifiable?

Section 67 of the Constitution of Zimbabwe gives political rights to every adult citizen. Subsection (3) provides that every Zimbabwean citizen who is of or over eighteen shall have a right to vote or be voted for. This provision has to be read together with the 4th Schedule to the Constitution which provides further qualifications for a voter. It therefore follows that the right to vote or to be voted for does not rest entirely on citizenship and age. Some other qualifications have to be considered.

Paragraph 1(1) echoes the same sentiments as section 67(3). The more relevant provision is paragraph 1(2) which provides that;

“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 s 67.”

By this, the Constitution defers to the Electoral Act the task to elaborate more on residential requirements. The additional residential requirement as envisaged in the Constitution is provided for in section 23(3) of the Act which provides that

“A voter who is registered on the voters roll for a constituency, other than a voter who has been registered in that constituency in terms of the proviso to subsection (1), shall not be entitled to have his or her name retained on such roll if, for a continuous period of eighteen months, he or she has ceased to reside in that constituency: Provided that nothing in this subsection shall prevent his or her name from being struck off such voters roll—

(a) on his or her being registered in another constituency; or

(b) if he or she becomes disqualified for registration as a voter.”

Above provisions make the complete code as regards residential requirements. The provisions must to be read together.

Those in support of diaspora vote argue that the Constitution provides for diaspora vote. In the case of Gabriel Shumba and 2 Others v Minister of Justice, Legal & Parliamentary Affairs and 4 Others CCZ4/2018 Advocate Mpofu contended that rights given by section 67(3) does not depend on anything other than citizenship and age. He further argued that anyone who is not disqualified in terms of the 4th schedule is entitled to vote. In the other words he argued that every adult Zimbabwean citizen, not disqualified as aforesaid, is entitled to political rights, notwithstanding their location, even those in diaspora. The argument seems to be in tandem with section 35(2) of the Constitution that provides that all Zimbabwean citizens are equally entitled to the rights, privileges and benefits of citizenship and are equally subject to the duties and obligations of citizenship.

The Honourable Court however held that the right to vote and be voted for is not absolute. Section 67 for instance is prefixed with “Subject to this Constitution.” This means that this provision shall be read together and cohere with other provisions of the Constitution, including but not limited to the 4th Schedule that provides for additional residential requirements. The position of law is that all relevant provisions in a statute that deal with the subject for interpretation must be considered together. See Tsvangirai V Mugabe & Others, CCZ 24/17.

Further, the Court highlighted the law as it was pronounced in the case of Bukaipenyu v ZEC Chairman & OrsCCZ 12/17, that;

“Under the Zimbabwean electoral system, a voter votes not only as a citizen of this country but also to protect his or her rights and interests as a resident of the constituency in which he or she is registered”

From the above, it is clear that the electoral system in Zimbabwe is Constituency-based. This transcend all categories, Presidential, Parliamentary and local authorities. This has been the position even with the 1980 Constitution. In the case of Registrar General of Elections & Ors v Morgan Tsvangirai 2002 (1) ZLR (S) the court found that electoral authorities are not under a legal duty to provide machinery in foreign countries to record votes of Zimbabwean citizens registered as voters who live there and are unable to attend personally at polling stations in their constituencies on polling day. The Court further argued that there is presumption that the Legislature will be very alive to the current position of law when they make new laws. Thus, in making the 2013 Constitution, it is presumed the Parliament was aware of the law as regards diaspora vote but failed to put express provisions to the contrary. This was interpreted to mean that the Parliament never intended to provide for the diaspora vote.

Only a small group of people as provided for in section 72 of the Act are an exception from the residence requirement. These are people under the employ of the state who would have moved away from their constituency through deployment. These people vote thorough postal voting system.

This is the current position of law. However this law is facing a litany of challenges from a number of perspectives. Section 23(3), in a number of cases including the Kasukuwere case, has been challenged on the basis that it is not consistent with the Constitution. Others propose that section 72 of the Act be extended to everyone who wants to vote or be voted for but are, for any reason, absent from their constituency. Some argue that section 72, in its current form is discriminatory and therefore unconstitutional. Recently section 23(3) was challenged on the basis that it impinges on the freedom of movement and residence. Internationally, the residence requirement infringes, among other international instruments, article 13 of the African Charter.

From the economic perspective Zimbabwe is getting a lot of money through diaspora remittances. In 2021, about 1.4 Billion Dollars was received in remittances. The figure went up to 1.66 Billion Dollars in 2022. These are significant figures, why then deny people in diaspora the right to vote or be voted for yet they are contributing so much to the economy.

In short, the law is archaic. The legislature must come in and change it. The only challenge with this is that a certain old party commands majority in the parliament. As the saying goes “you can’t change old people, unlike middle-aged people, they do what they want”. But is this Democracy?

Aleck Chikoro is a Legal Practitioner, Conveyancer and Notary Public, practicing law in Harare, Zimbabwe. He writes in his personal capacity. He is contactable on: Whatsapp-+263 777 026 105; email-aleckchikoro@gmail.com