Part of Final Commonwealth Report

Extract from Pages 23-24 of; Commonwealth Final Report on 23rd Aug 2023 Elections

Zimbabwe Harmonised Elections 23 August 2023 FINAL REPORT {CLICK HERE FOR A COPY}

Published https://www.zec.org.zw/download/2023-harmonised-elections-report/ NOTE: the ZEC website has an expired security certificate {not renewed or paid for??}

Diaspora voting

Section 35(1) of the Constitution provides that persons are Zimbabwean citizens by birth, descent or registration. By Section 35(2), all Zimbabwean citizens are equally entitled to the rights, privileges and benefits of citizenship. By Section 67, every Zimbabwean citizen has the right to make political choices freely; by Section 67(3), every Zimbabwean citizen over the age of 18 years has the right to vote in all elections and to stand for election for public office and, if elected, to hold that office. By Section 86(2), those fundamental rights conferred by Section 67 may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society, and by a consideration of whether there are less restrictive means of achieving the purposes of that limitation.

By Section 155 of the Constitution, elections must be held regularly; be peaceful, free and fair; be conducted by secret ballot; be based on universal adult suffrage and equality of votes; and be free from violence and other electoral malpractices. By Section 155(2), 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’ and to ‘that every citizen who is eligible to vote in an election has an opportunity to cast a vote’.

Sections 92(4) and 125 of the Constitution provide that the qualifications for registration as a voter for the office of President or for the National Assembly (as the case may be) are those set out in the Fourth Schedule. The Fourth Schedule provides that, subject to disqualifications that may be prescribed by the Electoral Act, a person is qualified to be registered as a voter on the voters’ roll of a constituency if he or she is of or over the age of 18 years and is a Zimbabwean citizen. It further provides that the Electoral Act may prescribe additional residential requirements ‘to ensure that voters are registered on the most appropriate voters’ roll’ but that any such requirements must be consistent with the Constitution, particularly Section 67. By Clause 2 of the Fourth Schedule, certain categories of persons are disqualified to be registered as voters, being the mentally disordered or intellectually handicapped, persons incapable of managing their affairs as declared by an order of a Court or persons convicted of an offence under the Electoral Act and declared by the High Court to be disqualified for registration as a voter.

There is no distinction within any of these constitutional provisions between Zimbabwean citizens living outside Zimbabwe and those living within the country.

The requirement that a Zimbabwean citizen must reside in a particular constituency to be registered as a voter comes not from the Constitution but from Section 23 of the Electoral Act. Section 23(1) provides that, ‘subject to the Constitution and this Act, in order to have the requisite residence qualifications to be registered as a voter in a particular constituency, a claimant must be resident in that constituency at the date of his or her claim’. For the purposes of Subsection 1, a claimant shall be deemed to be residing in a constituency while he or she is absent therefrom for a temporary purpose. However, by Section 23(3), a voter who is registered on the voters’ roll for a constituency shall not be entitled to have his or her name retained on such a roll if, for a continuing period of 18 months, he or she has ceased to reside in that constituency.

Section 72 of the Electoral Act provides for postal voting. Where an election is to be held in a constituency, a person who is registered as a voter on the roll for that constituency shall be entitled to vote by post if, on all polling days in the election, he or she will be (a) on duty as a member of a disciplined force or as an electoral officer, (b) on duty in the service of the government outside Zimbabwe or (c) outside Zimbabwe as the spouse of a person referred to in (b).

The apparent tension between the constitutional provisions, most notably Section 67 of the Constitution and Sections 23 and 72 of the Electoral Act, was resolved unanimously by the Constitutional Court in Shumba & Ors v The Minister of Justice, Legal & Parliamentary Affairs & Ors [2018] ZWCC 4.^27[1] The applicants in this case were Zimbabwean citizens but not resident in Zimbabwe, and for various reasons were unable to travel to Zimbabwe to participate in the elections as voters. The Court held that Sections 23 and 72 of the Electoral Act were effective to qualify their right to vote by Section 67(3), read with the Fourth Schedule to the Constitution.

In consequence, there are hundreds of thousands of Zimbabwean citizens living outside Zimbabwe who are effectively disenfranchised, notwithstanding the constitutional provisions to which we have referred. Further, there are likely to have been some Zimbabwean citizens who were ordinarily resident in Zimbabwe and registered to vote but who were on polling day outside Zimbabwe and who were unable to vote because of the absence of any means of doing so. Postal voting is confined to the relatively small categories of voters defined by Section 72 of the Electoral Act.

The justification for excluding the diaspora of Zimbabwean citizens from voting is not readily apparent. In the Group’s meeting with representatives of ZANU-PF, it was told that the enfranchisement of the diaspora would be unfair to ZANU-PF because certain of its members, who are individuals presently subject to international sanctions, would be unable to travel to countries to campaign there. However, these sanctions are not in place in, for example, any of Zimbabwe’s neighbours, such as South Africa – yet the provisions of the Electoral Act, in removing the voting rights of the diaspora, do not distinguish between Zimbabwean citizens living in countries that have imposed sanctions and those living elsewhere.

Recommendation:

The government and ZEC should explore avenues for extending the constitutional right to vote to Zimbabwean citizens who are not residing or no present within Zimbabwe on polling day.

With Zanu PF looking for every opportunity to RIG future Elections this recommendation will never be met! They would never allow themselves to be VOTED out of Office. That veneer of the Democratic Process would never pass the Zanu PF party resolution! Irrespective of the CONSTITUTION

Zimbabwe Harmonised{?} Elections 2018

Status of 2018 COG recommendations as of 23 August 2023: The 2018 Zimbabwe COG Report is available here

https://library.commonwealth.int/Portal/External/en-GB/DownloadImageFile.ashx?objectId=7011&ownerType=0&ownerId=63332

Summary:

^[1] 27 https://zimlii.org/akn/zw/judgment/zwcc/2018/4/ eng@2018-05-30>;