Diaspora Vote: What the law says

by | Dec 13, 2021 | Crime & Courts, International, Politics | 0 comments


Hosia Mviringi

Whenever elections are near, there is a debate of the diaspora vote which emerges.
Activists have turned agitating the issue into a profitable venture, toying with the emotions of Zimbabweans based outside the country for selfish gain.
The latest culprit is former Ntabazinduna Chief, Chief Ndiweni, who was seen at 10 Downing Street in the United Kingdom delivering what he termed a petition for the diaspora vote.
Why he went to the United Kingdom seeking a solution for a Zimbabwean problem, is a story for another day.
However, despite the cosmetic pressure there is need to be guided by what the law in Zimbabwe says on the issue.
Two cases have been handled in the Constitutional Court, challenging the validity of provisions that prohibit diaspora voting.
Of course, both cases fell by the wayside as the Constitutional Court repeatedly validated the constitutional provisions to that effect.
As has been proven before, the judiciary can only interpret laws made in Parliament.

Perhaps the obligation that we bear is to point out those legal that make it impossible for government to intervene.
Both the pre-2013 and the post-2013 statutes upheld the invalidity and impracticability of the diaspora vote.
For purposes of this instalment, more focus and emphasis will be on provisions as contained in the 2013 statutes which make the current supreme law of the land.
Section 160(1) of the Constitution deals with the subdivision of the country into 210 Constituencies in which all eligible citizens who are ordinarily resident therein must register as voters.
The Constituency based electoral system employed in Zimbabwe via the widely celebrated 2013 Constitution mandates all aspiring voters to be registered as voters in those constituencies in which they are resident.
Sections 23 and 72 of the Electoral Act imposes residence qualification of voters.
This means that a voter has to be resident in a relevant constituency for them to qualify as a voter in the same constituency.
In other words once one ceases to be resident therein at least for a period of 12 months or more, the registrar of voters is not obliged to maintain their name on that particular voters’ roll.
In the spirit of inclusion, the Zimbabwe Electoral Commission has however maintained names of those in the diaspora on the voters` roll and they can travel back home to cast their votes with no issues.
The most important provision of the Zimbabwean Electoral Law in its current form is that it only provides for constituency-based electoral system which does not accommodate non-resident voters.
It explicitly outlaws postal vote as it does not provide for the funding and administration of extra-territorial electoral activities.
According to current constitutional provisions, every aspiring voter must be registered in their constituency of residence, then be able to avail themselves in person to cast a vote on polling day.
The first challenge to this constitutional provision was the 2012 Tavengwa Bukaibenyu case against Zimbabwe Electoral Commission (ZEC) Chairman and others.
The then Chief Justice Godfrey Chidyausiku’s ruling, which was delivered in 2017 by the then Deputy Chief Justice Luke Malaba, dismissed the case for lack of merit.
“The Constitution did not place an obligation upon the State to make arrangements for voters who for personal reasons were unable to attend at the polling station to vote,” said CJ Chidyausiku then.

A similar case was the 2017 Gabriel Shumba and two others versus the Minister of Justice, Legal and Parliamentary Affairs and five others.
A full Constitutional Court bench as led by Justice Gwaunza, heard and dismissed the case on May 30, 2018.
“Paragraph 1(2) of the 4th Schedule of the Constitution provides as follows:
(2) The Electoral Law may prescribe additional residential requirements to ensure that voters are registered on the most appropriate voter’s roll, but any such requirements must be consistent with this Constitution, in particular with Section 67,” she said in a ruling.

“Of these other provisions, the applicants specifically mention paragraph 1(2) of the 4th Schedule of the Constitution. This provision, as already indicated, provides leeway for ‘the Electoral Law’ to prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll”.

“This point was, in my view, correctly made in the Bukaibenyu case (supra) where Malaba DCJ (as he then was) had this to say in relation to Zimbabwe’s electoral system:
” 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,” wrote Justice Gwaunza.
The constituency-based electoral system provides for a constituency voters’ roll and a system for the counting and posting of ballots at the polling station.
Constituencies in Zimbabwe are established through the delimitation process.
This process regrettably does not extend to foreign lands where mapping and subdivision of Constituencies must take place.
The right to vote is not absolute and exclusive as it is subject to other constitutional provisions such as those contained in the 4th Schedule of the Constitution of Zimbabwe.
Section 72 of the Constitution is clear on the qualification to vote by post.
Section 72, 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 in terms of this part if, he or she will be outside Zimbabwe-
(a) on duty as a member of a disciplined force or as an electoral officer or
(b) on duty in the service of government; or
(c) as a spouse of a person referred to in paragraph(b); and so unable to vote at a polling station in the constituency.

When Zimbabweans endorsed this provision then in 2013, it was a partisan proposal by the opposition parties which was meant to plug some perceived loopholes which were deemed to facilitate electoral misconduct during transmission of ballots from polling stations to the command centre.
It was then, as it still is, a logical provision.
Yet once again it is the same opposition parties that are crying foul over this law because they erroneously believe that they will be beneficiary of a protest vote.
Of course this notion is not without its foundations because currently, due to sanctions imposed on the ruling party, they are the only party in Zimbabwe that can campaign freely in Europe and the Americas.
Once an election has been declared in a constituency a person intending to vote must ascertain that they are registered in that Constituency. They must then ensure that they are able to present themselves in person on polling day.
It goes without saying that if anyone feels hard done by the current electoral legislation, the correct procedure would be to approach the Parliament of Zimbabwe and lobby for a repeal of the Constitutional provisions, which may have to go through a referendum.
Neither number 10 Downing Street nor street protests have the power to change a constitutional provision in Zimbabwe.