GWAUNZA
JCC:
This
is an application in terms of section 85(1)(a) of the Constitution
and the background to the matter is as follows:-
The
applicants are all citizens of, but are not resident in, Zimbabwe.
They give different reasons for their absence, with the first
applicant citing political reasons. The second applicant cites
economic reasons while the third applicant alleges his absence is
premised on economic and political reasons.
The
applicants state that they wish to participate in the country's
harmonized general elections due later this year, 2018, but are
precluded from doing so by certain sections of the relevant law. They
accordingly seek the following relief:-
IT
IS DECLARED THAT:
“1.
The failure to afford voting facilities to the applicants and
similarly placed Zimbabweans based abroad be and is hereby declared
unconstitutional in that it violates applicants' rights as
enshrined in s67 and 56 of the Constitution.
ACCORDINGLY,
IT IS ORDERED THAT:
1.
Section 23 of the Electoral Act [Chapter
2:13]
be and is hereby declared constitutionally invalid as far as it
excludes citizens not resident in Zimbabwe from registering as voters
in contravention of s67(3) as read with para 2 of the 4th
Schedule to the Constitution of Zimbabwe.
2.
Section 72 of the Electoral Act [Chapter
2:13]
is hereby declared constitutionally invalid as far as it excludes
citizens of Zimbabwe who are not in Government service from
exercising their right to vote in contravention of s56(1), 56(3),
56(4) and 67(3) of the Constitution of Zimbabwe.
3.
The respondents are hereby ordered to put in place all appropriate
measures to enable the applicants and any other Zimbabweans based
abroad to participate in the 2018 Presidential, Parliamentary, and
Local Authority elections as voters.”
As
is evident from the draft relief sought that, it is the applicants'
case that ss23 and 72 of the Electoral Act [Chapter
2:13]
infringe their right to vote as enshrined in s67(3)
as
read with para 1(2) of the 4th
Schedule to the Constitution.
It
is also their argument that s72 of the Electoral Act violates their
rights in terms of s56(1), (3) and (4) of the Constitution.
Section
67 deals with 'Political Rights' and its subs(3) confers the
right to vote on every Zimbabwean citizen of 18 years and above.
Section 56 and the subsections cited relate to equality and
non-discrimination.
The
applicants argue that in terms of s67(3) of the Constitution, every
citizen over the age of 18 years is entitled to vote regardless of
where they reside or resident. In their opinion, the residency
requirements set out in s23(3) of the Electoral Act (“the Act”)
should not and cannot negate the right of any Zimbabwean above the
age of 18 years
to
vote.
Because
the Act does not facilitate the registration and voting of
Zimbabweans based abroad, the applicants contend that the result is a
negation of s67(3) as read with para 1(2) of the 4th
Schedule to the Constitution.
They
further aver that subs 23(3) and 72 of the Act are discriminatory for
the reason that they restrict the right to vote only to persons
physically in Zimbabwe, to the prejudice of absent voters. They
contend that the benefit extended to a certain class of people under
s72 of the Act unjustly discriminates against them because they are
not in government service nor are they spouses of such civil
servants.
The
applicants in addition allege that denial of the diaspora vote is
contrary to international law, that is, Article 13 of the African
Charter on Human and Peoples' Rights, ss4.1.1, 4.1.8 and 5.1.8 of
the SADC Principles and Guidelines Governing Democratic Elections,
and Article 25 of the International Covenant on Civil and Political
Rights.
Mr
Mpofu for
the applicants further argues that the right to vote given under
s67(3) of the Constitution does not depend on anything other than
citizenship and age.
He
also relied on s155(1)(c) of the Constitution which he described as
an 'executionary provision'. The contention in this regard is
that all voters are equal, regardless of where a person is residing
for a particular period.
Mr
Mpofu
further contends that the right accorded in the Constitution cannot
be attenuated by legislation and that, in terms of s35(3)(a) of the
Constitution, the State is obliged to 'follow' its citizens
wherever they are, this obligation not being informed by the location
of the citizen but by the citizenship of the person.
In
terms of s67(3) as read with the 4th
Schedule to the Constitution, it is further argued, everyone not
disqualified from voting is entitled to vote. Citizens in the
diaspora are not disqualified from voting. The 4th
Schedule is different from its equivalent under the erstwhile
Constitution, and does not detract from ss67, 35 and 155 of the
Constitution.
He
postulates that the according of a right to vote can only have
meaning if it is given to a person who would otherwise not have
voted. Once a citizen remains outside the constituency for the
relevant period, there is no provision for the equitable use of
discretion by the Zimbabwe Electoral Commission. Reference was made
to the fact that South Africa, Mozambique, Senegal, Rwanda, Ghana,
Kenya, Botswana, Namibia, India, United States of America and
Australia all grant their citizens in the diaspora the right to vote.
Finally,
Mr
Mpofu
argues that there was no need to amend the Constitution but that the
government needed to amend its attitude.
The
second and third respondents filed papers indicating that they would
abide by the order of the Court.
The
first, fourth, fifth and sixth respondents opposed the application
and did so, generally, on the basis that anyone who wishes to
exercise their right to vote can bring themselves into the confines
of the law as currently worded and exercise the right to vote.
They
also allege that the impugned provisions are not restrictive.
As
regards s72 of the Act, the first, fourth, fifth and sixth
respondents allege that it is a justified differentiation between
government employees outside the country and those pursuing their own
interests abroad because government employees are required to be
outside Zimbabwe on the polling day. They also allege that there is
no obligation on the State to establish polling stations outside
Zimbabwe.
The
first, fourth, fifth and sixth respondents also contend that the
impugned sections are administrative in nature and are consistent
with the Constitution.
Mrs
Munyoro for
the first, fourth, fifth and sixth respondents argues in addition
that the arguments by Mr
Mpofu
have already been dealt with in
Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission and
Others CCZ12/17.
Her
position is that the provisions under the erstwhile Constitution and
the provisions in the current Constitution are similar. Section 67(3)
is subject to the rest of the Constitution.
A
person has the right to be retained only on the 'most appropriate
roll'.
The
4th
Schedule provides for an additional requirement, of residency. The
Constitution does not provide for external constituencies.
There
is a presumption of coherence of the Constitution and the provisions
of the Constitution should not be read in isolation.
Further,
that the residency requirements have constitutional 'parentage'
and are not unreasonable requirements.
A
person can only lose their right to vote in terms of s23(3) as read
with s33 of the Act.
Section
33 provides for the procedural steps to be taken before a person is
disentitled to vote.
In
order to be entitled to vote in a constituency, a person has to have
an interest in the relevant constituency and this is only safeguarded
by the residency requirement.
Mrs
Munyoro
contends that s72 of the Act is justified for the reason that it
relates to persons reassigned by the government. Persons abroad on
government service cannot vote in the hosting nations but applicants
may be able to vote in their countries of residence depending on
their circumstances.
Notwithstanding
that there are other countries which permit the diaspora vote, it is
her contention that Zimbabwe has to be guided by the wording of its
Constitution, which clearly did not anticipate the diaspora vote.
Thus, if the applicants feel strongly about the diaspora vote, they
should petition Parliament to amend the Constitution.
Before
I consider the real dispute between the parties, I consider it
pertinent to comment on a part of the relief sought by the
applicants, that is, para 1 of the draft order. The applicants
purport to seek relief on their own behalf and that of 'other
Zimbabweans living and working abroad ….' This application has
been filed in terms of s85(1)(a) of the Constitution, not under
s85(1)(c) or (d), which permit an applicant to seek relief on behalf
of other persons besides him or herself. During the hearing,
Mr
Mpofu
for the applicants properly conceded that the applicants could not
validly seek this relief.
In
resolving this matter, it is apparent that four questions arise for
determination, that is:-
1.
Whether the Constitution of Zimbabwe, directly or indirectly, allows
for the 'diaspora vote.'
2.
Whether s23 of the Act violates s67(3) of the Constitution.
3.
Whether s72 of the Act violates subs 56(1), (3) and (4) of the
Constitution.
4.
Whether international conventions and electoral laws have any
influence in the interpretation of our electoral laws as currently
phrased.
Whether
the Constitution of Zimbabwe, directly or indirectly, allows for the
'diaspora vote'
The
papers before the court point to one major point of dissent between
the parties, and that is whether or not the Constitution, in the way
it is worded in relevant parts, or in the import of such wording,
envisages or anticipates a situation where Zimbabweans based abroad
by dint of their own volition, can vote during the country's
harmonized general elections.
In
other words, does the Constitution allow or not allow the so-called
diaspora vote?
The
applicants' view is in the affirmative while the respondents firmly
subscribe to the opposite view.
My
view is that this is the issue that must be determined first before
one can consider the question of whether or not the impugned
provisions of the Electoral Act violate the relevant provisions of
the Constitution. This is particularly so where it is alleged, as in
casu,
that certain statutory provisions violate a particular constitutional
provision, and where the meaning of such provision is the subject of
dispute between the parties.
Section
67 deals with 'Political Rights' and in its subs(3) reads as
follows:
“67
Political rights
(1)….
(2)...
(3)
Subject
to this Constitution,
every Zimbabwean citizen who is of or over eighteen years of age has
the right —
(a)
to vote in all elections and referendums to which this Constitution
or any other law applies, and to do so in secret; and
(b)
to stand for election for public office and, if elected, to hold such
office.” (my
emphasis)
Paragraph
1(2) of the 4th
Schedule to the Constitution provides as follows:
“(2)
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 s67.”
As
is apparent from the above, subs (3) confers the right to vote in all
elections, on 'every
Zimbabwean who is of or over eighteen years of age'.
This
right however is not absolute, since the same provision is prefixed
with the words 'Subject
to this Constitution', whose
effect
is to limit this very right.
The
clear meaning of this provision is that it must not be read in
isolation but must 'subject' itself to other provisions of the
Constitution that have a bearing, no matter how tangential, on the
issue of electoral voting. The provision must in other words, cohere
or be consonant with all such other constitutional provisions.
Of
these other provisions, the applicants specifically mention para 1(2)
of the 4th
Schedule to 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.
However, any such requirements must be consistent with the
Constitution, in particular with s67. (It hardly needs mention that
whether or not such residential requirements violate s67 will depend
on how that section itself is interpreted.)
Paragraph
(2) follows directly after para 1(1) and must, logically, not be read
independently from it, as the appellants seek to do. Doing so is to
interpret para 1(2) out of context,
with the possible result of giving it an unintended, if not
erroneous, import.
The
whole of para 1 therefore reads as follows:
“1.
Qualifications for registration as voter
(1)
Subject
to subparagraph
(2) and to para 2, a person is qualified
to be
registered
as a voter on the voters roll of a constituency if
he or she —
(a)
is of or over the age of eighteen years; and
(b)
is a Zimbabwean citizen.
(2)
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 s67.”(my
emphasis)
If
this whole provision is read together with s67(3), as it should since
it addresses the same issue, the simple meaning is that while para
1(1) gives the right to vote to every Zimbabwean citizen of or over
18 years of age, that right alone is not enough. It merely qualifies
the citizen
for registration as a voter, something that he is then required to
do. The
registration must be effected on a voter's roll, and that voters'
roll must relate or 'belong' to, a given constituency.
However,
by virtue of para 1(2) additional residential qualifications may be
prescribed, and these would, as it were, complete the package of
voting requirements to be met before a citizen is allowed to vote.
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 registered2.”
It
should be noted that para 1(1) is made 'subject to' para 1(2).
The import of this prefix in my view is simply to restate the fact
that the requirements for eligibility to vote as outlined in para
1(1) must take on board any additional residential requirements that
may be prescribed in terms of para 1(2).
The
caution contained in para 1(2) against these additional requirements
violating the political rights guaranteed in s67, especially subs (3)
thereof, is not to be interpreted narrowly, since this subsection is
made 'subject to' other provisions of the Constitution that deal
with voting rights.
The
clearest suggestion as to what 'constituency' for purposes of
voting in general elections refers to, is given in s160(1) of the
Constitution.
The
section falls under the heading 'DECLARATION OF ELECTORAL
BOUNDARIES', and the subtitle 'Number
of constituencies and wards'. It
reads as follows:-
“(1)
For the purpose of electing Members of Parliament, the Zimbabwe
Electoral Commission must divide
Zimbabwe
into 210 constituencies.” (my
emphasis)
It
is not in dispute that Harmonised General Elections are held in order
for the electorate to vote among others, for Members of Parliament, a
President and local Government representatives of their choice.
There
can, in my view, therefore, be no doubt that the reference to
'constituency' in para 1(1) of the 4th
Schedule relates to any one of the 210 constituencies which ZEC is
constitutionally mandated to divide Zimbabwe into.
To
facilitate the registration of a voter on the most appropriate
voters' roll of a constituency, para 1(2) of the 4th
Schedule gives the discretion to prescribe additional residential
requirements to the Electoral Law.
Clearly
in my view, the 'most appropriate voter's roll' envisaged in
this paragraph must be related to, and not exist outside, the
specific constituency applicable to the voter in question.
The
respondents argue effectively that one measure of this
appropriateness is the voter's physical or 'deemed' residency
in the constituency concerned.
The
'deemed' residency applies, with respect, to postal votes
provided for under s72 of the Electoral Act, discussed later in this
judgment. Such residency must be related to a constituency and the
postal voter must be registered on its voters' roll before he can
vote from wherever, in or outside Zimbabwe, he might be located.
The
constituency-based residential requirements for voting, I find,
extend to the election of the President and Vice Presidents.
Mr
Mpofu
argued that if the residential requirements are constitutional, they
would only relate to parliamentary and local government elections. He
contended that with regard to presidential elections, the residential
requirements are of no consequence because there is only one
constituency in presidential elections.
I
am not
persuaded by this argument in view of the provisions of s92 of the
Constitution which reads as follows:-
“92
Election of President and Vice Presidents
(1)
The election of a President and two Vice-Presidents must take place
within the period specified in s158.
(2)
Every candidate for election as President must nominate two persons
to stand for election jointly with him or her as Vice-Presidents, and
must designate one of those persons as his or her candidate for first
Vice-President and the other as his or her candidate for second
Vice-President.
(3)
The President and the Vice-Presidents are directly
elected jointly by registered voters throughout
Zimbabwe,
and the procedure for their election is as prescribed in the
Electoral Law.
(4)
The qualifications for registration as a voter and for voting at an
election of a President and Vice-Presidents are set out in the 4th
Schedule.
(5)
The election of a President and Vice-Presidents must take place
concurrently with every general election of members of Parliament,
provincial councils and local authorities.” (my
emphasis)
In
terms of s92(4), the qualifications for registration as a voter and
voting are prescribed in the 4th
Schedule to the Constitution.
This
is the very same Schedule that speaks to a constituency-based
election and directs one to s23 of the Electoral Act.
One
significant provision of s92 is para (3) which makes reference to
registered voters 'throughout Zimbabwe'.
This
phrase delineates geographical parameters for the Presidential
election and since the election is held concurrently with the rest of
the harmonised elections, it (the phrase) is in perfect harmony with
s160 of the Constitution which relates to electoral boundaries.
The
clear meaning is that the
Presidential election is to be conducted in Zimbabwe and in order for
a person to participate in it, he has to be in Zimbabwe or deemed so,
and, also, must be registered as a voter in terms of the 4th
Schedule to the Constitution.
When
the foregoing is considered, it becomes evident that the contention
made for the applicants that the right to vote given under s67(3) of
the Constitution does not depend on anything other than citizenship
and age, is not legally sustainable.
While
it is in some cases correct, as contended for the applicants, that a
right accorded in the Constitution cannot be attenuated by
legislation, in
casu,
it is the Constitution itself which appears to attenuate in a later
provision, a right that it accords in an earlier one.
Further,
the argument by Mr
Mpofu
that in terms of s35(3) of the Constitution, the State is 'obliged'
to follow its citizens wherever they are in the world to enable them
to vote, and that its obligation to do so is not informed by the
location of the citizen but his being a citizen, finds no support in
the Constitution.
It
is important to note that while a right granted by the Constitution
may not always be limited through legislation, legislation itself
cannot confer rights which the Constitution, in related provisions,
specifically excludes.
Other
provisions of the Constitution touch directly or indirectly on the
issue of elections and the right of Zimbabwean citizens to
participate in them.
Section
124 relates to the composition of the National Assembly and mentions
210 members elected from the same number of constituencies 'into
which Zimbabwe is divided'.
Section
161 refers to delineation of electoral boundaries 'into which
Zimbabwe is divided'. With regards to s155
the applicants argue that the provision entitles them to cast their
votes from abroad. The section provides as follows:
“155
Principles of electoral system
(1)
Elections, which must be held regularly, and referendums, to which
this Constitution applies must be —
(a)
peaceful, free and fair;
(b)
conducted by secret ballot;
(c)
based on universal adult suffrage and equality of votes; and
(d)
free from violence and other electoral malpractices.
(2)
The State must take all appropriate measures, including legislative
measures, to ensure that effect is given to the principles set out in
subs (1) and, in particular, must —
(a)
ensure that all eligible citizens, that is to say the citizens
qualified
under the 4th
Schedule, are registered as voters;
(b)
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;
(c)
ensure that all political parties and candidates contesting an
election or participating in a referendum have reasonable access to
all material and information necessary for them to participate
effectively;
(d)
provide all political parties and candidates contesting an election
or participating in a referendum with fair and equal access to
electronic and print media, both public and private; and
(e)
ensure the timely resolution of electoral disputes.”
Section
155(1)(c) relates to 'universal adult suffrage and equality of
votes'.
The
question is whether the provision necessarily means that every person
without further requirements for qualification is entitled to vote.
It
appears to me that the answer, in the negative, lies in subs 2(a) of
the same provision. It restates the requirement for every voter to be
qualified to vote in terms of the 4th
Schedule to the Constitution.
Equality
of votes, in my view, simply relates to the fact that no vote is more
important or weightier than the other.
Section
155 is still subject to the rest of the Constitution and in
particular, the 4th
Schedule and therefore, the constituency-based residential
requirements are still applicable.
Section
155(2)(b) clearly provides that every citizen eligible to vote must
be availed the chance to vote. The key is in the eligibility to vote.
The section itself is a secondary provision. It only applies after a
person has brought himself within the strictures of s67 and the 4th
Schedule.
I
find in the result that, since it cannot stand alone, s155 does not
assist the applicants' case.
It
is trite that the Constitution is a legal instrument which falls to
be interpreted, generally, according to the same principles that
govern the interpretation of any other legislation.
In
this respect it is important to note, as stated in the case of
Rushesha
and Others v Dera and Others CCZ
24/17,
that the Constitution evinces one singular document, one singular law
which is consistent within itself. This principle is aptly explained
as follows in Tsvangirayi
v Mugabe and Others CCZ
24/17:
“The
preferred rule of interpretation is that all relevant provisions
having a bearing on the subject for interpretation must be considered
together as the whole in order to give effect to the objective of the
Constitution, taking into account the nature and scope of the rights,
interests and duties forming the subject matter of the provisions.”
In
the South African case of State
v Zuma and Others,
1995 (2) SA 642 (CC), cited in the respondents' heads of argument,
it was stated as follows:
“….
We must heed Lord Wilberforce's reminder that even a Constitution
is a legal instrument, the language of which must be respected. If
the language used by the lawgiver is ignored in favour of a general
resort to values the result is not interpretation but divination…”
When
these principles are applied to the circumstances of this case, it
becomes evident that an interpretation of all the provisions of the
Constitution as discussed above, that deal with the question of who
may vote, where and how, makes it abundantly clear that the
Zimbabwean electoral system is constituency-based.
The
constituencies, in terms of s160 of the Constitution are 210 in
number and are located within the boundaries of the country.
The
Constitution does not mandate the setting up of constituencies
outside the borders of Zimbabwe.
This
in my view directs attention to what the true intention of the
Legislature was in this respect. It appears to be clear that the
exclusion of the diaspora vote, as can be evinced from the
constitutional provisions referred to, was consciously contrived and
therefore intended.
As
stated in Zuma's
case
(supra)
the language used by the Legislature in effecting this result is not
one that this Court can ignore in favour of values, no matter how
meritorious, pertaining to the desirability or otherwise of
permitting the diaspora vote. This is because the language is clear
in its meaning and does not admit of any ambiguity.
In
its wisdom and for reasons that are not apparent, the Legislature
chose to expressly exclude Zimbabwean citizens not in government
service but based abroad, from voting in the country's harmonised
elections. Had the intention been not to so exclude this group of
citizens from voting, the Legislature would have clearly stated so.
This
Court, dealing with constitutional interpretation in Rushesha
and Others v Dera and Others (supra),
made the point that even what is not said has its own implications.
The court remarked:
“The
interpretation of a statute and indeed a Constitution is based not
only on what the provision says but also on what the provision does
not say….”
That
the exclusion of the diaspora vote might have been intended is
further demonstrated by the fact that this is not the first time that
the issue of the diaspora vote has been brought before this Court.
There
is a presumption that Parliament is aware of court judgments, (Dodson
v. Potomac Mack Sales & Serv., 241
Va. 89, 94, 400 S.E.2d 178, 180 (1991);
Waterman v. Halverson, 261
Va. 203, 207, 540 S.E.2d 867, 869 (2001).
When
enacting laws that might impact on a certain area, the Legislature is
presumed to be aware of the judgments of the courts on those issues.
As
far back as 2002 and 2005, in the cases of Registrar
General of Elections & Ors v Morgan Tsvangirai 2002
(1) ZLR (S)
and Madzingo and Others v Minister of Justice and Others 2005
(1) ZLR 171 (S)
respectively,
this Court held that the diaspora vote is not provided for in the law
and that the impugned sections were not unconstitutional.
The
current Constitution was enacted in 2013, by which time the
Legislature already knew that the law did not provide for a diaspora
vote. However, no provision was inserted into the Constitution to
expressly reverse this status
quo.
Against
this background, the only interpretation that accords with the
Constitutional structure is that there is no legislative framework
set out therein, for the diaspora vote.
Bearing
the foregoing in mind I now turn to consider the other questions
raised by this application.
Whether
ss 23 and 72 of the Act violate s 67 (3) of the Constitution
Section
23 of the Electoral Act, which is one of the impugned provisions
provides:
“23
Residence qualifications of voters
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:
Provided
that if a claimant satisfies the Registrar-General of Voters that he
or she is or intends to be a candidate for election as a Member of
Parliament for a particular constituency in which he or she is not
resident, the claimant may be registered as a voter in that
constituency.
[Subsection
amended by Act 17 of 2007]
(2)
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.
(3)
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 subs (1), shall not be entitled to have his
or her name retained on such roll if, for a continuous period of
twelve 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.
(4)
The Chief Elections Officer, Registrar-General of Voters, any
constituency registrar or any officer of the Commission may demand
from any voter who is registered on the voters roll for a
constituency proof of identity or proof of residence in that
constituency or both of the foregoing.
(5)
For the purposes of subsection (4), the Commission may prescribe
documents that shall constitute proof of identity and additionally,
or alternatively, proof of residence:
Provided
that the prescribing of such documents shall not preclude a person
from proving his or her identity or residence by other means” (my
emphasis)
Section
23 of the Act deals with residency requirements for eligibility to
participate in elections as a voter. It is an additional requirement
to the contents of para
1(1) of the 4th
Schedule
to the Constitution.
The
power to make residency requirements is derived from the Constitution
itself.
It
is apparent that the concept of additional residential requirements
is lawful and constitutional. What has to be determined is whether
the residency requirements under s23 of the Act contravene s67(3) in
their extent.
In
view of my determination that the import of constitutional provisions
dealing with national elections (s67(3) included) is to create a
constituency-based electoral system, I do not find that the provision
in any way violates s67(3).
As
argued for the respondents, the provision is administrative in nature
and serves to facilitate implementation of the constituency-based
electoral process.
An
'appropriate roll' for the purposes of para 1(2) of the 4th
Schedule relates, therefore, to a roll of the constituency in which
the voter actually resides. Since the Constitution does not envisage
constituencies beyond the borders of Zimbabwe, it follows that no
voter's roll can exist outside the 210 constituencies into which
Zimbabwe is divided for voting purposes.
It
should be noted that the residency requirement does not affect only
the diaspora vote, since it also affects those who live in Zimbabwe.
For example, a person who has ceased to live in Mount Pleasant for
the relevant period will not be allowed to vote in Harare North
elections notwithstanding that they still live in Zimbabwe, albeit
in a different constituency, eg. Harare West. In this regard, the
residency requirements are not directed only at the diaspora vote.
In
any event, the applicant's case was premised on an interpretation
of the constitutional provisions in question that allowed for the
diaspora vote and made them eligible to vote. Their case is not based
on a challenge to the constituency-based nature of our electoral
system. Such a challenge can, in my view, only be mounted in the
context of lobbying the Legislature to amend the Constitution so as
to allow the diaspora vote. This is in fact what the respondents in
casu urge
the applicants to do. However, given that a determination contrary to
their interpretation of the Constitution has been made, I find that
the proverbial rug has, so to speak, been pulled from under the
applicants' feet.
This
point is accordingly decided against the applicants.
Whether
s72 of the Electoral Act violates s56(1), (3) and (4) of the
Constitution
The
constituency-based nature of the electoral system is maintained in
relation to the postal vote. Section 72 provides as follows:
“72
Persons who may vote by post
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, on all polling days in the election, 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 the Government; or
(c)
as the spouse of a person referred to in para (b);
and
so unable to vote at a polling station in the constituency.
[Section
substituted by Act 6 of 2014]" (my
emphasis)
In
terms of this provision, the starting point is an election due to be
held in a given constituency. Next is the person who is registered on
the voters' roll of that constituency.
Then
follows the question of whether or not, on the day of voting, such
voter is physically present not only in Zimbabwe, but within the
constituency in order to cast his vote.
Only
if he is absent from the country will he be able to cast his vote by
post. However, such person's absence must be attributable to the
call of duty in the service of the State or to being the spouse of
such a person.
This
in my view points to an attitude on the part of the Legislature that
this type of person would be interested in the affairs of his
constituency and would have voted but for his absence due to the
State posting abroad.
Accordingly,
the person is deemed to be resident in his constituency for purposes
of voting in the general elections.
Given
the constituency based nature of the electoral system as set out in
the Constitution, there can be no doubt that this person would not be
able to cast his vote by post if he is not registered on the voters'
roll of his constituency.
The
applicants do not assert that they are registered on the voters'
roll of any constituency in Zimbabwe, a constitutionally mandated
pre-requisite for casting the vote through the post, and indeed
through any other means.
They
allege a violation of their rights under s56 of the Constitution, on
the basis that s72 of the Electoral Act bestows the privilege of
voting outside the boundaries of Zimbabwe to a certain class of
people –State employees – in a manner that excludes them from
voting and is also 'highly discriminatory' against those based in
the diaspora who are not State employees or their spouses.
The
applicants allege this also violates their right to protection of the
law.
Section
56 of the Constitution provides, in part:-
“56
Equality and non-discrimination
(1)
All persons are equal before the law and have the right to equal
protection and benefit of the law.
(2)
Women and men have the right to equal treatment, including the right
to equal opportunities in political, economic, cultural and social
spheres.
(3)
Every person has the right not to be treated in an unfairly
discriminatory manner on such grounds as their nationality, race,
colour, tribe, place of birth, ethnic or social origin, language,
class, religious belief, political affiliation, opinion, custom,
culture, sex, gender, marital status, age, pregnancy, disability or
economic or social status, or whether they were born in or out of
wedlock.
(4)
A person is treated in a discriminatory manner for the purpose of
subsection (3) if —
(a)
they are subjected directly or indirectly to a condition, restriction
or disability to which other people are not subjected; or
(b)
other people are accorded directly or indirectly a privilege or
advantage which they are not accorded.”
The
right to equal protection of the law was discussed by ZIYAMBI JCC in
Nkomo
v Minister of Local Government, Rural & Urban Development &
Ors
2016 (1) ZLR 113 (CC) when the learned judge, at 118H-119B found:
“The
right guaranteed under s56(1) is that of equality of all persons
before the law and the right to receive the same protection and
benefit afforded by the law to persons in
a similar position.
It
envisages a law which provides equal protection and benefit for the
persons affected by it. It includes the right not to be subjected to
treatment to which others in a similar
position
are not subjected.
In
order to found his reliance on this provision the applicant must show
that by virtue of the application of a law he has been the recipient
of unequal treatment or protection that is to say that certain
persons have been afforded some protection or benefit by a law, which
protection or benefit he has not been afforded; or that persons in
the same (or similar) position as himself have been treated in a
manner different from the treatment meted out to him and that he is
entitled to the same or equal treatment as those persons.” (my
emphasis)
The
applicants have shown that there are other citizens, that is, State
officials, who are allowed to use postal voting, which they are
denied by law. What they have not shown is that they are in the same
position as those State officials. In this respect I find to be
persuasive the following argument by the respondents, found in their
heads of argument:
“… s72
applies to persons who are ordinarily resident in Zimbabwe and are
registered voters who are actually on the voters' roll. They are
however outside the country because their duties require that they
be outside Zimbabwe on polling day (and) are permitted in terms of
s72 to vote by post.
This
is a class of people who have themselves not made a conscious
decision to leave the country but do (sic)
so on national duty. They are a different class of persons from
applicants who have voluntarily
left the country, are not ordinarily resident in Zimbabwe, are not
registered and have no constituency.
The two are not in similar positions and cannot be compared.” (my
emphasis)
As
already determined, in terms of the Constitution, no person may vote
without being registered on the voter's roll of a constituency.
The
applicants would be automatically excluded from voting if they are
not so registered, and if they are not resident (or deemed to be so)
in such constituency for the time periods specified in s23 of the
Act.
A
person entitled to postal voting is deemed to be resident in the
constituency for which he or she is enrolled as a voter; see Madzingo
and Others v Minister of Justice and Others 2005
(1) ZLR 171 (S).
This
is in terms of s23(2) of the Electoral Act. It is that deeming which
entitles them to utilise postal voting. They are so deemed because,
while they are on national assignments, their stay outside their
constituency is regarded as temporary.
The
situation is different as regards people who have left their
constituencies on their own accord.
If
they do not stay in their constituency as is required by s23 of the
Electoral Act, they are taken to have left their constituency for a
duration which is not temporary. They are not deemed resident in that
constituency and for that reason, cannot vote in the constituency.
Once
it is found, as I have done, that the residency requirements under
s23 are not unconstitutional in that they do not interfere with the
constituency-based nature of our electoral system, it must follow
that there is no obligation on the part of the Zimbabwe Electoral
Commission to set up polling stations outside the country.
The
same point has been stressed before, by this Court.
In
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 exception was the category of
persons specified under s72 of the Act.
The
applicants have not challenged the correctness of that judgment.
In
the Bukaibenyu
judgment
at page 9, MALABA DCJ (as he then was) said in part:
“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 stations to vote.”
I
find that the applicants have not established, as correctly argued
for the respondents, that they are in a similar position as the
persons referred to in ss72 and 73 of the Act.
They
have not argued that they remain ordinarily resident in their
constituencies in Zimbabwe. As already determined, residency in a
constituency located in Zimbabwe (actual
or deemed)
is a sine
qua non
for eligibility to vote in national elections.
It
may be observed in this respect that residency requirements are not
peculiar to Zimbabwe, as other jurisdictions have had occasion to
address the same issue.
The
Court of Appeal for Ontario (Canada) dealt with the rationale for and
the constitutionality of, residency requirements in the Canada
Elections Act in Frank
v Canada (Attorney General)
2015 ONCA 536. STRATHY C.J.O., with whom BROWN JA concurred, found in
part:
“… [5]
Canada's political system is based on geographically defined
electoral districts.
The
citizens living in each residency elect a Member of Parliament to
represent them. Their representative serves the interests of the
community, speaks for the community and participates in making laws
that affect the daily activities of all residents of the community.
The electorate submits to the laws because it has had a voice in
making them. This is the social contract that gives the laws their
legitimacy.
[6]
Permitting all non-resident citizens to vote would allow them to
participate in making laws that affect Canadian residents on a daily
basis, but have little to no practical consequence for their own
daily lives. This would erode the social contract and undermine the
legitimacy of the laws.
The
legislation is aimed at strengthening Canada's system of government
and is demonstrably justified in a free and democratic society.
While
the impugned legislation violates s.3 of the Charter, it is saved by
s.1.
Denying
the right to vote to non-resident citizens whose absence exceeds five
years is a reasonable limit on the Charter right….
[123]
Residence is a determinant of voter eligibility in all provinces and
territories, with most requiring a minimum period of residence.
The
Saskatchewan Court of Appeal, the Yukon Territory Court of Appeal and
the Nunavut Court of Justice have found a rational connection between
these residence requirements and the fairness and integrity of the
electoral process: Storey
v Zazelenchuk
(1984), 1984 CanLII 2426 (SK CA), 36 Sask.R. 103 (C.A.); Anawak v
Nunavut (Chief Electoral Officer), 2008 NUCJ 26 (CanLII), 172
A.C.W.S. (3d) 391; Re Yukon Election Residency Requirements (1986), 1
Y.R. 23 (C.A.)….”
It
is not in dispute that the provisions challenged effectively
hamstring citizens who are resident in the diaspora. Not only these,
but also those who have ceased to reside in their registered
constituencies but continue to live elsewhere in Zimbabwe.
There
is no doubt therefore that the provisions effectively make voting for
those resident in the diaspora, who are not State employees, harder.
Regardless,
in
interpreting the Constitution, the court must uphold the overall
principles upon which the Constitution, in relevant parts, is
founded.
The
right to vote is not more important than the need to safeguard the
legitimacy of elections in the case where only those who are relevant
to a certain constituency are given the opportunity to vote in a
particular election.
The
electoral system is constituency based and the constitutionally
mandated residence requirement is the safeguard that is in place to
ensure that the electoral system maintains this character. This
objective is one that furthers compliance, and therefore resonates,
with the Constitution.
The
contrary interpretation favoured by the applicants would in my view
result in undermining the principle that Zimbabwean elections are
constituency based.
As
already determined, this principle emerges from a consideration of
the relevant provisions of the Constitution as a whole, especially
s67, s93, s155, s161 and the 4th
Schedule.
Even
if it were to be assumed that the applicants were in a similar
situation with the State
employees mentioned in s72 of the Act, based solely on the fact that
they are all Zimbabwean citizens over 18 years of age and resident
abroad, it is evident that the Legislature chose to treat these two
categories differently.
It
has been held that this type of differentiation does not always
amount to discrimination. MALABA CJ, in Greatermans
Stores (1979) (Private) Limited t/a Thomas Meikles Stores and Another
v Minister of Public Service, Labour and Social Welfare and Another
CCZ 2/18 dealt with the difference between discrimination and
differentiation in the following terms:
“In
V.M. Syed Mohammad and Company (supra)
a complaint was made to the effect that an impugned Act singled out
for taxation purchasers of certain specified commodities only but
left out purchasers of all other commodities. In interpreting the
right to equal protection of the law, the court stated as follows:
'It
is well settled that the guarantee of equal protection of laws does
not require that the same law should be made applicable to all
persons. Article 14, it has been said, does not forbid classification
for legislative purposes, provided that such classification is based
on some differentia
having
a reasonable relation to the object and purpose of the law in
question.
As
pointed out by the majority of the Bench which decided Chiranjitlal
Chowdhury's
case
([1950] S.C.R. 869), there is a strong presumption in favour of the
validity of legislative classification and it is for those who
challenge it as unconstitutional to allege and prove beyond all doubt
that the legislation arbitrarily discriminates between different
persons similarly circumstanced. There is no material on the record
before us to suggest that the purchasers of other commodities are
similarly situated as the purchasers of hides and skins.'”
The
differentiation in this case is based on the fact that the categories
of persons given a privilege in terms of s72 of the Act are persons
who have been posted to stations outside the country by the State
to conduct State
business.
The
applicants are people who have left Zimbabwe of their own accord.
The
rationale for the differentiation is that State
servants cannot be disadvantaged on the basis of where they have been
posted. They have been assigned by the State to take up positions at
stations outside Zimbabwe in order to conduct the business of the
State. The latter is accordingly under an obligation to ensure that
they are not prejudiced of their right to vote.
The
differentiation in my view meets the constitutionality test.
Accordingly,
this point is determined against the applicants.
The
influence, if any, of International Conventions and Electoral Laws
The
first applicant approached the African Commission on Human and
Peoples' Rights in 2012 arguing that Zimbabwe was in violation of
Articles 2, 3(1), (2), 9 and 13(1) of the African Charter on Human
and Peoples' Rights for the reason that the erstwhile Constitution
as read with s72 of the Electoral Act restricted his right to vote.
The
African Commission gave the following order:
1.
That Zimbabwe allows Zimbabweans living abroad to vote in the
referendum of 16 March 2013 and the general elections thereafter,
whether or not they are in the service of the Government;
2.
That Zimbabwe provides all eligible voters, including Gabriel Shumba
the same voting facilities it affords to Zimbabweans working abroad
in the service of the Government; and
3.
That Zimbabwe takes measure to give effect to its obligations under
the African Charter in accordance with Article 1 of the African
Charter, including in areas of free participation in government.
Section
327(2) of the Constitution provides as follows:
“(2)
An international treaty which has been concluded or executed by the
President or under the President's authority —
(a)
does not bind Zimbabwe until it has been approved by Parliament; and
(b)
does not form part of the law of Zimbabwe unless it has been
incorporated into the law through an Act of Parliament.”
The
applicants argue that Zimbabwe is bound to implement the findings of
the African Commission.
However,
the country has not domesticated the African Charter on Human and
Peoples' Rights in the manner outlined in s327(2). This section has
to be read in light of s46 of the Constitution which provides3:-
“46
Interpretation of Chapter 4
(1)
When interpreting this Chapter, a court, tribunal, forum or body —
(a)
must give full effect to the rights and freedoms enshrined in this
Chapter;
(b)
must promote the values and principles that underlie a democratic
society based on openness, justice, human dignity, equality and
freedom, and in particular, the values and principles set out in s3;
(c)
must take into account international law and all treaties and
conventions to which Zimbabwe is a party;
(d)
must pay due regard to all the provisions of this Constitution, in
particular the principles and objectives set out in Chapter 2; and
(e)
may consider relevant foreign law; in addition to considering all
other relevant factors that are to be taken into account in the
interpretation of a Constitution.
(2)
When interpreting an enactment, and when developing the common law
and customary law, every court, tribunal, forum or body must promote
and be guided by the spirit and objectives of this Chapter.”
Zimbabwe
is a dualist State as evidenced by ss327(2) and 34 of the
Constitution which exhorts the State to ensure incorporation into our
domestic law of all international conventions and treaties to which
Zimbabwe is a party.
The
African Charter is not a self-executing treaty and as such, it has to
be specifically incorporated into Zimbabwean law, that is, the
Constitution of Zimbabwe.
This,
I find, reinforces the respondents' argument that the solution to
the applicants' problem in
casu
lies in them lobbying the Government to amend the Constitution,
including domestication of relevant treaties and conventions, so that
it allows the diaspora vote. The relevance of this course of action
is highlighted in the case of Foster
& Elam v. Neilson 27
U.S. (2 Pet.) 253, (1829) at 314 where MARSHAL CJ had this to say:
“Our
constitution declares a treaty to be law of the land. It is,
consequently, to be regarded in Courts of Justice as equivalent to an
act of legislature, whenever it operates of itself, without the aid
of any legislative provision. But when the terms of the stipulation
import a contract – when either of the parties engages to perform a
particular act, the treaty addresses itself to the political, not the
judicial department; and the legislature must execute the contract
before it can become a rule of law for the Court.”
The
Constitutional Court remains guided by the wording of the
Constitution, and has interpreted its provisions as expressly
excluding the diaspora vote.
Amendments
to the Constitution are the prerogative of the Legislature. In other
words, the court does not dictate to the law maker what the content
of the law should be. It can only declare what such content should
not be.
The
parties in their heads of argument made reference to the state of
electoral laws in a number of countries.
It
is evident that different countries impose different laws to regulate
the right of their citizens, based locally or abroad, to vote in
their general elections. While there are some countries that do not
admit of, or even address, the diaspora vote in their law, (eg.
Uganda, Zambia, Nigeria) there are many others that allow it, to
differing degrees and on different pre-conditions (eg. South Africa,
Germany, Mozambique, New Zealand and others).
What
is clear, however, in respect of the international electoral systems
cited, is the fact that the right to vote is regulated by law.
Different countries have different methods employed to allow or not
allow the diaspora vote
depending
on the provisions of their Constitutions.
The
determination has already been made that
Zimbabwean
law does not provide for the diaspora vote. This should be a basis
for agitating for the amendment of the Constitution at the request of
any aggrieved party.
The
fact that other countries have the diaspora vote provided for in
terms of their laws would be an effective lobbying tool in that
respect. Such laws however do not entitle this Court to interpret
legislation in a manner that confers on the applicants a right which
does not arise from the Constitution. The only benefit to this Court,
of these laws, might lie in their persuasive effect in the
interpretation of any similar or related law that may be passed by
our Legislature to regulate the right of those based abroad to vote.
In
the result, I find that the international treaty cited by the
applicants, not having been appropriately incorporated into our
domestic legislation, has no binding effect in the determination of
the dispute in this matter.
I
find too that the international electoral laws which the applicants
have made reference to offer little if any assistance in the
interpretation of the constitutional provisions, as currently
phrased, that pertain to our national elections.
DISPOSITION
When
all is considered, and on the basis of the foregoing, I find that the
application cannot succeed.
It
is accordingly ordered as follows:
'The
application be and is hereby dismissed with no order as to costs.'
GARWE
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
PATEL
JCC: I
agree
GUVAVA
JCC: I
agree
MAVANGIRA
JCC: I
agree
BHUNU
JCC: I
agree
UCHENA
JCC: I
agree
Zimbabwe
Lawyers for Human Rights,
applicants' legal practitioners
Civil
Division of the Attorney General's Office,
1st,
4th,
5th
and 6th
respondents' legal practitioners
Nyika
Kanengoni and Partners,
2nd
and 3rd
respondents' legal practitioners
1.
This
would run counter to basic principles of Statutory Interpretation,
which require 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).
2.
In that judgment, the Court dealt with a challenge to the restriction
of postal voting to Government officials and the residency
requirements in the Electoral Act,
albeit
under the old Constitution. The issues are however the same as the
ones in this case. The applicants have not challenged the correctness
of this judgment nor established that it was distinguishable.
3.
Although, the African Chapter has not been incorporated into our law
through an Act of Parliament, many of its substantive provisions
accord with the righty and freedom guaranteed in our Constitution.
These however, do not include any provision addressing the issue of
the diaspora vote.
