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 section 67 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 section 67(3) as read with paragraph 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 sections 56(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 sections 23 and 72 of the Electoral Act [Chapter 2:13] infringe their right to vote as enshrined in section 67(3) as read with paragraph 1(2) of the 4th Schedule to the Constitution.
It is also their argument that section 72 of the Electoral Act [Chapter 2:13] violates their rights in terms of section 56(1), (3) and (4) of the Constitution.
Section 67 of the Constitution deals with 'Political Rights' and its subsection (3) confers the right to vote on every Zimbabwean citizen of 18 years and above. Section 56 and the sub-sections cited relate to equality and non-discrimination.
The applicants argue that, in terms of section 67(3) of the Constitution, every citizen over the age of eighteen (18) years is entitled to vote regardless of where they reside or resident. In their opinion, the residency requirements set out in section 23(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 Electoral Act does not facilitate the registration and voting of Zimbabweans based abroad, the applicants contend that the result is a negation of section 67(3) as read with paragraph 1(2) of the 4th Schedule to the Constitution.
They further aver that sub-section 23(3) and section 72 of the Electoral 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 section 72 of the Electoral 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, sections 4.1.1, 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.
Counsel for the applicants further argues that the right to vote, given under section 67(3) of the Constitution, does not depend on anything other than citizenship and age.
He also relied on section 155(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.
Counsel for the applicants further contends that the right accorded in the Constitution cannot be attenuated by legislation, and that, in terms of section 35(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 section 67(3) of the Constitution 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 sections 67, 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, counsel for the applicants argues that there was no need to amend the Constitution but that the Government needed to amend its attitude.
The second (Chairperson, Zimbabwe Electoral Commission) and third (Zimbabwe Electoral Commission) respondents filed papers indicating that they would abide by the order of the Court.
The first (the Minister of Justice, Legal, and Parliamentary Affairs), fourth (the Minister of Foreign Affairs), fifth (the Minister of Finance and Economic Development) and sixth (the Attorney General of Zimbabwe) 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 section 72 of the Electoral 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.
Counsel for the first, fourth, fifth and sixth respondents argues, in addition, that the arguments by counsel for the applicants have already been dealt with in Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission and Others CC12-17.
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 section 23(3) as read with section 33 of the Electoral Act [Chapter 2:13].
Section 33 of the Electoral Act provides for the procedural steps to be taken before a person is dis-entitled 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.
Counsel for the first, fourth, fifth and sixth respondents contends that section 72 of the Electoral Act is justified for the reason that it relates to persons re-assigned 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....,.
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 section 23 of the Electoral Act [Chapter 2:13] violates section 67(3) of the Constitution.
3. Whether section 72 of the Electoral Act [Chapter 2:13] violates subsections 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 of the Constitution deals with 'Political Rights' and in its sub-section (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.”…,.
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 section 67.”
As is apparent from the above, sub-section (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 paragraph 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 section 67 (it hardly needs mention that whether or not such residential requirements violate section 67 of the Constitution will depend on how that section itself is interpreted).
Paragraph (2) follows directly after paragraph 1(1) and must, logically, not be read independently from it, as the appellants seek to do. Doing so is to interpret paragraph 1(2) out of context (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 CC24-17)), with the possible result of giving it an unintended, if not erroneous, import.
The whole of paragraph 1 therefore reads as follows:
“1. Qualifications for registration as voter
(1) Subject to subparagraph (2) and to paragraph 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 section 67.”…,.
If this whole provision is read together with section 67(3) of the Constitution, as it should since it addresses the same issue, the simple meaning is that while paragraph 1(1) of the 4th Schedule to the Constitution 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 paragraph 1(2) of the 4th Schedule to the Constitution 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 Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission and Others CC12-17 where MALABA DCJ…, 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.”
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 judgement nor established that it was distinguishable.
It should be noted that paragraph 1(1) is made 'subject to' paragraph 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 paragraph 1(1) must take on board any additional residential requirements that may be prescribed in terms of paragraph 1(2).
The caution contained in paragraph 1(2) against these additional requirements violating the political rights guaranteed in section 67, especially subsection (3) thereof, is not to be interpreted narrowly, since this sub-section 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 section 160(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.”…,.
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 paragraph 1(1) of the 4th Schedule relates to any one of the 210 constituencies which the Zimbabwe Electoral Commission (ZEC) is constitutionally mandated to divide Zimbabwe into.
To facilitate the registration of a voter on the most appropriate voters' roll of a constituency, paragraph 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 voters 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 section 72 of the Electoral Act…,. 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.
Counsel for the applicants 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 section 92 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 section 158.
(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.”…,.
In terms of section 92(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 section 23 of the Electoral Act.
One significant provision of section 92 is paragraph (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 section 160 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 section 67(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 counsel for the applicants that in terms of section 35(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 section 155 of the Constitution, the applicants argue that the provision entitles them to cast their votes from abroad. The section provides as follows:
(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 subsection (1), and, in particular, must —
(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) of the Constitution 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 sub-section 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 section 67 and the 4th Schedule of the Constitution.
I find, in the result, that, since it cannot stand alone, section 155 of the Constitution 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 CC24-17, 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 CC24-17:
“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 section 160 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 State v Zuma and Others 1995 (2) SA 642 (CC) 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 CC24-17, 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.
