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On May 30, 2018, The Zimbabwe Constitutional Court handed down judgment in Gabriel Shumba & Others v Minister of Justice, Legal and Parliamentary Affairs & Others. The Southern Africa Litigation Centre (SALC) together with Zimbabwe Lawyers for Human Rights (ZLHR) supported three members of the Zimbabwe Diaspora to challenge the provisions of the Electoral Act which prohibit Zimbabweans who live abroad from registering to vote or voting in elections. SALC worked with the Zimbabwe Exiles Forum to bring this case. The applicants submitted to the court that the residency restrictions violate the constitutional guarantees of universal suffrage. In addition, the applicants argued that the provisions are unconstitutionally discriminatory as there is a limited class of people—those living abroad in government service and their spouses—who may vote from abroad by post. The African Commission on Human and Peoples’ Rights has already held that the provisions violate the African Charter on Human and Peoples’ Rights however, Zimbabwe failed to implement that decision.

The applicants, human rights lawyer Gabriel Shumba, Sibonile Mfunmisi and Darlington Nyambiya, all resident outside Zimbabwe, approached the Constitutional Court directly for an urgent decision. The applicants were represented by Advocate Thabani Mpofu. On the 18th January, Chief Justice Luke Malaba granted direct access to the Constitutional Court for a hearing on the legal challenge. The matter was argued before a full bench of the court on the 14th March led by Justice Elizabeth Gwaunza.  On the 30th May the Court dismissed the application.

In dismissing the case, the court considered whether or not the Zimbabwean Constitution permits a diaspora vote. The court resolved that the right to vote is not absolute and may be limited. While every citizen over 18 years old has the right to vote, it merely qualifies the citizen for registration as a voter. This registration then needs to be effected on a voter’s roll and that voter’s roll must relate to a constituency. As a result residency is required as part of eligibility to vote. The court relied on the 2013 Bukaibenya case which was brought under the old Zimbabwean constitution. In that case a truck driver sought a postal vote for foreign based Zimbabweans. Chief Justice Malaba in that case said the right to vote was not absolute and that limitations to the right were justified.

On constituency based elections the applicant’s counsel argued that residential requirements would only relate to parliamentary and local government elections and not to presidential elections. The court disagreed with this on the basis that Section 92 of the Constitution makes reference to registered voters “throughout Zimbabwe” adding this phrase relates to geographical boundaries. The court stated that there is no legislative framework for the diaspora vote. They maintained that the concept of residential requirement is lawful and constitutional.

According to Kaajal Ramjathan-Keogh, SALC’s Executive Director, “The court has missed a golden opportunity to implement universal suffrage in Zimbabwe. This appears to be a political decision rather than one based on the applicable laws. The outcome of this case is a huge disappointment – in particular to the thousands of Zimbabweans in the diaspora who have been unable to register as voters and who are unable to travel to Zimbabwe to participate in the elections on 30 July. In particular we are surprised that the court did not consider options of progressive realisation of the right to vote for all citizens – including those outside the country.”

Despite the many changes in Zimbabwe since the November 2017 coup- the government’s attitude towards inclusivity and democracy remains the same. The judgment quotes Adv Mpofu who stated during argument that there was no need to amend the Constitution but that the government needed to amend its attitude. This is not the first time the court has been asked to consider permitting Zimbabweans outside the country to participate in elections and has yet again turned down this request. The court appears to be steadfast and inflexible on this matter despite many countries allowing their citizens who are abroad to vote, including South Africa, Mozambique, Senegal, Rwanda, Ghana, Kenya, Botswana, Namibia, India, United States of America and Australia.

For further details on the case please see:

Gabriel Shumba & Others v Minister of Justice, Legal and Parliamentary Affairs & Others

CCZ 3/18

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