HomeOpinionDiaspora vote saga sparks legal row

Diaspora vote saga sparks legal row

By Makusha Mugabe

ZIMBABWEANS living in the United Kingdom who last week filed an urgent application in the Supreme Court claming their right to vote from abroad are basing their case on the

various democracy and human rights instruments which African Union and Southern African Development Community (Sadc) leaders have adopted and ratified.

The action, brought by Diaspora Vote Action Group (DVAG) is significant in that it is taken on behalf of an estimated four million Zimbabwean adults who live outside the country. The number is almost the same as that of voters inside the country.

Far from being a gimmick to disturb elections as Justice, Legal and Parliamentary Affairs minister Patrick Chinamasa says, the DVAG action was the result of a real frustration by Zimbabweans — mere expatriates or migrant labourers in other countries — about why they were excluded from the electoral process yet they so much wanted to influence events in their own country.

Chinamasa seems to be labouring under the mistaken belief that just because top Zanu PF officials are not allowed in Europe or America because of their own misdeeds, Zimbabwean citizens should have to give up their right to vote. The citizens have nothing to do with the fight between Mugabe and British Premier Tony Blair and US President George Bush. The Mugabe government should sort out its problem with Europe and America, but Zimbabweans should still be able to exercise their right to vote.

Zimbabwe’s constitution allows citizens registered on the voters’ roll the right to vote, and once one is on the voters’ roll he/she cannot be removed unless he/she has taken the citizenship of another country. While the expatriates may be free to go home and vote, as Chinamasa suggests, at what cost would that be, and why should it cost anything for one to go and vote instead of the government facilitating the process by making it possible for people to vote at their embassies?

Besides regional countries like Mozambique, Botswana and South Africa, the Iraq government recently even hired buses for its citizens in the UK to go and vote at centres in Manchester, London and Glasgow.

In the democratic separation of powers that we are supposed to be having in Zimbabwe, it is the courts which decide what applications or actions constitute abuse of the court process, not Chinamasa who is part of the executive. We look forward to meeting Chinamasa in court where the judges will decide whether the application is an abuse of the court process as he says.

The estimated population in Zimbabwe is 8,5 million (12,5 million minus four million outside the country). Of this number about half are children below 18 and the elderly in rural areas who may not be able to go and vote (taking into consideration also that a large number in the 20 to 40 age-group have died of HIV-related illnesses), which leaves about four million voters inside the country making decisions for the rest of the country, while another four million adult people are disenfranchised by virtue of being outside the country looking for better opportunities.

The fact that some of them, eg those in the UK, may be able to vote in council elections in the places where they live does not make them UK citizens. In fact it is recognition that while they are there they might know someone who would make a good councillor for them and they are given the right to vote. It certainly does not take away their Zimbabwean citizenship.

Advocate Beatrice Mtetwa’s argument seems unassailable; that just because one goes abroad for school or migrant work so that he/she can build his/her dream-house in his home country does not remove one’s political affinity to his/her home. In fact, it should increase it because one would want to make sure that the Zimbabwe that one is investing in will be the Zimbabwe that one wants.

At the time of the filing of the case the Zimbabwe Electoral Commission had only just been appointed by Mugabe — using his powers under the same old Zimbabwean constitution, even though a few weeks earlier the president had been quoted saying he fully subscribed to the Sadc principles and guidelines governing democratic elections.

Was the president serious when he appended his signature to the Sadc protocol which in practical terms called for changes to Zimbabwe’s own constitution that allows the president to be a referee in a game in which he is playing?

The silence of the Zimbabwean constitution on voting by non-residents does not mean that their right is taken away. If we go by what the constitution does say explicitly, it is that every citizen who is over18 has the constitutional right to vote as long as he registers.

The current exclusion of Zimbabweans in the diaspora from elections can only be explained by the actions of the government of the day -— and in this case, the action of a government that realised that most of the people resident outside the country had been exposed and would probably not be hoodwinked into voting for a party that has forced them into menial jobs just to sustain their dreams which were washing away with the falling Zimbabwe dollar.

This would also explain the inconsistency of the government in fully accepting that Zimbabweans in the diaspora were mainly temporarily resident outside the country for economic and other reasons, but at the same time deny them the vote.

The president himself was shown on television admitting that Zimbabweans abroad had shown that they would never forget where they come from — because they were building houses and sending money home to support their clans.

This inconsistency was also noted in Reserve Bank officials’ visits in the UK where they were openly told: “When it comes to our pounds we are citizens, but when it comes to the vote we are British,” before they were sent scurrying for cover and told never to come back again until they had put in place a “Votelink” programme to go along with their Homelink project.

They do not see why the government has seen it fit to exclude them from the country’s political processes, unless it is because the government of the day fears that the Zimbabweans abroad might vote against it. It is unfair and discriminatory, so the Supreme Court is being asked to intervene.

The provisions of Section 32(2) of the Electoral Act would require a constituency registrar to retain a Zimbabwean’s name on the voters’ roll and to have those Zimbabweans who are now qualified voters to exercise their right to vote wherever they might be.

Jefta Madzingo, the applicant, is therefore justified in believing that: “The exclusion of voters such as myself from voting is discriminatory and does not accord with provisions of the Bill of Rights which guarantees Zimbabweans certain basic rights to freedom of expression politically through the electoral process. I therefore contend that such exclusion is clearly unconstitutional.”

He also claimed that the exclusion contravened provisions of Section 21 of the constitution of Zimbabwe, which guarantees citizens of Zimbabwe freedom of association, by limiting their ability to freely associate with those political organisations with whom they might share common interests.

Madzingo further contended that Section 22 allowed Zimbabweans the freedom to move freely, and the movement of Zimbabweans for economic reasons to other parts of the world should not therefore be curtailed by denying them the right to participate in the country’s political processes through elections while they are on their trips.

Exclusion of Zimbabweans who are in the diaspora from participation in the political process would have the effect of curtailing such Zimbabweans’ right to freedom of movement. The government therefore needed to ensure that arrangements were made for Zimbabweans in the diaspora to vote in general and presidential elections as and when they are held, to avoid accusations of discrimination.

The government of Zimbabwe has fully accepted that all of its citizens were entitled to full participation in the political and electoral processes in the country as it signed various international legal instruments which include the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, the African Charter on Human and People’s Rights and, more recently, the Sadc Principles and Guidelines Governing Democratic Elections.

Madzingo’s case therefore only seeks to hold the government to the provisions of all of these instruments including the Universal Declaration of Human Rights which provides that everyone has the right to take part in the government of his or her country, directly or through freely chosen representatives. Zimbabweans, regardless of where they might be resident, are therefore entitled to fully participate in the upcoming general elections and, as the government of Zimbabwe has acceded to all these instruments, it is obliged to ensure that their provisions are fully respected.

But in case it might be said that these are Western values being imposed on the country, Zimbabwe is also party to regional and continental instruments on holding regular, free and fair general elections, like the African Union’s Declaration on the Principles Governing Democratic Elections in Africa adopted by the Assembly of Heads of State and Government of the Organisation of African Unity on July 8 2002.

Zimbabwe fully participated in this declaration which specifically states that every citizen shall have the right to participate freely in the government of his or her country either directly or through freely elected representatives in accordance with the provisions of the law.

The declaration also guarantees every citizen the right to fully participate in the electoral processes of their country including the right to vote or be voted for according to the laws of the country and as guaranteed by the constitution without any kind of discrimination.

* Makusha Mugabe is a member of DVAG, which can be reached at dvagzimbabwe@yahoo.co.uk

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