THE Zimbabwe Election Support Network (Zesn) has always advocated for the recognition of voting rights as absolute rights that must not be taken away from citizens. The right to vote was at the centre of the struggle for Independence and one of the key achievements in 1980.
It is important, therefore, that citizenship be the key qualification to exercising the right to vote.
The new draft constitution released recently by Copac, specifically recognises the right to vote along similar lines to section 23A of the current constitution. Section 23A made specific reference to the right to vote. Clause 4.24 of the final draft specifically provides for the right to vote in all elections.
When a group of Zimbabweans challenged their exclusion from voting in 2005, the Supreme Court ruled against them on the basis that the right to vote was not specifically provided for in the constitution (Madzingo & Others v Minister of Justice and Others 2005 (1) ZLR 171 (S)). This reasoning has been overtaken by events as the right to vote is now specifically provided for in the constitution.
The draft constitution also recognises the equality of rights, benefits and privileges of citizenship to all citizens regardless of their location. These rights and privileges do not depend on where the citizen is based.
Further, in the Bill of Rights, Clause 4.24 (1)(a) and (b) which guarantee political rights states that “every citizen of Zimbabwe has the right to free, fair and regular elections for any elective public office established in terms of this constitution or any other law and to make political choices freely”.
The right to make political choices freely arguably includes the right to vote. On this basis, taking into account the equality of citizenship regardless of location, an argument can be made to the effect that Zimbabwean citizens in the diaspora are entitled to the same voting rights as citizens based in Zimbabwe. One’s location should not be a barrier to the enjoyment or exercise of the right to vote.
However, Zesn is concerned that this positive spirit appears to be diluted by other clauses in the draft constitution leading to a lack of clarity on these rights.
First, the right to vote in the Bill of Rights, provided for in Clause 4.24 (3) is provided for “subject to this constitution” which means the right to vote is conditional upon other provisions in the constitution.
The clause to which it is subject is the General Limitation Clause (4.43) which applies to all rights in the Bill of Rights except absolute rights from which there can be no derogation. The right to vote is not listed among the absolute rights with the implication that measures can be taken to qualify it subject to satisfying the test that they must be fair, reasonable, necessary and justifiable in an open, just and democratic society.
It means that if measures are taken to deny the diaspora vote, legal action would have to be mounted arguing the measures are not fair, reasonable, necessary and justifiable in an open, just and democratic society. It is by no means clear what the court would decide in such circumstances as they might be swayed against the diaspora vote because of the residence qualifications that are referred to in the Fourth Schedule.
The net effect of this is that residence qualifications may be prescribed in the Electoral Act, providing criteria for registration. If the law requires, for example, that for a citizen to register as a voter he or she must be lawfully resident in Zimbabwe, it would exclude citizens who are outside the country.
It is regrettable the draft constitution repeats the residence qualification which means there is no difference on this issue from the current constitution. This will mean all Zimbabweans in the diaspora will be denied the right to vote. Zesn believes that there is no reason to limit the right to vote on the basis of residence in presidential elections. The maximum qualification to vote in a presidential election should simply be citizenship.