Thursday 31 May 2018


ZIMBABWE does not have a legal framework for the diaspora vote and the electoral authority is not under any obligation to set up polling stations outside the country, the Constitutional Court has ruled.

Deputy Chief Justice Elizabeth Gwaunza, sitting with eight other judges of the apex court, ruled that only those posted to other countries on national duty, can enjoy the right to postal ballot.

The nine-member bench made the decision while dismissing a challenge by three Zimbabweans living in the diaspora who were seeking to compel the Zimbabwe Electoral Commission (Zec) to facilitate their voting in the harmonised election set for July 30 from their respective foreign bases.
Mr Gabriel Shumba (Zimbabwean lawyer) and Mr Sibonile Mfumisi — both based in South Africa — and United Kingdom-based Mr Darlington Nyambiya wanted the Government to follow up on every Zimbabwean in almost all continents of the world and ensure they exercise their right to vote from there.

The court ruled that those who left the country on their own accord were not covered by the legislation and their exclusion cannot be viewed as unconstitutional.

“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.
“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,” read the judgment.
Justice Gwaunza said when the Constitution was enacted in 2013, Parliament was aware that diaspora vote was not provided for but no changes were effected.

“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,” said Justice Gwaunza.

The court ruled that the additional requirement under Section 23 of the Electoral Act for one to be resident in the constituency he or she wishes to cast their vote, was above board and in sync with the supreme law.

“The power to make residency requirements is derived from the Constitution itself.
“It is apparent that the concept of additional residential requirement is lawful and constitutional,” reads the judgment.

The court ruled that since the Constitution does not envisage constituencies beyond the borders of Zimbabwe, it follows that the voters’ roll cannot exist outside country’s 210 constituencies.

In the application, the trio cited Foreign Affairs Minister Lieutenant-General Sibusiso Moyo (Retired); Zimbabwe Electoral Commission (Zec) chairperson Justice Priscilla Chigumba; Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi; Finance and Economic Development Minister Patrick Chinamasa and Attorney-General Prince Machaya as respondents.

The Zimbabwe Lawyers for Human Rights —instructed Advocate Thabani Mpofu argued the matter on behalf of the trio while Mrs Venard Munyoro from the AG’s Offce argued on behalf of the 
respondents. Herald


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