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Trust Maanda
Post Correspondent
THE Constitution of Zimbabwe gives every citizen of Zimbabwe a right to vote.
This right does not confer a duty on the State to enforce it for an individual to exercise it.
The person who seeks to exercise it must satisfy certain requirements.
The Constitution and statutory provisions guarantee universal and equal suffrage to each citizen who has reached the age of majority to vote.
The existing framework provides that every citizen shall have an opportunity to vote or be voted for, without discrimination on any ground such as origin, race, political affiliation, gender, social status or any other ground.
However, the Constitution and the Electoral Act provide for requirements for one to qualify to vote.
While the Constitution provides for all citizens to vote, Diaspora voters, for example, have a right to vote in Zimbabwe, but have to return to Zimbabwe to vote.
According to Section 72 (a) and (b) of the Electoral Act, only those who will be away from their constituencies or country on Government duties on election day are entitled to a postal vote.
Citizens in the Diaspora are permitted to vote, provided they meet registration requirement on the voters roll and return to the country to vote in their respective constituencies.
In Zimbabwe, the Constitutional Court has ruled that Diaspora voters have a right if they come to vote.
Their right to vote is not an obligation to vote.
Theirs is a right to vote which they choose to exercise or not to exercise.
If they want to exercise it they then have to be in the constituency where they are registered upon satisfying requirements, including residency requirements in the Electoral Act.
The current provisions relating to residency requirements are contained in paragraph 1(2) of the Fourth Schedule of the Constitution.
The section provides that in addition to the citizenship and age requirements, 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 the Constitution, in particular with Section 67.
Section 67 of the Constitution guarantees various political rights, including the right to vote, to Zimbabwean citizens over 18 years.
In the case of Bukaibenyu v ZEC Chairman & Others, the Constitutional Court, deciding on whether people in the Diaspora can vote, held that the residency requirement in the Electoral Act was a necessary limitation to the right to vote.
It is not an unconstitutional requirement for one to be a resident and be registered to vote within the constituency they wish to vote in.
In the Bukaibenyu case, the applicant argued that the provisions of Section 23(3) of the Act, by requiring that a voter be resident in his or her constituency and not having been absent for more than a continuous period of 12 months in order to vote at a polling station in the constituency, imposed an unjustifiable limitation on the right to vote.
The court said that the Legislature acted lawfully in enacting residence requirements because the Constitution specifically vested it with the power to impose residence qualifications on voters and thus limit the exercise of the right to vote.
The court said the Legislature clearly had the power to prescribe conditions for the exercise of the right to vote.
The Constitutional Court of Zimbabwe has decided on yet another matter in which the people from the Diaspora were seeking the right to vote.
This was in the application filed by Gabriel Shumba.
In Shumba & 2 Others v Minister of Justice, Legal & Parliamentary Affairs & 5 Others.
The Constitutional Court held that the residency requirement does not breach the Constitutional provisions which give a right to every Zimbabwean to vote.
Because the Constitutional Court has ruled that the residency requirement does not contravene the Constitutional right of an external citizen to vote, the right of people in the Diaspora to vote exists in the legal framework to the extent that they are able to fulfil the requirements of residence and are able to return to vote.
The Constitution does not oblige the State to make arrangements for voters who for personal reasons are unable to attend at the polling stations to vote.
There is no provision in the Constitution and the Act requiring the electoral management body to establish mechanisms for citizens to vote outside the country.
As the law currently stands, a registered voter should attend personally on polling day to cast their ballot at a polling station in the constituency in which they are enrolled.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
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