Constitutional Court deferes hearing on diaspora vote case

THE Constitutional Court last week deferred hearing the matter in which a Zimbabwean in the diaspora is seeking to quash Section 23(3) and Section 7 of the Electoral Act which bars foreign-based citizens from voting in the general elections. 
Mr Tavengwa Bukaibenyu, who works in South Africa, has instructed his lawyers to contest the constitutionality of the two sections of the law.
He argues that the Constitution provides that every adult Zimbabwean should be allowed to vote when Section 23(3) of the Act bars those resident in foreign land from voting.
Section 7 of the same Act, according to Mr Bukaibenyu, only allows Government officials deployed in foreign countries and their spouses to vote from there when other Zimbabweans who are not in the employ of the Government could not be afforded the same opportunity.
Postal voting, according to the section, in question could only be accessed by diplomats and other Government officials on duty in other countries.
Mr Bukaibenyu argues that the two sections of the Act violated the Constitution and that they should be struck down.
The matter was supposed to be heard yesterday but the judges called the lawyers to the chambers where they resolved to shelve the matter pending the amendments to the Electoral Act.
Advocate David O'Chieng, who was representing Mr Bukaibenyu, confirmed the development saying the parties were waiting for the amendments which were expected yesterday.
"There are some amendments to the Electoral Act under discussion. We have resolved to wait until the amendments have been published. We have to wait until the future of the law is certain," Adv Ochieng said.
In the application, Mr Bukaibenyu stated that he is a registered voter in Mabvuku but he was now based in South Africa.
He said he failed to vote in 2008 due to work commitments and on that basis he feels he has to exercise his right to vote in the elections scheduled for July 31.
Justice and Legal Affairs Minister Patrick Chinamasa and Registrar General Tobaiwa Mudede opposed the application through the Attorney General's Office.
They argued that the two sections of the law were not in contravention of the Constitution.
It was argued that the process of allowing Zimbabweans in the diaspora to vote was prohibitively costly and a burden to the country's fiscus.
The two, in their heads of argument, say the Government had no capacity to allow other citizens in foreign land to vote the same way diplomats do.
"It would be an economically colossal task, a practically impossible exercise. It is logistically unfeasible.
"Zimbabwe does not have embassies in each and every country in the world and yet there are Zimbabweans resident all over the world.
"If all Zimbabweans living in the diaspora were to vote from where they are, the embassy staff would be overwhelmed by the amount of work and they would fail to cope," read part of the heads of argument.
Government also cited sanctions as a stumbling block in conducting postal voting for foreign-based Zimbabweans.
Western countries, according to the heads of argument, imposed sanctions on members of Zanu-PF who could not be allowed to send its election agents for the voting process by Zimbabweans there.
That, according to Government, would give Zanu-PF's opposition parties an unfair advantage.
"Zanu-PF will not be in a position to dispatch its election agents to these Western countries as they will be denied visas due to the sanctions and travel bans," read the papers.