Zimbabwe diaspora has right to vote

In the last blog, when I discussed the issue of dual citizenship I indicated that I would turn my attention to the right to vote. What is the nature of the link, if any, between dual citizenship and the right to vote? Is it correct to say that the draft constitution does not allow the Zimbabwean Diaspora to vote? These are some of the questions this note seeks to address by making specific reference to the relevant provisions of the draft constitution.

The major point that will emerge is that the draft constitution does not contain specific legal barriers against the Diaspora vote. The Diaspora must, however, mobilise and organise to assert their rights which will be demonstrated in this paper.

The first point of clarity is that the right to vote and citizenship are related but different entitlements. The danger is that in the debate over the constitution these two rights have been conflated and, in the process, confused.

Citizenship is a wider concept that includes, but is not limited to the right to vote. The right to vote may follow from one's right to citizenship but the latter is broader in scope. It includes, for example, the right to protection from the state regardless of where the citizen is stationed. It also includes obligations such as a citizen's loyalty to the state. The right to vote flows from one's citizenship right but it is only one of many rights.

In many ways it is the conflation of the right to vote and citizenship rights that is the primary source of the contestation over the issue of dual citizenship. The "Diaspora Vote", as it is referred to deeply divides opinion between political parties.

What is true is that the denial of citizenship will naturally affect the exercise of one's right to vote. However, as we observed in the last blog, the draft constitution does not prohibit dual citizenship and unless parliament enacts a law prohibiting dual citizenship under the new constitutional order, citizens abroad remain entitled to their right to vote.As we have observed, the proposed draft constitution provides for a presumption in favour of dual citizenship unless parliament chooses to specifically prohibit it.

Therefore, if the draft constitution is passed into law, with the nullification of the provisions of the Citizenship Act that prohibit dual citizenship, all persons holding Zimbabwean citizenship will be entitled to all citizenship rights, including voting rights, wherever they may be based. Whether or not Zimbabweans can actually exercise their voting right is therefore not a legal but a practical matter that will depend on the availability of resources to fund mechanisms to allow them to vote.

Let us look at the right to vote more closely to have a better appreciation of what individuals are entitled to and the avenues available to those those who wish to exercise their right to vote under the proposed constitutional order. I have observed that people tend to over-generalise when commenting on dual citizenship and the right to vote as if they were the same thing notwithstanding the fact that there are specific provisions that attend to the right to vote.

Clause 4.18 of the Bill of Rights in the draft constitution makes extensive provisions for political rights. It guarantees that every citizen has the "right to free, fair and regular elections for any elective public office".

A subsection of this provision states that every adult citizen has the right to vote in secret in all elections and referendums. It is this clause that captures the right to vote, to which every citizen is entitled. Given that the constitution creates a presumption in favour of citizenship, it means that the right to vote is also available to all Zimbabwean citizens regardless of their status or physical location. The only exception is if parliament were to choose to prohibit dual citizenship under the new constitutional order.

Further, Clause 6.4(2) of the draft constitution, which deals with presidential elections, states that,

"The President is elected directly by registered voters in a national election and the procedure for the election is as prescribed in the Electoral Law."

This clause was originally worded in such a way that it appeared to restrict the right to vote to persons that are stationed in Zimbabwe only. This appeared to discriminate against registered voters who were outside Zimbabwe. This was subsequently removed to simply ensure that all registered voters were allowed to vote that it was consistent with political rights enshrined in Clause 4.18 as stated above. This provision no longer discriminates against voters in the Diaspora which means registered voters are entitled to vote in a presidential election regardless of their physical location.

In addition, there is Clause 8.1(2) of the draft constitution, which requires the state "to take all appropriate measures, including legislative measures, to ensure that everyone who is eligible to vote in an election or referendum has an opportunity to vote". If therefore there are persons who are eligible to vote in the Diaspora the state has an obligation to facilitate the exercise of their voting right.

But who is eligible to vote?

Citizens who are registered voters are entitled to vote. The draft constitution makes provisions for qualifications for registration as a voter. These qualifications are set out in the Fourth Schedule of the draft constitution. A person is qualified to register as a voter if he or she is at least 18 years old and is a Zimbabwean citizen. Any additional legislative requirements must be consistent with the Constitution and in particular Clause 4.18 which, as we have seen, guarantees political rights. There is nothing in the schedule that says that a Zimbabwean citizen is disqualified from registering as a voter simply because he or she is based outside Zimbabwe.

Already the electoral law provides for postal voting by Zimbabwean citizens abroad if they are outside the country on government business. There is nothing in the constitution to prevent ordinary Zimbabwean citizens abroad from enforcing their right to vote using similar mechanisms.

When in the case of Madzingo & Others v Minister of Justice Legal and Parliamentary Affairs & Others SC-100-05, the Supreme Court of Zimbabwe dismissed an application by the persons in the Diaspora to assert their voting rights in 2005, the court's reasoning was based on the view that the constitution at the time did not specifically provide for the right to vote. It was, with respect, a poor decision. Thankfully, the position has since changed after Amendment No. 18 when specific voting rights were included in the constitution (the current Section 23A) and as we have observed, Clause 4.18 of the draft constitution makes specific provision for the right to vote.

The net effect of all this is that under the draft constitution all Zimbabwean citizens abroad are entitled to exercise their right to vote.

The barrier to their exercise of this right would not be based on the law but on practical factors â€" that is, the practical ability of the state to provide for mechanisms to enable them to vote.

In this regard, the Diaspora ought to take positive steps to assert their rights. They can make use of Clause 8.1(2) which, as we have observed enjoins the state "to take all appropriate measures, including legislative measures, to ensure that everyone who is eligible to vote in an election or referendum has an opportunity to vote".

There is a persuasive precedent from the Constitutional Court of South Africa, in the case of New National Party of South Africa v The Government of the Republic of South Africa (1999) where the Court emphasised that unlike other civil and political rights, the right to vote imposed a positive obligation on the state to take steps to ensure the exercise of the right.

The same court also stated in another case (the August case ) that "the right to vote by its very nature imposes positive obligations upon the legislature and the executive … [The legal provision] clearly imposes an affirmative obligation on the Commission to take reasonable steps to ensure that eligible voters are registered" and can exercise their rights.

Finally, while the issue of dual citizenship is often expressed in general terms as if it applied to all Zimbabweans in the Diaspora, it must be borne in mind that not all Zimbabweans in the Diaspora hold dual citizenship. Therefore, even assuming that dual citizenship is prohibited, the above arguments would not be affected in so far as they apply to Zimbabwean citizens who have no other citizenship and it could well be that at present that group is still in the majority. The rights of citizens are clear an must asserted.

In short, the draft constitution does not prohibit Zimbabweans in the Diaspora from voting.