Daniel Nemukuyu Senior Court Reporter—
The State is not obliged at law to establish polling stations outside the country and all Zimbabweans in the Diaspora who decide to live away from home for personal reasons were free to travel back to cast their votes, the Constitutional Court has ruled.Giving reasons for a 2013 court order dismissing the request for postal ballot by foreign-based Zimbabweans, Chief Justice Luke Malaba said the right to vote was not absolute and that limitations to the right were justified.
South Africa-based truck driver Mr Tavengwa Bukaibenyu filed a constitutional application in 2013 challenging the validity of Section 23(3) of the Electoral Act, which removes from the voters’ roll, names of those who spend at least 12 consecutive months outside their constituencies.
He was also seeking the striking down of Section 71 of the same Act, which limits the right to postal voting only to people sent outside the country on Government business and their spouses.
Mr Bukaibenyu, through Advocate David Ochieng, argued that the pieces of legislation were discriminatory and unlawfully violated his right to vote.
Chief Justice Malaba, sitting with eight other judges, dismissed the court application through a court order in 2013. However, the detailed reasons for the decisions were availed this week under Judgement Number 12 of 2017.
Part of the judgment authored by the Chief Justice reads: “The Constitution did not place an obligation upon the State to make arrangements for voters, who for personal reasons, were unable to attend at the polling stations to vote…”
Chief Justice Malaba defended Section 23(3) of the Electoral Act. “Section 23(3) required that a voter be resident in the constituency in which he or she was to vote for purposes of being qualified for registration on the voters roll for that constituency.
“If the voter became absent from constituency in which he or she was registered as a voter for a continuous period of 12 months, his or her name had to be removed from the voters’ roll of that constituency,” reads the judgement.
The Chief Justice said the Legislature was within its powers to enact the two contested sections of the Electoral Act. “There could be no serious argument that the Legislature acted unlawfully in enacting the two sections, when the Constitution specifically vested it with the power to impose residence qualifications on voters and thus limit the exercise of the right to vote,” he said.
Postal ballot was not meant for all people living outside Zimbabwe but only for a specific group of those out of the country on national duty.
“The postal ballot was reserved for a specific class of registered voters who, because they would be on duty in the service of the Government, would be forced to be absent from their constituencies on the polling days in the election. “The class of registered voters with the right of access to use of postal ballot was clearly defined.
“The applicant and other registered voters who would have been outside the country on polling days in the election and unable to attend personally to cast their votes at the polling stations in the constituencies they were registered as voters, are excluded because they did not satisfy the prescribed criteria for the members of the class entitled to the use of the postal ballot,” the court ruled.
Voters who stay outside the constituency for at least 12 consecutive months, according to the Zimbabwe electoral system, are deemed to have lost touch with the constituency.
They are presumed to be people with insufficient information about the candidates’ ability to address developmental problems of the constituencies.