Zimbabwe: What hope for diaspora vote in 2018 elections?


    Last week, Gabriel Shumba, Sibonile Mfumisi, both
    based in South Africa, and Darlington Nyambiya in the United
    Kingdom filed a court application for direct access to the
    Constitutional Court of Zimbabwe to address the
    constitutionality of the provisions of the Electoral Act
    (Chapter 2:13). The act thwarts Zimbabwean citizens living and
    working abroad from participating in elections unless they
    physically go back home in order to exercise their political

    Belinda Chinowawa from the Zimbabwe Lawyers for
    Human Rights (ZLHR) working in collaboration with the Southern
    Africa Litigation Centre is representing the trio. The
    application is lodged against the Zimbabwe Electoral
    Commission, Minister of Justice, Legal and Parliamentary
    Affairs, Attorney General’s office, Ministry of Finance and
    Foreign Affairs.

    On behalf of Zimbabweans in the diaspora, the
    application is based on a contention that the residents’
    requirements imposed under the Electoral Act is
    unconstitutional. My clients feel that the new constitution
    which provides political rights allows for every citizen of
    Zimbabwe to participate in political processes wherever they
    are,” Chinowawa said.

    In his founding affidavit, the first applicant,
    Shumba, argues that due to his representation of an opposition
    party political activist in 2003, he was tortured, abducted and
    charged with attempting to overthrow the government through
    unconstitutional means. Despite the charges later being
    dropped, Shumba’s states that this harrowing experience forced
    him to flee the country for his safety and that of his

    In 2008 I was confirmed as a refugee in South
    Africa, making me unable to resume residence in Zimbabwe,” the
    affidavit reads.

    The other applicants are Mfumisi, an office
    administrator based in South Africa who left the country for
    economic reasons, and Nyambiya who is based in the UK and who
    left for the same reason.

    Section 23(3) goes further to state that a voter
    “who is registered on the voters roll for a constituency shall
    not be entitled to have his or her name retained on such roll
    if, for a continuous period of 12 months, he or she has ceased
    to reside in that constituency”.

    As a result of these provisions, my co-applicants,
    myself and millions of other Zimbabweans based abroad do not
    qualify for registration on the voters roll,” Shumba explains
    in the affidavit.

    However, Section 67 of the constitution sets out
    the political rights of citizens, with Section 67l(3)
    particularly provides that “every Zimbabwean citizen who is of
    or over 18 years of age has the right to vote in all elections
    and referendums and to do so in secret”.

    Dewa Mavhinga explained that the Constitutional
    Court application lodged by Zimbabweans in diaspora is the
    second such challenge after the first one failed in

    The first constitutional application was based on
    the previous constitution while the current application is
    based on the 2013 Zimbabwe constitution which grants
    Zimbabweans in the diaspora the right to vote,” Mavhinga told
    Daily Maverick.

    Addressing journalists, Zimbabwe Electoral
    Commission (ZEC) Chairperson Rita Makarau went on record
    saying: “Whether we will be able to make them vote in diaspora,
    quite a few things must happen and one of them is that the
    Electoral Act must be aligned to the constitution and provide
    the mechanism through which the diaspora vote will be

    Justice Makarau said in the event that the
    Electoral Act is aligned to the constitution, ZEC would either
    set up polling stations in the different countries where
    Zimbabweans are resident or turn embassies into polling

    However, lawyer and Deputy Dean of Law at the
    University of Zimbabwe, Sylvia Chirawu believes it is still a
    pipe dream. “I don’t see it happening at all in the current
    discourse and conditions. It is one of the issues that are hard
    to push for,” Chirawu added.

    Mavhinga is hopeful if the judiciary could not be
    influenced by political forces. “There are high chances of
    success but the real challenge that could result in the failure
    of the application is that the Zimbabwe’s judiciary is not
    fully independent and subject to undue political

    Shumba and co-applicants believe that they have
    high prospects of success as the supreme law of the country
    provides for such.

    Even when the constitutional court grants the
    diaspora vote, it does not mean those in diaspora will be able
    to vote in 2018 because the government could, as it has done
    sometimes, ignore the court ruling or even amend the
    constitution to remove the provision on the diaspora vote,”
    Mavhinga concluded. DM

    Photo: Zimbabwean President Robert Mugabe (R)
    and the then Prime Minister Morgan Tsvangirai arrive at a rally
    marking Zimbabwe’s 31st independence anniversary celebrations
    in Harare April 18, 2011. REUTERS/Philimon