External
voting by post was part of the electoral laws that were introduced in Zimbabwe
after 1980 when the country attained political independence. It is limited to
electors who are absent from Zimbabwe
while in the service of the government, such as diplomats, civil servants, and
members of the armed forces and police. An estimated 3.5 million
Zimbabweans now live outside the country, mainly as a result of economic and
political hardship, and about two-thirds of these are probably of voting age.
This situation has given rise to increased demands by those living in the
diaspora for external voting arrangements to be extended to them as well.
Zimbabwean laws prohibit dual citizenship.
External
voting is provided for in part XIV of the Electoral Act (Act no. 25/2005),
which deals with postal voting. The act only makes reference to postal voting
and does not provide for voting at a diplomatic mission. Eligibility to vote by
post is limited to persons ordinarily resident in Zimbabwe who are resident in
the constituency (electoral district) in which the election is to take place or
were resident in that constituency 12 months preceding polling day and
have good reason to believe that they will be absent from the constituency or
unable to attend at the polling station by reason of being ‘absent from
Zimbabwe in the service of the Government of Zimbabwe’ (section 71(1)(b)).
The spouses of persons absent from Zimbabwe on government service are
also eligible to vote by post.
Sections
71–81 of the Electoral Act describe in detail the procedure for applying for
postal ballot papers, the issuing of the postal ballot papers, postal voting,
the handling of the postal ballot boxes, and offences related to postal ballot
votes. A person who is eligible to vote by post may apply to the chief
elections officer for a postal ballot paper. The application, to be received by
the chief elections officer ten days before polling day, is made on a
prescribed form that the applicant signs in front of a competent witness. The
chief elections officer shall number consecutively and keep every application
received by him or her open for public inspection until the final result of the
election is announced.
Once the
chief elections officer is satisfied that the application satisfies the legal
requirements, he or she will send the ballot paper to the applicant by
registered post or by hand together with other documents stipulated in the act.
The ballot paper shall be numbered and shall be indistinguishable from the
ballot papers at other polling stations. Upon receiving the postal ballot, the
voter shall produce the numbered ballot paper before a competent witness. Both
the voter and the competent witness will sign a declaration of identity. The
voter will then mark the ballot paper with the candidate of his preference in
the presence of a competent witness but without disclosing how he or she has
voted. The voter will place the marked ballot paper in an envelope marked
‘ballot paper’ and place it together with the identity declaration in a cover
envelope for dispatch by registered post or hand it directly to the
constituency election officer.
The
constituency election officer shall, no later than three days after nomination
day, notify each candidate of the time and place at which he or she will seal
the postal ballot box. At the appointed time and place the constituency
electoral officer will show the postal ballot box open and empty and then seal
it with his seal and the seals of any candidates who wish to affix their seals.
All postal votes received before the close of the poll will be placed unopened
in that ballot box. The constituency elections officer will give each candidate
24 hours’ notice of the place and time at which the postal ballot boxes
and envelopes will be opened.
The
electoral authorities have taken great care to ensure the transparency,
credibility and security of the external voting process through the provisions
described above. However, despite increasing demands, the government maintains
that it has no obligation to introduce external voting arrangements to allow
the growing number of Zimbabweans living outside the country to vote.
In a recent
case a group of Zimbabwean citizens living in the United Kingdom, sought an order
compelling the government to make arrangements to allow them to vote
externally. The Zimbabwe
Supreme Court (Case no. SC 22/05) ruled that the case had no merit. The
ruling, made on 18 March 2005, indicated that full reasons for the
judgement would be given later. At the time of writing the full judgement is
still to be made available.
The
applicants—who were not employed by the government but were legally resident in
the UK—argued that they were entitled to exercise their right to vote in terms
of the Zimbabwean Constitution and that their exclusion from voting was
discriminatory and therefore unconstitutional. They further contended that the
exclusion from voting of those living outside Zimbabwe curtailed their rights
to freedom of expression to an extent that was not acceptable in a democratic
society, and advanced the argument that the Zimbabwean Government was committed
to full participation by its citizens in political and electoral processes by
its citizens by virtue of being party to the Universal Declaration of Human
Rights, the African Charter on Human and Peoples’ Rights and the Southern
African Development Community (SADC) Principles and Guidelines Governing
Democratic Elections. They argued that there was a distinction between
eligibility to register as a voter and eligibility to vote. The electoral law
was therefore discriminatory to the extent that it permitted certain citizens
to vote externally while excluding others.
In response,
the Zimbabwean minister
of justice, legal
and parliamentary affairs, who was cited as first respondent in
the case, denied that Zimbabweans living abroad were being discriminated
against by the absence of external voting arrangements. He argued that the
electoral law provided for the disqualification of voters who had been absent
from Zimbabwe
for 12 months or more. He contended that the SADC Principles and
Guidelines are a political document pegging out a road map for the region that
SADC countries must follow towards a a future democratic ideal, but that it is
not a legal document that is binding on member states. He argued further that,
while the Zimbabwean Government acknowledged that Zimbabwean citizens had the
right to freedom of expression, assembly and association, the government was
not discriminating against anyone but that, under the current political and
economic situation, Zimbabwe
was unable to allow electors from the diaspora to vote externally because of
practical logistical problems. He pointed out that most of the countries in
which Zimbabweans were living had adopted measures and sanctions that
prohibited government officials from entering such countries. (Sanctions have
been adopted by mainly the European Union countries and the United States.) This, he argued,
would create an uneven political playing field where the ruling party would not
have access to would-be voters while the opposition would have easy access.
It is clear
that in Zimbabwe
the provisions for external voting are elaborate but restrictive. There is no
doubt that, given the growing number of citizens living outside the country,
there is going to be increasing demand for similar arrangements to be extended
to citizens who are not abroad on government service. The case referred above
also raises the fundamental issue of a rights-based approach to electoral
administration and how far governments should be held responsible for realizing
citizens’ right to vote.
