BUKAIBENYU v CHAIRMAN OF THE ZIMBABWE ELECTORAL COMMISSION & ORS

CONSTITUTIONAL COURT, HARARE

[Constitutional Application CCZ 12-17]

June 26 and 28, 2013

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI, GWAUNZA, GARWE, GOWORA,
HLATSHWAYO, PATEL JJCC AND CHIWESHE AJCC

Constitutional Law – Constitution of Zimbabwe, 1980 – Declaration of rights
– Section 23A (2) – Right to vote – Electoral Act [Chapter 2:13]
– Section 23 (3) – Provision that a voter be resident in a constituency in order to vote – Whether such provision violates right to vote.

Constitutional Law – Constitution of Zimbabwe, 1980 – Declaration of rights
– Section 23A (2) – Right to vote – Electoral Act – Section 71 – Provision limiting right to postal voting to persons in the service of the Government or spouse of such person – Whether such provision violates right to vote.

The applicant challenged the constitutionality of ss 23 (3) and 71 of the Electoral Act [Chapter 2:13]. Section 23 (3) requires a voter to be resident in a constituency in order to vote. Further, if such voter is absent from the constituency for a period of over 12 months, his or her name is removed from the voters roll. Section 71 limits the right to postal voting to persons in the service of the Government or spouses of such persons. In respect of both sections, the applicant argued that they violated the right to vote in that they are an unjustifiable limitation of that right.

Held, that s 23 (3) of the Electoral Act is not in violation of the right to vote because the voter does not lose his right to vote.

Held, further, that s 71 is not in violation of the right to vote because there is no constitutional obligation on the State to make arrangements for voters who for personal reasons are unable to attend at polling stations to vote.

Cases cited:

Madzingo & Ors v Minister of Justice & Ors 2005 (1) ZLR 171 (S), applied

Registrar General of Elections & Ors v Tsvangirai 2002 (1) ZLR 204 (S), referred to

Richter v The Minister of Home Affairs and Others 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC); [2009] ZACC 3, not followed

Legislation considered:

Constitution of Zimbabwe Order, 1979 (SI 1600 of 1979 of the United Kingdom), ss 23A (2), 24 (1), 38, 3 (1) of the Third Schedule

Electoral Act [Chapter 2:13], ss 23 (3), 71

South Africa:

South African Electoral Act, s 33 (1)(e)

D Ochieng, for the applicant

M Kanengoni, for the first respondent

T O Dodo, for the second, third and fourth respondents

MALABA DCJ:

At the end of hearing argument for both parties, the Court dismissed this application with no order as to costs. It was indicated at the time that reasons for the decision would follow in due course. These are they.

The applicant approached the Court in terms of s 24 (1) of Constitution of Zimbabwe Order, 1979 (SI 1600 of 1979 of the United Kingdom)
(“the Constitution”) which gave any person alleging that the Declaration of Rights has been, is being or is likely to be contravened in relation to himself, the right to apply to the Supreme Court for redress.

The applicant challenged the constitutional validity of ss 23 (3) and 71 of the Electoral Act [Chapter 2:13] (“the Act”) as interfering with his right to vote as enshrined in s 23A (2) of the Constitution. More specifically, the applicant alleged that s 23 (3) of the Act, which required that a voter be resident in a constituency in order to vote and that if such voter was absent from the constituency for a period of over 12 months his or her name be removed from the voters roll, infringed his right to vote.

The applicant further contended that s 71 of the Act, limiting the right to postal voting to any person who, on all polling days in the election, would be outside Zimbabwe on duty in the service of the Government or as the spouse of such a person and would be unable to vote at a polling station in his or her constituency, violated his right to vote. His contention was that every voter who is outside the country on polling days in an election must be afforded the opportunity to vote at a designated place in the country where he or she is at the time.

The applicant’s personal circumstances made it evident why he had launched the application. The applicant averred that he is a Zimbabwean by birth residing in South Africa. He said he was gainfully employed in that country. The applicant did not say when he went to South Africa and how long he had been living in that country. He did not disclose the nature of employment he was engaged in. He was, however, emphatic that he was unlikely to return to Zimbabwe in the foreseeable future or at least until the economy recovered enough to guarantee him employment if he returned. The applicant further alleged that he was a registered voter in the Mabvuku constituency. The extract from the voters roll he provided as proof of the averment, however, indicated that his residential address at the time of registration as a voter was in Kadoma.

At the hearing of the application, Mr Ochieng for the applicant, argued that the provisions of s 23 (3) of the Act, by requiring that a voter be resident in his or her constituency and must not have been absent therefrom for more than a continuous period of 12 months in order to vote at a polling station in the constituency, imposed an unjustifiable limitation on the right to vote. It was his submission that s 71 of the Act, by restricting the right to vote by postal ballot only to those who were outside the country on duty in the service of the Government or their spouses, infringed the applicant’s right to vote.

Mr Ochieng argued that s 23A (2) of the Constitution gave every Zimbabwean who was a registered voter the right to vote. As such the State had an obligation to put in place mechanisms in every country where there are Zimbabwean citizens to enable them to cast the ballot in every election. It was his suggestion that every Zimbabwean embassy should be turned into a polling station on election day to allow Zimbabwean citizens in the diaspora to vote.

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