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Notice
of Objection - Update #12
Citizenship Lobby Group (CLG)
February 20, 2002
Use this
form if:
Born in Zimbabwe and choose to refer your appeal to the High Court
Case
EA
In the Matter
Between
.
 Appellant
and
The Constituency
Registrar for
..
Constituency Respondent
WRITTEN STATEMENT
OF THE FACTS AND QUESTIONS FOR DETERMINATION
Application
The Appellant
herby requests that this matter be referred to the High Court as
a stated case in terms of section 28(1)(b) of the Electoral Act
[Chapter 2:01]. The following facts and questions for determination
are filed by the Appellant to assist the Magistrate to prepare the
stated case for transmission to the High Court.
Statement
of Facts
1. The Appellant
received a Notice of Objection (dated
.
)
on the
.
.
2. A notice
of Appeal against the objection was filed on
,
to comply
with the stipulated time limit.
3. A notice
of Hearing was served on Appellant on
. The date
of hearing was the
.
4 Appellant
was born in Zimbabwe and has resided in Zimbabwe for all his/her
life. Appellant renounced his/her citizenship in terms of the Citizenship
Amendment Act, No 12 of 2001 on the
.
at which
time his/her passport was automatically stamped to indicate that
he/she was a permanent resident.
Questions
for Determination
1. Since
Schedule 3 Section 3(3) of the Constitution of Zimbabwe refers to
an election held "for that constituency" Appellant is
not disqualified from voting since the forthcoming election is a
presidential and not parliamentary election, and hence is not held
for any particular constituency. The disqualification referred to
in section 3(3) of the Constitution cannot be held to refer to a
Presidential election which is held on the common roll and not on
the constituency rolls.
2. In terms
of Section 25(1) of the Electoral Act (2:01), no objection shall
be taken or a notice sent during the period between the issue of
a proclamation and the close of polling at the election. A proclamation
was gazetted on 10 January 2002 in terms of the Electoral (Presidential
Election) Notice 2002, SI 3A of 2002. The voters roll for the Presidential
Election has already been closed in terms of section 4 of the proclamation.
Although the proclamation was gazetted on 10 January 2002, the notice
of Objection was issued on the
.. and therefore the notice
of Objection is null and void. The notice of Objection was issued
and served at a time when the roll could no longer be altered because
it had been closed.
3. The Appellant
is entitled to remain on the voters roll by virtue of the fact that
she/he has been a permanent resident since 31 December 1985, as
required by section 3(1)(b) of the Third Schedule of the Constitution
of Zimbabwe and has a constitutional right to vote in the presidential
election. Appellant has been a permanent resident all her/his life
as a citizen of Zimbabwe in terms of the Constitution and the Citizenship
Act, since the rights accorded to a citizen include the right of
permanent residence.
4. Since
the Appellant is not entitled to vote on the basis of citizenship,
she must be given the opportunity to apply to register on the basis
of residence in the country since 31 December 1985.
5. The Appellant
also has the requisite residence qualifications to be registered
as a voter in the
constituency in terms of section
20(1) of the Electoral Act (2:01).
6. The Constituency
Registrar who signed the notice of Objection that Appellant received,
or who delegated signature of this document, was not properly appointed
as the Constituency Registrar for the constituency in which Appellant
is registered and Appellant puts the authority in issue and requires
proof of authority for the objection.
7. The Constituency
Registrar who purported to sign the notice of Objection is purportedly
acting as the Constituency Registrar of both Harare Central and
Harare East Constituencies, in breach of the Electoral Act.
8. The Objector,
Respondent in these papers, has not put any evidence before this
Honourable Court on which a finding can be made by this Honourable
Court that I am not entitled to be registered as a voter; no affidavit
by the respondent has been filed to establish the facts upon which
he relies and no witnesses from the Registrar Generals office have
been called. The Objector has simply filed "a brief statement
of the facts" which is not signed and is not sworn and therefore
cannot be accepted as evidence. Appellant submits that there is
no evidence before this Honourable Court on which it can be found
that Appellant is not entitled to vote and on that ground alone
the objection should be struck down.
9. The Notice
of Objection is fatally invalid as it simply states that Appellant
has ceased to be a citizen of Zimbabwe as if this were the only
category of persons that can vote in a Presidential election. In
terms of s3(1) of the third schedule to the Constitution of Zimbabwe
a permanent resident may vote. As the Objector has not alleged that
Appellant has not been a Permanent Resident in terms of a written
law since 31 December 1985, the grounds of Objection do not show
a prima facie case that Appellant should be removed from
the voters roll and is therefore invalid.
The Appellant
will file Heads of Argument on these matters to be put before the
High Court when the stated case has been put before a judge of the
High Court.
Dated at
this
day of
2002
Appellant
(address)
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