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Zimbabwe exiles petition Supreme Court over vote
February 01, 2005

ZIMBABWEAN exiles have petitioned the country's Supreme Court in a landmark case seeking an order compelling the government to allow them to vote in the March parliamentary elections and every other election after.

A group calling itself the Diaspora Vote Action Group (DVAG) whose members say they are registered voters has approached Zimbabwe's Supreme Court which also acts as the Constitutional Court seeking to overturn a government decision to limit voting by Zimbabweans outside the country to only members of the armed forces and embassy officials.

South African authorities have confirmed there are two million or more Zimbabweans living in that country, while the British government officials say there are 150 000 Zimbabweans living legally on their shores.

In an urgent application filed through their lawyer, Beatrice Mtetwa of Kantor and Immerman on Friday, the DVAG contended that the government of Zimbabwe was in breach of the Constitution by excluding them from the voting process.

As we reported here last November, Zimbabwe's Justice Minister Patrick Chinamasa said Zimbabweans outside the country at the time of voting would not be allowed to cast their ballots.

"There is a travel ban against the Zanu-PF leadership from the president down to the lowest Zanu-PF cadre to travel to the European Union, the United States, Canada, Australia and New Zealand," Chinamasa said.

"How would Zanu-PF be able to canvass support from Zimbabweans in the Diaspora when its political leadership suffers from a travel ban in those countries?"

Makusha Mugabe, a spokesman for the Diaspora Vote Action Group told New on Monday night that the case would test the independence of Zimbabwe's judiciary.

"The courts are there to serve the people and it is in the interests of the majority that Zimbabweans outside the country are allowed to vote," said Mugabe. "This will be the first time Zimbabweans in the Diaspora -- apart from the patriotic vote from the embassies -- are allowed to vote.

"Small countries like Mozambique have just had successful elections with people voting from as far as Portugal, the Far East and the sub-continent yet millions of Zimbabweans living outside the country are prevented from exercising that freedom."

The Zimbabwe government was expected to file its opposing papers on Tuesday.

If the order sought by the group is granted, it could force the government to postpone the elections to allow for the millions of Zimbabweans to register or inspect the voters' roll.

In the petition's leading affidavit, Jefta Madzingo, who is based in Birmingham, England, said: "The current exclusion of Zimbabweans in the Diaspora in the participation of the country’s political sphere is in my view not only discriminatory but has no basis in law."

Following is an extract from Madzingo's affidavit:
"The government of Zimbabwe has fully accepted that we are Zimbabweans who are in the main temporarily resident outside the country for economic and other reasons and that we will, in all likelihood return to Zimbabwe in due course. This acceptance has manifested itself through programmes such as the Homelink in terms of which Zimbabweans in the diaspora send to Zimbabwe, through government channels, much needed foreign currency which is in turn used for such necessary imports such as fuel and electricity.

In addition to the Homelink scheme, the government has also introduced the Diaspora Housing Scheme in terms of which Zimbabweans in the diaspora are encouraged to buy homes in Zimbabwe through the Reserve Bank of Zimbabwe and government arranged schemes which are meant to also encourage foreign currency inflows into Zimbabwe. It is therefore fully accepted by the government of Zimbabwe that Zimbabweans in the diaspora are contributing significantly in the economy. I attach hereto as Annexure "A" a copy of an article from the Financial Gazette of 5th January, 2005 which summarises the success of the Homelink Scheme.

9. I contend that all of these arrangements are a clear acceptance that Zimbabweans in the diaspora are an integral part of the Zimbabwean economic and social life and they are contributors to the development of the country. The housing scheme in particular is a clear acceptance by the government that Zimbabweans in the diaspora will be returning to Zimbabwe in due course and that their absence is seen as temporary and I am able to say that this is in fact correct for the majority of Zimbabweans in the diaspora. For these reasons, I contend that Zimbabweans in the diaspora must of necessity also participate in the country’s political processes and I contend that their exclusion from such process is unfair, discriminatory and not in line with the other participation that the government has encouraged in other aspects of life in Zimbabwe.

10. In this respect, I point out that the government, through all of these schemes, is now fully aware and knowledgeable about the population of Zimbabweans in the diaspora and where Zimbabweans are generally concentrated. This knowledge became clear when the government, through the Reserve Bank of Zimbabwe, went on its road show to advertise and publicise the Homelink programme. This road show was able to target areas with large populations of Zimbabweans and I contend that the government therefore knows where Zimbabweans are and it should not be difficult to use this knowledge and these centres in order to set out voting points for the upcoming general elections.

11. I contend that as a Zimbabwean in the diaspora, I am entitled to vote in the upcoming general election and I believe that the provisions of Section 20 of the Electoral Act Chapter 2:01 accepts that certain voters may not at all times be in their normal constituencies as and when general elections are held and I believe that there should be no discrimination whatsoever between voters who are resident out of their constituency by virtue of being out of the country and those voters who are not resident in their constituencies although they will be still in the country.

11.1 I also contend that the provisions of Section 32(2) of the Electoral Act clearly envisage that voters who qualify many not always be resident in Zimbabwe and I contend that it could not have been the intention of the legislature to exclude from the election process persons such as myself who are accepted to be temporarily out of the country although we do qualify as voters in terms of the Act. I repeat that once the government expects us and encourages us to participate in the economic and social development of the country, it must of necessity ensure that we also participate in the country’s political process. I contend that the provisions of Section 32(2) of the Electoral Act would entitle a Constituency Registrar to retain our names on the voters’ roll and to have those Zimbabweans who are now qualified voters to exercise their right to vote wherever they might be.

12. I also contend that the current exclusion of voters such as myself from voting is discriminatory and does not quite accord with provisions of the Bill of Rights which guarantees Zimbabweans certain basic rights. I contend that the current exclusion curtails our rights to freedom of expression as it clearly curtails our right to express ourselves politically through the electoral process. I therefore contend that such exclusion is clearly unconstitutional.

12.1 The exclusion further contravenes, in my view, provisions of Section 21 of the Constitution of Zimbabwe which guarantees the citizens of Zimbabwe freedom of association and the current exclusion certainly means that we cannot exercise our right to freely associate with those political organizations with whom we might share common interests, ideals, etc.

12.2 I further contend that the Constitution of Zimbabwe, in terms of Section 22 thereof, allows Zimbabweans the freedom to move freely and the movement of Zimbabweans for economic reasons to other parts of the world should not therefore be curtailed by denying them the right to participate in the country’s political processes through elections. I contend that the current exclusion of Zimbabweans who are in the diaspora from participation in the political process has the effect of seeking to curtail such Zimbabweans right to freedom of movement."

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