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ACHPR orders government to allow exiled Zimbabweans to cast votes in referendum and general elections
Zimbabwe Lawyers for Human Rights (ZLHR)
March 11, 2013

The African Commission on Human and Peoples’ Rights (ACHPR) has passed a provisional measure allowing exiled Zimbabweans and those living abroad to vote in the Referendum slated for Saturday 16 March 2013 and the general elections scheduled thereafter.

In a fresh kick in the teeth of the government, the ACHPR recently communicated its provisional measures to Zimbabwe Lawyers for Human Rights (ZLHR) directing the government to allow Zimbabweans living abroad to vote in the March 16 Referendum and the general elections that will follow, irrespective of whether or not they are in the service of the government.

The ACHPR directed the government to provide all eligible voters, including Gabriel Shumba, Kumbirai Tasuwa Muchemwa, Gilbert Chamunorwa, Diana Zimbudzana and Solomon Sairos Chikohwero, the same voting facilities it affords to Zimbabweans working abroad in the service of the government and to take measures to give effect to its obligations under the African Charter on Human and Peoples’ Rights (African Charter) in accordance with Article 1 of the African Charter, including in areas of free participation in government.

The government, the ACHPR said must report back on the implementation of the provisional measures requested within 15 days of receipt of the ACHPR’s decision.

In passing its provisional measures, the ACHPR said the complaint filed by Shumba, Muchemwa, Chamunorwa, Zimbudzana and Chikohwero revealed “prima facie violation of the African Charter”.

The ACHPR passed the decision at its just ended 13th extraordinary session which was held in Banjul, The Gambian capital from 19 to 25 February 2013 after scrutinizing the country’s voting laws, which prevent Zimbabweans living in foreign countries from participating in polls.

The decision of the ACHPR follows a complaint filed on 27 December 2012 by ZLHR acting on behalf of Shumba, Muchemwa, Chamunorwa, Zimbudzana and Chikohwero against the Republic of Zimbabwe, which is a State party to the African Charter on Human and Peoples’ Rights.

The group of Zimbabweans led by exiled human rights lawyer Shumba, Muchemwa, Chamunorwa, Zimbudzana and Chikohwero, who are all Zimbabweans living in South Africa took the case to the ACHPR, which is the premier human rights enforcement mechanism of the African Charter on Human and Peoples’ Rights, on 27 December 2012 seeking to be allowed to participate in the Referendum using the postal vote system.

Being a party to the African Charter, Zimbabwe is bound by the ACHPR’s decisions although the organ lacks the force to implement its decisions, a situation exploited by countries such as Zimbabwe to disregard rulings.

In their complaint letter, Shumba, Muchemwa, Chamunorwa, Zimbudzana and Chikohwero, who are all Zimbabweans living in South Africa protested at being denied their right to vote in the forthcoming referendum and general election and alleged that the government had violated Articles 2, 3(1) and (2), 9 and (13) of the African Charter.

The exiled Zimbabweans’ case became even more vital given that the government has already set 16 March as the referendum date. The five Zimbabweans say although they work in South Africa, they intend to return home in the future as they don’t have citizenship or permanent resident status in that country. They also send money to relatives in Zimbabwe from time to time. Migration bodies say as much as 3 million Zimbabweans are living outside the country after fleeing political and economic turmoil.

The five felt hard done, particularly because they were allowed by Zimbabwean authorities to input into the constitution making process through participating in the public consultations, where they submitted their views through the Constitution Select Committee (COPAC) website as well as attendance at the diaspora meetings held by the constitution reform body in Johannesburg in 2010 only to be barred from voting on the final document.

Zimbabwean authorities say citizens who are registered as voters but are out of the country when elections, referenda, or other electoral processes take place cannot participate due to the restrictive provisions of the Constitution as read with the Electoral Act.

The law places a residence qualification on Zimbabweans who can be included on the electoral roll and can thus participate in electoral processes. All Zimbabweans outside the country are barred from using the postal ballot except for those on government duty. The law also allows such officers’ spouses to use postal votes. Shumba, Muchemwa, Chamunorwa, Zimbudzana and Chikohwero charge that State parties such as Zimbabwe should align their laws to the African Charter, which protects against all forms of discrimination as allowing national legislation to take precedence over the Charter, would result in wiping out the importance and impact of the rights and freedoms provided for under the Charter.

In other open and democratic African societies such as South Africa, Mozambique and Senegal, facilities are afforded to citizens who will be abroad on polling day to vote, even where they are not abroad on government service.

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