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orders government to allow exiled Zimbabweans to cast votes in referendum
and general elections
Zimbabwe Lawyers for Human Rights (ZLHR)
March 11, 2013
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 ACHPR said must report back on the implementation of the provisional
measures requested within 15 days of receipt of the ACHPR’s
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.
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
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.
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
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
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