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Legal Monitor - Issue 198
Zimbabwe Lawyers for Human Rights (ZLHR)
June 27, 2013

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Diaspora vote war intensifies

An exiled Zimbabwean who won his case to vote using the postal ballot at the African Commission on Human and Peoples’ Rights (ACHPR) has taken matters up in a bid to force Zimbabwe to comply with the continental tribunal’s ruling.

Pretoria-based Gabriel Shumba is pushing South Africa to tie any funding for Zimbabwe polls to a condition that people in the Diaspora are allowed to vote as per the ACHPR ruling. Cash-strapped Zimbabwe is seeking poll funding from regional countries and South Africa being the continent’s biggest economy is likely to be a major financier.

Shumba, who fled Zimbabwe in 2003 after being tortured by State security agents, was unable to vote in the March referendum despite winning the case he had brought before the ACHPR.

The human rights advocate had taken the Zimbabwe government to the ACHPR, an organ of the African Union, to force Harare to allow Zimbabweans living outside the country to vote using postal ballots.

Zimbabwe has so far defied the ruling from the continent’s body, leaving Shumba and millions other exiled Zimbabweans in the cold. With a watershed general election fast approaching, Shumba has now taken the matter up with South African President Jacob Zuma, the SADC appointed facilitator to the Zimbabwean political crisis.

In a letter to Zuma, Shumba states that South Africa should use its leverage as a potential funder of Zimbabwe’s elections to push President Robert Mugabe and Prime Minister Morgan Tsvangirai’s administration to allow postal voting for ordinary Zimbabweans living outside the country. “The purpose of this letter, therefore is to request the Presidency to –

a. Confirm whether there is any truth in reports that South Africa will fund the elections; and if so

b. Confirm the exact amount of the intended funding; and

c. Indicate whether the Presidency is aware of the Government of Zimbabwe’s defiance of the provisional measures laid down by the ACHPR; and

d. Indicate whether any conditions - such as compliance with internationally acceptable principles regarding the holding of elections and compliance with continental human rights instruments and rulings of the ACHPR in particular - will be imposed on the transfer of South African funds towards the holding of an election in Zimbabwe,” reads the letter recently dispatched to Zuma’s offices by Shumba’s lawyer Willie Spies of Hurter Spies Incorporated of South Africa.

Spies said Shumba is a representative of “a specific class of persons, namely Zimbabwean citizens residing in South Africa and elsewhere in the world due to the circumstances prevailing in Zimbabwe since the violent oppression of the opposition by government agencies reemerged in 2000”. Shumba, Kumbirai Tasuwa Muchemwa, Gilbert Chamunorwa, Diana Zimbudzana and Solomon Sairos Chikohwero, represented by Zimbabwe Lawyers for Human Rights, approached the ACHPR in February this year on the Zimbabwean government’s failure to make provision for exiles to cast their votes in national elections. ACHPR directed Zimbabwe to provide all eligible voters the same voting facilities it affords to Zimbabweans working abroad in the service of the government. The ACHPR ordered Zimbabwe to take measures to give effect to its obligations under the ACHPR in accordance with Article 1 of the African Charter, including in areas of free participation in government.

Zimbabwe, which was ordered to report back to the ACHPR within 15 days from the date of the communication, has failed to adhere to the ruling of the tribunal.

“Notwithstanding the fact that no effort has been made to provide for my client and hundreds of thousands of Zimbabwean voters in Diaspora to cast their vote, the President of Zimbabwe has been pressing ahead with elections in defiance of, amongst others, the rulings of a respected African human rights institution such as the ACHPR,” said Spies. 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.

Zimbabweans living outside the country have been fighting to be allowed to vote but have faced massive resistance from government. The Constitutional Court is currently seized with a case brought by a South African-based bus driver who wants to be allowed to vote in the upcoming elections.

Tavengwa Bukaibenyu wants the Constitutional Court to declare that sections of the Electoral Act which bar postal voting for ordinary Zimbabweans infringe on his rights to have a voice on who governs Zimbabwe.

But Justice Minister Hon. Patrick Chinamasa and Registrar-General of Voters Tobaiwa Mudede, who are cited as respondents, are opposing the application. They both argue that postal voting for all Zimbabweans living outside the country would present a logistical and financial nightmare.

In his Notice of Opposition, Hon. Chinamasa says postal voting would prejudice his Zanu-PF party, citing targeted travel and financial sanctions imposed on President Mugabe and a few of his close government, military and party officials by Western countries in 2002. “The granting of visas at the discretion of countries that have imposed sanctions against Zimbabwe means that a number of Western countries are only accessible to members of the MDC formations. That fact militates against a conducive level playing field obtaining in those countries,” argues Hon. Chinamasa.

The matter was recently postponed by the court while it monitors proposed amendments to the Electoral Act.

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