Unpacking The Right To Vote.

 THE DEONTOLOGY.

(Study the law with Blessed Mupatsi and Nompilo P. Nkomo).

The Constitution of Zimbabwe Amendment (No.20) Act, 2013 (hereinafter referred as ‘the Constitution’) recognizes representative democracy by ensuring the enforceability of rights allowing citizens free, fair, and regular elections. Dambisa Moyo, Edge of Chaos: Why Democracy is failing to Deliver Economic Growth and how to fix it (2018) canvasses the importance of the right to vote, she submits that people lost their lives for political rights. However, Zimbabwe like any other democratic country has experienced a decline in voter participation. In the 2018 election, 45.67% of eligible voters participated in the elections. Therefore, the paper will unpack the right to vote as guaranteed in the Constitution and how the right can be fully realised.

67 Political rights

(1) Every Zimbabwean citizen has the right—

(a) to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and

(b) to make political choices freely.

(2) Subject to this Constitution, every Zimbabwean citizen has the right—

(a) to form, to join and to participate in the activities of a political party or organisation of their choice;

(b) to campaign freely and peacefully for a political party or cause;

(c) to participate in peaceful political activity; and

(d) to participate, individually or collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.

(3) Subject to this Constitution, every Zimbabwean citizen who is of or over eighteen years of age has the right—

(a) to vote in all elections and referendums to which this Constitution or any other law applies, and to do so in secret; and (emphasis)

(b) to stand for election for public office and, if elected, to hold such office.

(4) For the purpose of promoting multi-party democracy, an Act of Parliament must provide for the funding of political parties.

The writer will focus on section 67 (3) (a) of the Constitution which safeguards the right of citizens to vote in all elections and referendums provided for in the Constitution or any other law. Taking a look at Zimbabwe’s well-known history, the denial of the right to vote was used to entrench white supremacy and to marginalise the great majority. As a result, it is for this reason that the right to vote must be vigilantly respected and protected. To commence with, it is momentous to note that the right to vote is meant for Zimbabwean citizens of or over 18 years. A person is a citizen of the Republic by birth, descent or registration as provided for in section 35 of the Constitution. With regards to, Richter v Minister of Home Affairs 2009 (3) SA 615 (CC) the court recognised the importance of citizens’ exercise of the right to vote as an essential working component of democracy. It held that in the absence of voters’ registering to vote and actively exercising the right to vote, democracy would be gravely endangered. The Court noted that democracy is strengthened and invigorated by each vote cast and that when citizens mark their ballots they remind those elected that their position is based on the will of the people and will remain subject to their will (emphasis).

However, the constitutional provision only grants the right to vote thus, there is no duty to vote therefore, legislature cannot make voting mandatory because the instrument would be unconstitutional, null and void. In New National Party of South Africa v Government of the Republic of South Africa 1999 (4) BCLR 457 (C) at 476G precedent was set concerning the issue of mandatory voting ‘eligible voters have the inalienable right to abstain from voting, should they choose to do so’. However, (Dambisa Moyo) as a mechanism to enhance the quality, democracy argues the need to adopt mandatory voting and voter education policies. Other jurisdictions such as Singapore, Belgium and Australia have successfully implemented mandatory voting, with Australia having a 90% voter turnout.

Into the bargain, as already alluded above that historically the right to vote was used to entrench white supremacy and to marginalise the great majority, however, the Constitutional provision as read in pari materia with section 56 of the Constitution ameliorates that undemocratic act as it provides for equal voting rights. On the contrary, the Constitution deprives the following citizens of the right to vote; the mentally disordered or intellectually handicapped persons, declared by order of a court to be incapable of managing his or her affairs and found guilty of electoral offences and declared disqualified by a competent court. Regarding the participation of women, disabled persons, and youth they all have equal voting rights. However, one can argue that the Electoral Act [Chapter 2:13] does not fully protect the voting rights of women and youth. The German Constitutional Court, in dealing with equality of the vote stated that every ballot must have the same potential value and that every voter must have an equal opportunity to influence the outcome of the election (emphasis). Moreso, the writer submits that the Electoral Act is discriminatory based on residential qualification, it declares that unless a person is resident in a constituency he or she is not entitled to be registered as a voter or vote in an election. Furthermore, postal voting is not an option for anyone except those who are absent from their constituencies on election duty or member of a disciplined force or who are outside Zimbabwe on Government service. Therefore, the limitation of postal voting disenfranchises millions of Zimbabweans that have left Zimbabwe due to economic hardships. Additionally, the limitation is absurd because it places an unreasonable burden on citizens living abroad, particularly given the fact that government officials and their households are not required to travel home to vote but have voting facilities provided for them at embassies and consulates abroad. Thus, one can argue that citizens do not have equal opportunities to vote, in light of S v Makwanyane & Anor CCT 3/94 the Bill of Rights must be given broader meaning to accommodate constitutional goals. On a different note, the right to vote must be done in secret. 

Recently, prisoners right to vote has been a contentious issue, in June 2017 prisoners approached the High Court seeking an order compelling the Minister of Justice, Legal and Parliamentary Affairs Hon. Ziyambi Ziyambi, Zimbabwe Election Commission Chairperson Justice Priscilla Chigumba and the Zimbabwe Election Commission (ZEC) to register them on the national voters roll and to facilitate their voting on election day. The application is being heard by the High Court. The Constitution of Zimbabwe Amendment (No. 19) Act, 2009 deprived prisoners serving sentences of six months or more the right to vote. However, the 2013 Constitution did not include prisoners on the list of persons disqualified from voting. As mentioned above, the constitution gives citizens (emphasis) the right to vote in all elections and referendums provided for in the Constitution or any other law. Furthermore, section 239 (c) of the Constitution mandates ZEC to register voters therefore the electoral body must take reasonable steps to ensure that eligible voters are registered. 

In August v Electoral Commission 1999 (3) SA 1 (CC) [16], the Commission’s disenfranchisement-by-omission of prisoners was challenged. The omission disenfranchised prisoners without constitutional or statutory authority. The court accordingly ordered the Electoral Commission to make all reasonable arrangements to ensure that people who were imprisoned during the periods of registration could register and that all registered prisoners could vote on election-day. One can argue that section 67 (3) (a) is subject to section 86 of the Constitution.

 

86 Limitation of rights and freedoms

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom… (emphasis).

Concerning the criteria for a constitutional limitation of rights and freedoms in the Bill of Rights see Blessed Mupatsi, the Vaccine Question http://lawzim.blogspot.com/2021/11/the-vaccine-question.html (2021). In the Canadian Supreme Court decision in Sauvé v Canada (Attorney General) [1993] 2 SCR 438 a case of legislative disenfranchisement of prisoners had been justified by the Canadian government on the basis that the disqualification served, inter alia, objective of enhancing civic responsibility and respect for the rule of law. A majority of the Supreme Court held the legislation to be an invalid infringement of the right to vote, emphasising that the state had failed to discharge its considerable burden of justifying the limitation of a right that was so central to democracy. Moreso, the South African Constitutional Court in Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) 2005 (3) SA 280 (CC) [32] interrogated the constitutionality of the Electoral Laws Amendment Act 34 of 2003, which effectively disenfranchised prisoners serving sentences of imprisonment without the option of a fine, as it prevented them from registering as voters and voting while in prison. The government treated the provision as a limitation of the right to vote and it was meant to preserve the integrity of the voting process. The Constitutional Court with the aid of Sauvé v Canada (Attorney General) ordered the Electoral Commission and the Minister of Correctional Services to ensure that all prisoners were afforded an opportunity to register as voters for and to vote in the elections.

Conclusively, the paper examined at length section 67 (3) (a) of the Constitution which safeguards the right of citizens to vote in all elections and referendums provided for in the Constitution or any other law. Moreso, the thesis discussed the right to vote of prisoners, which is a contentious matter currently in Zimbabwe.