Constitution doesn’t provide for Diaspora vote, shouldn’t 

Tinomudaishe Chinyoka Correspondent
The Constitutional Court has heard arguments in the case about the Diaspora vote. However, outside of the legal arguments, we need to have an objective discussion on the Diaspora vote. Far from the emotional blackmail employed by those who claim that their remittances saved the country in 2008, and far from the frayed nerves of those afraid to say, as is the case, that our Constitution does not in fact give anyone the right to vote from the Diaspora.

The debate around the Diaspora vote has developed around two themes, each offered by either side in the conversation.

On the one hand, those who advocate for the right to vote from abroad have argued that they are constitutionally entitled to vote. They have also said leaving Zimbabwe was never a question of choice, but necessity due to economic hardships.

As a result, they never intended to abandon their rights as citizens of Zimbabwe, one of which is the right to vote.

The Zimbabwe Electoral Commission (ZEC), as the body mandated to deliver elections, has raised a resources problem, pointing out that there simply is no money for a Diaspora vote.

Another reason given by the former head of ZEC Justice Makarau was that the current legislative framework does not provide for a Diaspora vote: a statement that has attracted the rejoinder that harmonisation of electoral laws with the Constitution would address.

Underlying these different views is the suspicion within the opposition and those who advocate for a Diaspora vote that the real reason why the Government will not allow for Diaspora to vote is the fear that most (if not all) such votes will go to the opposition.

Given how politically engaged and reasonably well-resourced people in the Diaspora are (note their constant reminders about billions in remittances), it is argued that turnout from the Diaspora alone would be enough to ensure that the opposition wins elections in Zimbabwe.

Whether these suspicions and assumptions have foundation is a subject that rarely features in the debate.

I would like to suggest that our conversation on the Diaspora vote has been on a tangent, and not addressed the issue, in addition to both sides being wrong.

There is nothing by way of evidence to suggest that people in the Diaspora are pro-MDC supporters. To the contrary, one can point to anecdotal evidence showing that in the UK, for example, once Welshman Ncube wrote to the British Home Office indicating that letters purporting to be from the MDC supporting asylum claims were to be treated as bogus, attendance at MDC events in that country dwindled and that right now, the MDC in the UK is dwarfed by ZANU-PF on membership, organisation, engagement and leadership. All of which still does not say how people would vote, but is at least enough to put into doubt the supposition that the Diaspora vote would automatically go to the opposition.

On the other hand, the “we cannot afford it” argument is fatally flawed.

Once the principle of a Diaspora vote is established, the logistics can be worked out. My view is that the “we can’t afford it argument” falls on the reality that we can’t afford many things that we do, and it never features then.

For me, it is about the principle.

And my view is that we have never truly engaged with the principle: does our Constitution provide for a Diaspora vote? In my view, it does not and crucially, should not. Yes, Zimbabweans have a right to vote. They also have freedom of movement and the right to education and the right to freedom of religion.

However, I cannot, as a Zimbabwean in the Diaspora, walk into a US army base in Panama and claim that my right to freedom of movement entitles me to do so without restriction, just as much as my Jehovah’s Witness nephew cannot go around proselytising to Muslims in Tehran on the basis of his right to freedom of religion in the Zimbabwe Constitution.

These rights are limited to the territorial jurisdiction of Zimbabwe.

In fact, the Bible on civil and political rights, otherwise known as the International Covenant on Civil and Political Rights (ICCPR), specifically states that state parties have an obligation to guarantee the rights enshrined in the covenant “in their jurisdiction”.

And that, in my view, is the crux of the matter: what is it about the right to vote that suggests that it is a right with extraterritorial reach?

Proponents of the Diaspora vote have not, to my mind, made a convincing argument beyond the preface “as a citizen I am entitled to vote”.

Citizenship alone cannot justify the migration of the state’s obligations to respect, protect, fulfil and promote the human rights in our Constitution to foreign shores.

In any event, if that had been intended, it could and should have been in the Constitution. The right would have been expressed as “every Zimbabwean, wherever they reside, has the right to vote from such place as they live at the time that elections are held”.

Hugh King wrote in 2009 that “the extent to which states parties owe their human rights obligations abroad is uncertain”.

International human rights has advanced since then, and some clarity has started to emerge, but this points to obligations being owed if the state’s actions also travel to foreign shores.

So, a country that sends drones to kill people abroad will have the obligation to respect the international humanitarian law and human rights principles it has signed up to in the conduct of its activities abroad. Put differently, the obligation to respect, protect and fulfil requires that the state be present at the point of expectation of said obligation.

If the state is not there, it cannot be expected to still owe a duty to fulfil.

A Zimbabwean girl living in Waziristan cannot sue the Government of Zimbabwe citing her right to education in the Zimbabwe Constitution if prevented from going to school there by religious fanatics.

Another issue that appears not to be addressed is that of representation. Our elections are constituency-based. That is the format we chose, other methods are available. We elect members of Parliament based on where we live, and we vote for our President from our constituency.

So, if ZEC went to London and started registering people to vote, which constituencies would they be voting in?

It cannot be as simple as “where they used to live”. What of those born in the Diaspora and now old enough to vote, where did they used to live? And how do you address the skewed numbers: some areas sent more people into the Diaspora than others, how do you delimit those constituencies?

The argument that we can have Diaspora MPs like they do in France is not available to us: it is in the constitution of France, but not in our Constitution.

Yes, we can amend the Constitution to add it, but then we will no longer be talking about the Diaspora vote as being a right that is owed now.

Other people have suggested that those in the Diaspora could just vote for President. This would certainly solve the constituency problem, but has several problems.

If I am registered in Gweru, but happen to be in Kamativi on election date, I cannot go to a polling station and say “while I know I can’t vote for my MP here, just give me the Presidential ballot as that election has nothing to do with constituencies”.

How is that going to be fair if those in Pretoria can’t? Plus, our Constitution does not say we have a right to vote a la carte. Once you start tinkering with a constitutional right, then you are no longer talking about that right, but a different one.