Farayi Machamire 11 August 2017
HARARE – The Zimbabwe Electoral Commission (Zec) will not allow three
jailed MDC officials to vote in next year’s elections because they would
have spent 12 consecutive months outside their constituencies by the time
the polls are held.
In an opposing affidavit to the bid by Yvonne Musarurwa, Tungamirai
Madzokere and Last Maengahama, who are serving prison terms of 20 years
each after they were convicted last year for murdering a policeman, Zec
said the trio would not be eligible to participate in the plebiscite.
The trio is seeking an order compelling Justice, Legal and Parliamentary
Affairs minister Emmerson Mnangagwa, Zec and its chairperson Justice Rita
Makarau to register them on the national voters’ roll and facilitate their
voting on election day.
“No provision, in the 2nd and 3rd respondents’ analysis of the law, is
made for the registration of inmates as voters and or their casting of
ballots on polling day.
“In terms of section 23 (3) of the Electoral Act, a person ceases to be a
resident in a particular constituency if for a continuous period of twelve
months he/she has ceased to reside in that constituency,” Makarau said.
The trio was incarcerated on December 12, 2016, and would have spent over
12 months behind bars by the time of next year’s elections.
Makarau further said the only other lawfully-recognised method of casting
one’s vote during an election, other than physically presenting oneself at
a polling station on polling day is postal voting.
However, the eligibility of this vote is limited to persons on duty in the
service of government outside the country, members of a disciplined force
and electoral officers on polling day.
It does not cover the applicants, Makarau said.
“Having placed before the honourable court what I and the 3rd respondent
believe to be the most pertinent facts and law in the determination of
this matter, I hasten to state that the issue that has been brought before
the court by the applicants may be one that requires a legislative
solution and not a judicial one.
“I, however, leave the determination of that to the honourable court
constant with my averment at the outset that the 2nd and 3rd respondents
will abide by the decision of this honourable court,’ said Makarau.
Justice ministry permanent secretary Virginia Mabhiza said in her
affidavit the MDC officials were trying to have all the prisoners allowed
“I am advised by my legal practitioners, which advise I take, that one can
only be compelled to do what he is permitted by law to do and that as long
as the impugned Act does not violate the Constitution, the only remedy
available for the applicants is to go to Parliament and ask Parliament to
change the law,’ she said.
The three prisoners, who are represented by Jeremiah Bamu of the Zimbabwe
Lawyers for Human Rights (ZLHR) consider themselves as political prisoners
and argue that they were asserting their constitutional rights
particularly the right to vote in elections and referendums as enshrined
in Section 67 (3) (a) of the Constitution.