Tarisai Machakaire 20 August 2017
HARARE – Since the attainment of independence, Zimbabwean prisoners – who
have the same rights to decide on their next leader as every other
Zimbabwean citizen – have never been accorded the right to vote.
But according to the Constitution of Zimbabwe, all citizens of Zimbabwe
who are aged 18 or above have the right to vote.
MDC spokesperson and lawyer Obert Gutu said there is no-where in the
Electoral Act or any other law where it’s stated that prisoners have no
right to vote.
“The Constitution is the supreme law of the land and all laws that are
inconsistent with the Constitution are null and void to the extent of the
inconsistency. Prisoners in Zimbabwe’s correctional facilities have the
right to vote and as such, Zimbabwe Electoral Commission (Zec) must put in
place the necessary logistical facilities to ensure that prisoners can
vote in next year’s elections. Recently in Kenya, prisoners were actually
able to vote for candidates of their choice.”
Human rights lawyer Kudzai Kadzere said responsible authorities ought to
adequately inform prisoners that jail did not strip them of their voting
“The Constitution says that every Zimbabwean has a right to vote but it is
not an absolute right. Any law that may suggest that prisoners have no
voting rights would be discriminatory. When suspects are sentenced in the
criminal court they are not told that as they lose their right to movement
they also lose voting rights.
“…maybe this actually calls for alignment of some of the country’s
subsidiary laws to the Constitution. The electoral commission has an
obligation to make sure it fulfils safeguard of prisoners voting rights.
In countries like South Africa, prisoners have been voting.
“The argument of Zec has been that they cannot set up a polling station at
prison and, maybe the prisoners need to take it a bit further and fight
for their constitutionally enshrined right.”
Another lawyer Liberty Gono said: “It would only be fair that everyone is
given that opportunity if a person is to decide not to vote then that
would be a personal decision. A prisoner who wanted to vote but was not
allowed because of various reasons will not be accountable to any other
decision that the elected government will make on his behalf.”
In a response to an application made by three MDC activists challenging
their voting rights Zec’s position was that it would not allow them to
vote next year 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.