ACHPR dismisses diaspora vote case

The African Commission on Human and Peoples Rights has dismissed claims by some South African based Zimbabweans who argued that restrictions by the government on diaspora votes violated the African Charter.

The Commission, a quasi judicial body for the promotion and protection of human rights in Africa, established in terms of the African Charter on Human and Peoples rights, in a communique on October 20, 2021 said restrictions on the diaspora vote did not violate the African Charter.

Zimbabweans abroad have been clamouring for a diaspora vote but the government declared they do have a right to vote but they need to travel back to their relevant constituencies to do so.

The commission noted that the right to participate in government processes, within the meaning of Article 13 (1) of the African Charter does not extend so far as to guarantee non-residents the right to vote from abroad.

This case filed by Gabriel Shumba, Kumbirai Tasuwa Muchemwa, Gilbert Chamunorwa, Diana Zimbudzana and Solomon Sairos Chikohwero (victims) represented by the Zimbabwe Lawyers for Human Rights was received at the Secretariat of the African Commission on December 27, 2012 against the Republic of Zimbabwe.

The applicants, all Zimbabwean citizens who have lived and worked in South Africa for varying periods of time, argued they were loyal and patriotic, having previously registered for and voted in past elections.

They said they continued to retain active family ties in their home country, intend to return and permanently live in Zimbabwe and keenly monitored events including electoral processes.

According to the complainants, the placement of a residence qualification on who can vote in referendums and elections is a form of discrimination against Zimbabwean citizens living abroad.

“The complainant stated that this discrimination became more acute when persons in government service and their spouses outside the country are not placed under the same restrictions. According to the complainant, equal treatment requires that all Zimbabwean citizens be allowed to participate in the Government of their country regardless of their place of residence, and that all citizens be afforded the same rights and privileges regardless of the nature of their work abroad,” read the case.

The complainants contended the denial of the victims’ right to participate in processes is also upheld in the Electoral Act, which subjects the victims to conditions and restrictions not applicable to other citizens residing in Zimbabwe.

The Zimbabwean government argued that reasonable restrictions do not amount to discrimination, noting that the International Covenant on Civil and Political Rights (ICCPR) enshrines the right to vote as a fundamental human right, however Article 25 of the ICCPR allows for reasonable restrictions on the right to vote, and accordingly, the African Charter should be interpreted in the same spirit.

“Except for military personnel or other specially designated groups of people such as diplomats, external voting has not been historically extended to non-resident citizens worldwide,” said the government

The government also submitted that “external voting is by its nature expensive and with economic sanctions having been imposed on Zimbabwe, it would be an unbearable burden to require that Zimbabwe internationalise its elections.”

The government also claimed Zimbabweans abroad are not affected by political decisions taken in Zimbabwe and they cannot cast a meaningful vote due to their lack of knowledge of the political reality on ground, are justifications for restricting external voting.

“Non-resident Zimbabweans who are voluntary migrants are not denied the right to vote per se, as they can always travel back to their relevant constituencies in the country to vote and noted that voting has been traditionally subject to citizenship and residency requirements.”

The government argued lack of legal provisions for absentee voting is not disenfranchisement, as it only limits the right to vote but did not entirely eliminate its exercise.

However, the Commission observed the government’s assertion that non-residents are not affected by the outcome of elections therefore should not be granted the same voting rights as residents was not entirely accurate.

“Non-residents will still be affected by the outcome of elections, at least whenever they come into contact with their country of citizenship or through laws which may have extra territorial application. The Commission is, however, of the view that non-resident and resident citizens are generally not affected to the same degree by the outcome of elections,” read the case.

The Commission held that ‘for there to be a violation of Article 3 of the African Charter, it must be demonstrated that the victim of the alleged violation was not accorded the same protection or treatment that is usually accorded to other persons in similar circumstances’.

In light of that, is, the Commission notes “its conclusions in relation to the right to non- discrimination, specifically, that the Victims were not similarly situated or in an analogous position to other resident citizens and persons in government service, which justifies the Respondent State’s differential treatment of the victims.”

Regarding Article 2 of the African Charter, the Commission concluded that the victims have not been subjected to unequal treatment, as they have not been denied protection that is accorded to persons in ‘like circumstances’ therefore for the foregoing reasons, the Commission declares that there are no violations of Articles 2, 3, 9, and 13 (1) of the African Charter.

Read full case here: Communication 430_12_shumba v zimbabwe_ENG.pdf

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