Communication 430/12 – Gabriel Shumba and Others (represented by Zimbabwe
Lawyers for Human Rights) v The Republic of Zimbabwe
Summary of the Complaint
1. The Secretariat of the African Commission on Human and Peoples’ Rights (the
Secretariat) received a Complaint on 27 December 2012 against the Republic of
Zimbabwe1 (the Respondent State) from Zimbabwe Lawyers for Human Rights
(the Complainant) on behalf of Gabriel Shumba, Kumbirai Tasuwa Muchemwa,
Gilbert Chamunorwa, Diana Zimbudzana and Solomon Sairos Chikohwero (the
Victims).
2. The Victims are all Zimbabwean citizens who have lived and worked in the
Republic of South Africa (South Africa) for varying periods of time, although
none holds South African citizenship or is a permanent resident of South Africa.
The Complainant avers that the Victims are all loyal and patriotic citizens of
Zimbabwe and that they had previously registered for and voted in past
elections. The Complainant submits that the Victims continue to retain active
family ties in their home country, and, intend to return and permanently live in
Zimbabwe. The Complainant adds that the Victims keenly monitor events in
Zimbabwe and retain a vested interest in its electoral processes.
3.
The Complainant alleges that despite the patriotism of the Victims and desire to
continue their involvement in the political affairs of their home country, the
Victims were denied the right to vote in the Constitutional Referendum of 16
March 2013 because they were unable to travel to Zimbabwe on polling day. The
Complainant further alleges that the Victims were prevented from voting despite
having participated in the Constitution drafting process, through public
consultations and meetings of the diaspora with Zimbabwean authorities,
specifically with the Select Committee of Parliament in 2010, in Johannesburg,
South Africa.
4. The Complainant alleges that the laws of Zimbabwe limit the right to vote on the
basis of residency, and contends that this is discriminatory, as all citizens of
Zimbabwe should be able to exercise their right to participate in government, as
provided for in the African Charter on Human and Peoples’ Rights. The
Complainant specifically refers to Section 58 of the Constitution of Zimbabwe (as
amended in 2007), which places a residency requirement for prospective voters,
and Section 72 of the Electoral Act of Zimbabwe (2005), which only allows
absentee voting through post for Zimbabweans on duty in government service
1
The Republic of Zimbabwe ratified the African Charter on 30 May 1986
1
and their spouses. The Complainant avers that since the Victims do not fall
within this category, they were denied their right to vote in the referendum.
Articles alleged to have been violated
5. The Complainant alleges violations of Articles 2, 3, 9 and 13 (1) of the African
Charter on Human and Peoples’ Rights (the African Charter).
Prayers
6. The Complainant requests the African Commission on Human and Peoples’
Rights (the Commission) to:
Procedure
i.
Find the Respondent State in violation of Articles 2, 3, 9 and 13
(1) of the African Charter; and
ii.
Urge the Respondent State to amend the Constitution of the
Republic of Zimbabwe and the Electoral Act to guarantee the
rights of the Victims to vote from abroad.
7. The Complaint was received at the Secretariat on 27 December 2012, and the
Secretariat acknowledged receipt of the same on 15 January 2013.
8. At its 12th Extraordinary Session, held from 18 – 25 February 2013 in Banjul, The
Gambia, the Commission decided to be seized of the matter. The Commission also
decided to issue Provisional Measures of its own initiative in accordance with
Rule 98(1) of its Rules of Procedure, requiring the Respondent State to:
i.
Allow all eligible Zimbabweans living abroad to vote in the
Referendum of 16 March 2013, whether or not they are in
government service or not, and at the general elections
immediately following the referendum, pending a determination
of the Communication;
ii.
Provide all eligible voters, including the Victims in this
Communication, the same voting facilities it affords to
Zimbabweans working abroad in service of the Government; and
iii.
Take measures to give effect to its obligations under Article 1 of
the African Charter including in areas of free participation in
Government.
2
9. By letter dated 26 February 2013, the Secretariat informed the Complainant of the
Commission's decision to be seized of the matter and invited the Complainant to
submit its arguments on Admissibility. By Note Verbale also dated 26 February
2013, the Secretariat also informed the Respondent State of the Seizure decision
and transmitted a copy of the Complaint, together with the notice of issuance of
Provisional Measures.
10. On 11 March 2013, in response to a correspondence from the Respondent State
alleging non-receipt of documents related to the Communication, the Secretariat
re-forwarded the Note Verbale along with the Complaint and the notice of
issuance of Provisional Measures to the Respondent State.
11. On 26 April 2013, the Secretariat received the Complainant’s arguments on
Admissibility, and by Note Verbale dated 2 May 2013, the Secretariat transmitted
the submissions to the Respondent State, and invited it to submit its observations
on the Admissibility of the Communication within two (2) months from the date
of the Note Verbale.
12. In response to a correspondence from the Respondent State dated 8 May 2013,
indicating non-receipt of the original Complaint, the Secretariat resent the
Complaint and the Complainant’s arguments on Admissibility to the Respondent
State and invited the latter to submit its observations within two (2) months in
accordance with the Rules of Procedure of the Commission.
13. On 13 May 2013, the Secretariat wrote to the Complainant updating the latter on
the status of the Communication. On 28 May 2013, the Secretariat sent a Note
Verbale to the Respondent State to retransmit the earlier Note Verbale of 8 May
2013.
14. On 12 August 2013, the Secretariat made a final request by Note Verbale for the
Respondent State to submit its observations and arguments on Admissibility.
15. The decision on Admissibility was deferred during the 54th and 55th Ordinary
Sessions of the Commission, pending submissions from the Respondent State.
16. At its 16th Extra-Ordinary Session, held in Kigali, Rwanda from 20 – 29 July 2014,
the Commission considered the Communication on Admissibility and decided to
declare it admissible.
17. On 6 August 2014, the Secretariat transmitted the text of the decision to the Parties
and requested the Complainant to submit on the Merits within sixty (60) days of
the notification.
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18. On 3 March 2015, the Complainant submitted on the Merits of the
Communication, which was transmitted to the Respondent State on 6 March 2015.
19. On 23 June 2015, the Respondent State submitted on the Merits, which was
forwarded to the Complainant on the same day.
20. The Commission deferred consideration on the Merits of the Communication
from its 57th Ordinary Session to the 27th Extra Ordinary Session.
The Law on Admissibility
Submissions of the Complainant
21. The Complainant submits that the Communication satisfies all the Admissibility
requirements contained in Article 56 of the African Charter and presents
arguments in support of that submission.
22. On Article 56(1) of the African Charter, it is the Complainant’s submission that
the Communication complies with the requirement of identity, and that no
request for anonymity was made. The Complainant argues therefore, that the
Communication satisfies the requirements in Article 56(1) of the African Charter.
23. In relation to Article 56 (2) of African Charter, the Complainant contends that the
Communication raises issues that are within the scope of the implementation and
operation of the Constitutive Act of the African Union (AU) as well as the African
Charter. Accordingly, the Complainant argues that the Communication satisfies
the requirement in Article 56(2) of the African Charter.
24. Regarding Article 56 (3) of the African Charter, the Complainant submits that the
requirement is met because the Communication is not written in disparaging
language which is disrespectful of the State’s institutions or the organs of the AU.
25. With regards to 56 (4) of the African Charter, the Complainant submits that the
Communication is based on existing operational laws such as the Electoral Act of
Zimbabwe and the Constitution of Zimbabwe. The Complainant therefore
contends that the facts are not based exclusively on news disseminated through
the mass media and that the Communication satisfies the requirements of Article
56(4) of the African Charter.
26. In relation to Article 56 (5) of the African Charter, the Complainant submits that
local remedies are non-existent and unavailable because “the provisions
complained of are provided for in the Constitution of Zimbabwe and as such
there are no prospects of success in litigation before the domestic courts”. The
4
Complainant contends that “it is not possible to challenge constitutional
provisions within the Zimbabwean legal system.”
27. Relying on the Commission’s decision in Socio-Economic Rights and
Accountability Project (SERAP) v Nigeria,2 the Complainant argues that a
complainant is only required to have recourse to remedies which are capable of
providing an effective means of redress. The Complainant further argues that
there are no local remedies available to the Victims because the Constitution of
the Respondent State does not provide for the rights sought to be vindicated by
the Victims.
28. The Complainant submits that in a similar situation in the case of Madzango and
Others v The Minister of Justice, Legal and Parliamentary Affairs,3 (the
Madzango Case) , the Supreme Court of Zimbabwe had stated that in the absence
of provisions in the Zimbabwean Constitution and the Electoral Act, the right
claimed cannot be granted. Hence, the Complainant argues further that “an
attempt to approach the courts on the legality of the issue in question would
simply be an exercise in futility as the Constitutional provisions on this issue are
very clear”. Accordingly, the Complainant argues that Article 56(5) of the African
Charter is satisfied as there are no effective domestic remedies to be exhausted.
29. On the requirement in Article 56(6) of the African Charter, the Complainant
submits that the Communication ought only to be submitted within a reasonable
period from the time when domestic remedies were exhausted or deemed to have
been exhausted. The Complainant argues that the present Communication
already complies with Article 56(6) of the African Charter since there are no
domestic remedies to exhaust and the Communication was filed as soon as it
became apparent that there would be no arrangements made for Zimbabweans in
the diaspora to participate in the referendum.
30. In relation to Article 56(7) of the African Charter, the Complainant submits that
the Communication satisfies the requirement because the issues in the
Communication have not previously been settled in conformity with the
principles of the African Charter of the United Nations, or the Constitutive Act of
the African Union or the provisions of the African Charter.
The Commission’s Analysis on Admissibility
31. Article 56 of the African Charter sets out seven conditions that a Communication
initiated under Article 55 of the African Charter must satisfy in order to be
Communication 338/07 - Rights and Accountability Project (SERAP) v Nigeria (2010) ACHPR
Madzango and Others v The Minister of Justice, Legal and Parliamentary Affairs (2005) Supreme Court of
Zimbabwe
2
3
5
declared Admissible, which apply conjunctively and cumulatively.4 The
Complainant submits that the present Communication satisfies all the conditions
for Admissibility required under Article 56 of the African Charter.
32. The Commission observes that notice was sent to the Respondent State on several
occasions requesting its observations on the Complainant's arguments on
Admissibility. The Respondent State however failed to submit its observations
within the prescribed time periods. The Commission recalls its decision in
Institute for Human Rights and Development in Africa (on behalf of Esmaila
Connateh and 13 others) v Angola,5 wherein the Commission concluded that in
situations where a State Party fails to submit its observations in accordance with
the Rules of Procedure in spite of notice to that effect, the Commission “has no
option than to proceed with its consideration of the Communication”.6
Accordingly, the Commission undertakes the following analysis on the basis of
information made available to it by the Complainant.
33. With regard to the requirement in Article 56(1) of the African Charter which
provides that Communications should “indicate their authors even if the latter
requests anonymity”, the Commission notes that the identity and the address of
the Complainant have been indicated. Accordingly, the Commission finds that the
Communication satisfies the requirements under Article 56(1).
34. In relation to Article 56(2) of the African Charter, the Commission notes the
submission of Complainant that the issues at hand are within the scope of the
Constitutive Act of the African Union and the African Charter. Article 56(2) of the
African Charter provides that Communications shall be considered if they ‘are
compatible with the African Charter of the Organisation of African Unity of with
the present African Charter’.7
35. The Commission recalls its jurisprudence that in order to satisfy the requirements
under Article 56(2), the Communication must demonstrate a prima facie violation
of the African Charter, and in this instance, the Communication alleges violations
of Articles 2, 3, 9, and 13(1) of the African Charter. The Commission notes that the
Communication 304/2005 - FIDH & Others v Senegal (2006) ACHPR para 38
Communication 292/04 - Institute for Human Rights and Development in Africa (on behalf of Esmaila
Connateh and 13 others) v Angola (2008) para 34
6
Communication 159/1996 - Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues
des Droits de l’Homme, Rencontre Africaine des Droits de l’Homme, Organisation Nationale des Droits de
l’Homme au Sénégal and Association Malienne des Droits de l'Homme v Republic of Angola (1997) ACHPR;
Communication 276/03 - Centre for Minority Rights Development (Kenya) and Minority Rights Group (on
behalf of Endorois Welfare Council) v Kenya (2009) ACHPR
4
5
The African Charter of the Organisation of African Unity has now been replaced by the Constitutive Act
of the African Union (AU Constitutive Act).
7
6
Respondent State is a State Party to the African Charter, therefore the
Communication falls within the rationae personae jurisdiction of the Commission.
Since the Communication is compatible with the Constitutive Act and the African
Charter and also indicates a prima facie violation of the African Charter, the
Commission finds that the Communication satisfies the requirements of Article
56(2).8
36. Concerning Article 56(3) of the African Charter, the Commission notes the
Complainant’s submission that the Communication was not written in
disparaging language. Pursuant to Article 56(3) of the African Charter,
Communications shall be considered if they ‘are not written in disparaging or
insulting language directed at the State concerned and its institutions or to the
Organisation of African Unity’. In this regard, the Commission does not observe
any such use of insulting or disparaging language. The Commission therefore
finds that the requirements of Article 53(3) are satisfied.
37. With regard to Article 56(4) of the African Charter, the Commission notes that the
Communication is based on information extracted from existing and operational
laws of the Respondent State. Article 56(4) of the African Charter requires that
Communications ‘are not based exclusively on news disseminated though the
mass media’. The Commission notes that the present Communication is not based
exclusively on news disseminated through mass media and finds that Article 56(4)
is satisfied by the Communication.
38. The Commission notes that the Communication satisfies Article 56(5) of the
African Charter because one of the exceptions to the requirement to exhaust
domestic remedies applies to the present Communication. The Complainant
invokes the exception on the grounds that effective domestic remedies are not
available because the violation is premised on a constitutional lacuna and there is
no prospect of success in challenging constitutional provisions within the
Respondent State’s legal system. It is on these grounds that the Complainant
argues that the Communication satisfies Article 56(5) of the African Charter.
39. The Commission recalls that Article 56(5) requires Communications to be ‘sent
after exhausting domestic remedies, if any, unless it is obvious that this procedure
is unduly prolonged’. As the Commission has previously observed, this
requirement is based on the principle that “the Respondent State must first have
an opportunity to redress by its own means within the framework of its own
domestic legal system, the wrong alleged to have been done to the individual.”9
Communication 333/06 - Southern Africa Human Rights NGO Network & Others v Tanzania (2010)
(ACHPR), para 51
9
Communication 71/92 - Rencontre Africaine pour la Defence des Droits de l'Homme v. Zambia (1997) ACHPR
8
7
40. In interpreting Article 56(5) of the African Charter, the Commission has
consistently noted that the use of the phrase “if any” in that provision means that
only domestic remedies that are available, effective and sufficient need be
exhausted by a Complainant.10 The Commission has also previously held that a
domestic remedy is considered to be available when a petition can be pursued
without impediment; is deemed effective if it offers prospects of success and is
sufficient if it is capable of redressing the complaint.11
41. The Commission recalls that the law on exhaustion of local remedies presupposes
i) the existence of domestic procedures for dealing with the claim; ii) the
justiciability or otherwise, domestically of the subject-matter of the complaint; iii)
the existence under the municipal legal order of provisions for redress of the type
of wrong being complained of; and iv) availability of effective local remedies, that
is, remedies sufficient or capable of redressing the matter.12 The Complainant here
contends that the subject-matter of the Communication does not lend itself to
domestic justiciability because it involves a constitutional challenge which has no
prospect of success in the Zimbabwean legal system.
42. In support of its argument, the Complainant has submitted that the issue in
dispute amounts to a constitutional challenge because the Constitution of
Zimbabwe does not provide for absentee voting in the case of Zimbabweans
living abroad other than those in government service. The Commission also
recalls the Complainant’s submission that a similar question was raised and
addressed by the Supreme Court of Zimbabwe in the Madzango Case. In that case,
the Supreme Court came to the conclusion that the rights sought to be enforced by
the Victims had no constitutional or statutory foundation in Zimbabwe. In effect,
the Supreme Court ruled that the right does not exist in the legal framework of
the Respondent State and that there is no prospect of success for any litigant
bringing a similar or related claim. The implication is that registered voters,
including the Victims who are abroad, will continue to find themselves in
situations where they cannot cast their votes from a foreign country, unless they
are able to travel back to their home country.
43. Recalling its jurisprudence that a Complainant will only be required to exhaust
domestic remedies that are available, effective and sufficient, the Commission
agrees with the Complainant that the requirement does not apply to the present
Communication. The Commission finds that this is a case where exceptions to the
requirement to exhaust domestic remedies should apply. The Commission
Communication 147/95-149/96 – Sir Dawda K. Jawara v The Gambia (2000) ACHPR; Communication
275/03 – Article 19 v Eritrea (2007) ACHPR
11
Jawara v The Gambia (n 11 above)
12
Article 19 v Eritrea, para 47
10
8
therefore holds that Article 56(5) of the African Charter is satisfied by the
Communication.
44. With regard to Article 56(6) of the African Charter, the Complainant submits that
a determination of reasonable time begins from the date of exhaustion of local
remedies. The Complainant argues further that the requirement has been satisfied
in the present Communication since there are no domestic remedies to exhaust
and the Communication was filed immediately after it became obvious that there
would be no facilities for the Victims to vote in referendum. The Commission
recalls that Article 56(6) provides that the Commission shall consider
Communications which 'are submitted within a reasonable period from the time
domestic remedies are exhausted or from the date the Commission is seized of the
matter'.
45. As the Commission has previously noted, generally, the requirement of timeliness
in Article 56(6) of the African Charter is dependent on the exhaustion of domestic
remedies envisaged in Article 56(5) of the African Charter.13 Where domestic
remedies are unavailable such that the Complainant is unable to exhaust those
remedies, Article 56(6) of the African Charter is satisfied so long as the
Complainant acts without delay. The Commission is satisfied that the
Communication has been submitted within a reasonable time. The Commission
therefore finds that Article 56(6) of the African Charter is satisfied.
46. In relation to Article 56(7) of the African Charter, the Complainant has stated that
the present claim has not been brought before or settled by any other
international investigation or dispute settlement mechanism. Article 56(7) of the
African Charter provides that the Commission will consider Communications
that ‘do not deal with cases which have been settled by those States involved in
accordance with the principles of the African Charter of the United Nations or the
African Charter of the Organisation of African Unity or the provisions of the
present African Charter’. The Commission also notes that the issues and claims in
this Communication have not been brought before any other international forum.
Accordingly, the Commission finds that Article 56(7) of the African Charter has
been satisfied.
Decision of the Commission on Admissibility
47. In view of the above, the African Commission on Human and Peoples’ Rights
declares this Communication Admissible in accordance with Article 56 of the
African Charter.
13
Communication 322/2006 - Tsikata v Ghana (2006) ACHPR, para 37
9
Consideration of the Merits
Complainant’s submissions on the Merits
Alleged violation of Articles 2, 3
48. Regarding Article 2 of the African Charter, the Complainant argues that the most
important aspect of this article is that it prohibits distinction of any kind, and that
the grounds listed under the article are not exhaustive, thereby also prohibiting
discrimination on other grounds. The Complainant avers that the provision
prohibits every kind of discrimination based on ‘’any status’’.
49. The Complainant contends that the placement of a residence qualification on who
can vote in referendums and elections is a form of discrimination against
Zimbabwean citizens living abroad, which includes the Victims. The Complainant
states that the discrimination is made 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. The
Complainant further contends that the denial of the Victims’ right to participate in
government is also upheld in the Electoral Act, which subjects the Victims to
conditions and restrictions not applicable to other citizens residing in Zimbabwe.
50. Regarding Article 3 of the African Charter, the Complainant contends that the
Respondent State’s non-implementation of the Provisional Measures issued by
the Commission constitute a violation of the Victims’ right to equal protection of
the law.
Alleged violation of Article 9 (2)
51. The Complainant submits that the right of the Victims to participate in the
government of their home country is an extension of their right to freely express
and disseminate their political opinions within the confines of the law. The
Complainant therefore concludes that by denying the Victims the opportunity to
vote in the referendum, the Respondent State has also violated their right to
freedom of expression.
Alleged violation of Article 13 (1)
52. The Complainant submits that the right of every citizen to participate freely in the
government of his or her country is given effect by the State through the
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enactment of laws that guarantee the right to vote, and that universal suffrage is
one of the foundational values of a constitutional order. The Complainant adds
that a necessary element of the right guaranteed under Article 13(1) is the right to
participate in elections, which are the only means by which a people can
democratically elect the government of their choice. The Complainant submits
that the right to vote is an inherent right of all citizens and its exercise is a crucial
part of democracy, such that its denial would itself imperil a democracy.
53. The Complainant contends that, in designing and establishing an electoral system,
States should consider it crucial to foster enfranchisement, recognise the right to
vote as an essential democratic value, and wherever possible, encourage the
participation of citizens in the electoral process. It adds that States are therefore
obliged to provide the machinery, mechanisms or processes to ensure that all
persons who want to vote and take reasonable steps in pursuit of that right, are
able to vote.
54. The Complainant agrees that States can indeed regulate the application of the
right to vote through their national legislation, but it submits that this legislation
should be compatible with the State’s obligations under the African Charter. The
Complainant submits that allowing national legislation to take precedence over
the African Charter would result in eroding the importance and impact of the
rights and freedoms guaranteed in the African Charter.
55. The Complainant further submits that the right guaranteed under Article 13(1) is
extended to ‘every citizen’ of a particular State and any curtailing of the right can
only be justified by reasons of legal incapacity. The Complainant notes that
Article 13(1) of the African Charter is similar in substance to Article 25 of the
International Covenant on Civil and Political Rights (ICCPR), which the United
Nations Human Rights Committee (the Human Rights Committee) has suggested
that any conditions applicable to the exercise of the right should be based on
objective and reasonable criteria established by law.
56. The Complainant suggests that in interpreting the African Charter, the only
legitimate reasons for restricting the rights and freedoms contained therein are
expressly stated in Article 27(2), which provides that rights ‘shall be exercised
with due regards to the rights of others, collective security, morality and common
interest, and that in cases of restrictions, they must ‘be based on legitimate public
interest and the inconveniencies caused by the restrictions should be strictly
proportional and absolutely necessary for the benefits to be realised’.
57. Finally, the Complainant contends that Section 58 of Zimbabwe’s Constitution (as
amended in 2007) , which places a residency requirement for prospective voters to
be registered in the voter’s roll and Section 72 of the Electoral Act of Zimbabwe
11
(2005) which makes provision for absentee voting through post available only to
Zimbabweans working in government service, violates the Victims’ rights
protected under Article 13(1) of the African Charter and other international
human rights instruments.
Respondent State’s submissions on the Merits
58. The Respondent State argues that Article 25 of the International Convention on
Civil and Political Rights (ICCPR), which provides for the right of every citizen to
participate in the political affairs of their country without any distinctions, only
state race, colour, language, religion, political or other opinion, national or social
origin, property or birth as prohibited grounds of discrimination. The Respondent
State also notes that residency does not form part of these discriminatory
distinctions nor is it included in the list of unlawful distinctions contained in
Article 2 of the African Charter, which the Respondent State is alleged to have
violated.
59. The Respondent State further submits that Article 7 of the Universal Declaration
of Human Rights (UDHR) establishes a general principle of equality, and avers
that Article 2 of the African Charter expands the meaning established in the
UDHR by providing some of the grounds for non-discrimination, such as race,
ethnic group, colour, sex, language, religion, political or any other opinion,
national and social origin, fortune, birth or other status.
60. The Respondent State avers that reasonable restrictions do not amount to
discrimination, noting that the 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.
61. The Respondent State also submits that the cost of organising external voting;
the fact that Zimbabweans abroad are not affected by the political decisions
taken in Zimbabwe; and that Zimbabweans abroad cannot cast a meaningful
vote due to their lack of knowledge of the political reality on ground, are
justifications for restricting external voting. The Respondent State adds that
external voting can also be restricted based on the strength of non-resident
citizens’ stake in the outcome of the elections.
62. The Respondent State contends that 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. In the case of
Zimbabwe, the Respondent State argues that non-resident Zimbabweans who
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are voluntary migrants are not denied the right to vote per se, as they can always
travel back to Zimbabwe to vote.
63. The Respondent State agrees with the Complainant that elections are at the heart
of democracy and the right to vote undeniably forms the basis and foundation of
any democratic government. The Respondent State however submits that voting
has been traditionally subject to citizenship and residency requirements, and that
therefore, only voters residing in the country and in the electoral district are
eligible to vote. It further submits that citizens living abroad retain the right to
vote but would need to travel to their relevant constituencies to cast their vote.
The State submits that during conflict situations, exceptions are made for people
living outside their country as displaced persons or refugees, and that this is a
different scenario from voluntary migrants, as the latter category are nonresidents by choice.
64. The Respondent State avers that the mere lack of legal provisions for absentee
voting is not disenfranchisement, as it only limits the right to vote but does not
entirely eliminate its exercise.
65. The Respondent State submits that citizens who reside abroad are not denied the
right to vote, and that what is required is registration in their constituencies, after
which they can vote. It avers 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 internationalize its elections. The
Respondent State concludes that Zimbabwe is a peaceful country and whoever
wants to participate in elections can always travel to the homeland and vote.
66. Thus, according to the Respondent State, the residence restrictions imposed by
the Zimbabwe Electoral Act are reasonable and do not violate Articles 2, 3 (1) and
(2), 9 and 13(1) of the African Charter.
The Commission’s analysis on the Merits
67. In the present Communication, the Commission is called to examine two
interrelated but distinct points of contention: firstly, on the placement of a
residency requirement as a precondition for citizens to exercise their right to vote,
and, secondly, on the provision of external voting only to a select category of
citizens, specifically, persons on duty in the service of government and their
spouses. In essence, the Commission will determine whether the restrictions
placed by the Respondent State on the right to vote on the basis of residency is an
acceptable limitation of the right, and whether allowing only a select category of
citizens to vote from abroad while others have to travel back home is either
discriminatory or amounts to unequal treatment. It must be kept in mind that the
subjects of this Communication are citizens of the Respondent State but were not
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residents of the Respondent State at the material time in which the facts of the
Communication took place.
Alleged violation of Article 13 (1)
68. Article 13 (1) of the African Charter provides that:
every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law.
69. The Commission recognizes that the right to participate in government forms an
integral and inextricable part of democracy, such that a State cannot be
considered a democracy if it does not guarantee the right of its citizens to
participate in government through free and fair elections. The importance of this
right is demonstrated by its inclusion in several of the continent’s human rights
instruments and standards, including the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol),
the African Charter on Democracy, Elections and Governance, the African Union
Declaration on the Principles Governing Democratic Elections in Africa and the
Constitutive Act of the African Union, which declares the promotion of
democratic principles and popular participation as an objective of the African
Union.
70. The right to directly participate in government refers to the right of citizens to
stand as candidates for elections, whereas the right to participate through freely
chosen representatives refers to the right of citizens to vote in elections, the latter
of which is the subject of this Communication. The Commission notes that
although the African Charter does not explicitly contain a right to vote in a
manner similar to other instruments such as the ICCPR14 and the American
Convention on Human Rights (American Convention)15, the right to vote is
International Covenant on Civil and Political Rights (1966) , Article 25:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country;
15
American Convention on Human Rights (1969) Article 23 Right to Participate in Government
1. Every citizen shall enjoy the following rights and opportunities:
a. to take part in the conduct of public affairs, directly or through freely chosen representatives;
b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal
suffrage and by secret ballot that guarantees the free expression of the will of the voters; and
c. to have access, under general conditions of equality, to the public service of his country.
14
14
naturally subsumed within Article 13 (1) of the African Charter as the most valid
method by which citizens are able to elect their representatives. The Commission
has in several decisions, affirmed this logical conclusion. 16 As the African
Charter does not distinguish between the types of elections covered by Article 13
(1), the right to participate in government must therefore be interpreted in the
widest possible sense so as to include all forms of elections, whether local or
national, parliamentarian or presidential, referenda or any other modes by which
individuals participate in elections.17
71. In spite of its fundamental importance to democracy, the African Charter
nevertheless recognizes the prerogative of States to legitimately restrict the right
to participate in government. This prerogative does not however give States carte
blanche, and as such, the Commission retains a duty to ensure the compliance of
such restrictions with the African Charter.
72. In Amnesty International v Zambia, the Commission stated that “claw-back
clauses must not be interpreted against the principles of the African Charter [and
that] recourse to these should not be used as a means of giving credence to
violations of the express provisions of the African Charter”.18 The Commission
also stated in Constitutional Rights Project, Civil Liberties Organisation and
Media Rights Agenda v Nigeria (Constitutional Rights Project case) that “to
permit national law to take precedence over international law would defeat the
purpose of codifying certain rights in international law and indeed, the whole
essence of treaty making’’.19 This position is underpinned by the customary
international law principle expressed in Article 27 of the Vienna Convention on
the Law of Treaties, which precludes States from invoking the provisions of their
domestic law to violate their treaty obligations. 20
73. These treaty obligations and standards are expressed in the jurisprudence of the
Commission and that of its international and regional counterparts. In Purohit
and Moore v Gambia, the Commission expressly adopted the interpretation of
2. The law may regulate the exercise of the rights and opportunities referred to in the preceding
paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity,
or sentencing by a competent court in criminal proceedings.
16
See Communication 97/93 – John K. Modise v Botswana (2000) ACHPR; Communication 211/98 - Legal
Resources Foundation v Zambia (2001) ACHPR; Communication 241/01 - Purohit and Moore v the Gambia
(2003) ACHPR
17
Human Rights Committee on Civil and Political Rights, General Comment No. 25: The right to
participate in public affairs, voting rights and the right of equal access to public service (Art. 25) (CCPR
General Comment) paras 6, 10
18
Communication 212/98 – Amnesty International v Zambia (1999) ACHPR, para 50
19
Communication 140/94-141/94-145/95 – Constitutional Rights Project, Civil Liberties Organisation and
Media Rights Agenda v Nigeria (1999) ACHPR, para 40
20
Vienna Convention on the Law of Treaties (1969) (VCLT) Article 27
15
the Human Rights Committee affirming its position that the right to vote may be
limited when there are “objective and reasonable” grounds.21 In determining
these elements, the Human Rights Committee has in the past taken into
consideration, firstly, whether there were any duly enacted laws that restricted
the right, and secondly, whether the justifications forwarded by the State
pursued a legitimate purpose and that the means adopted served that intended
purpose.22
74. The European Court on Human Rights (European Court) detailed in
Sitaropoulos and Giakoumopoulos v Greece that the right to vote may be
lawfully restricted only when the restrictions
“do not curtail the rights in question to such an extent as to impair their very
essence and deprive them of their effectiveness; that they meet the requirements
of lawfulness; that they are imposed in pursuit of a legitimate aim; and that the
means employed are not disproportionate”.23
75. In discussing the modalities for the legitimate restriction of the rights contained
in Article 13 (1) of the African Charter, the African Court on Human and
Peoples’ Rights (the African Court) stated in Mtikila v Tanzania that
“restrictions must be necessary in a democratic society [and] they must be
reasonably proportionate to the legitimate aim pursued”.24
The restriction must be provided by law
76. The Commission reproduces below the relevant aspects of the Zimbabwe’s
domestic law, in order to determine whether the restrictions can be said to have
been “in accordance with the provisions of the law” within the meaning of Article
13 (1) of the African Charter.
77. The Constitution of Zimbabwe (2007) in force at the material time of the dispute
states as follows
58 Elections
(1) A general election shall be held on such day or days within a period not
exceeding four months after the issue of a proclamation dissolving Parliament
Communication 241/01 - Purohit and Moore v the Gambia (2003) ACHPR para 76
See Communication 932/2000 - Marie-Hélène Gillot et al. v France (2002) Human Rights Committee;
Communication 2629/2015 - Eduardo Humberto Maldonado Iporre v Bolivia (2018) Human Rights Committee
23
Application no. 42202/07 - Case of Sitaropoulos and Giakoumopoulos v Greece (2012) ECHR, para 64
24
Application 011/2011 – Reverend Christopher R. Mtikila v the United Republic of Tanzania (2013) AFCHPR para
106
21
22
16
under section 63(7) or, as the case may be, the dissolution of Parliament under
section 63(4) as the President may, by proclamation in the Gazette, fix.
(2) ….. [Subsection repealed by section 20 of Act 31 of 1989 - Amendment No.
9]
(3) The qualifications and disqualifications for registration as a voter
and for voting at elections shall be as prescribed in Schedule 3 and,
subject thereto, by the Electoral Law
(4) An Act of Parliament shall make provision for the election of members
of Parliament, including elections for the purpose of filling casual vacancies.
[Subsection as amended by section 20 of Act 31 of 1989 - Amendment No. 9]
Schedule 3 Qualifications and disqualifications for voters
(1) Subject to the provisions of this paragraph and to such residence
qualifications as may be prescribed in the Electoral Law (emphasis added)
for inclusion on the electoral roll of a particular constituency, any person who
has attained the age of eighteen years and who—
(a) is a citizen of Zimbabwe; or
(b) ...
[Subparagraph (b) repealed by s. 20 of Act 5 of 2005 with effect from the 14th
September, 2005.]
shall be qualified for registration as a voter on the common roll.
78. The Electoral Act (2005) of Zimbabwe states
23 Residence qualifications of voters
(1) Subject to the Constitution and this Act, in order to have the requisite
residence qualifications to be registered as a voter in a particular constituency,
a claimant must be resident in that constituency at the date of his or
her claim:
Provided that if a claimant satisfies the voter registration officer that he or she
is or intends to be a candidate for election as a member of Parliament for a
particular constituency in which he or she is not resident, the claimant may be
registered as a voter in that constituency.
(2) For the purposes of subsection (1), a claimant shall be deemed to be residing
in a constituency while he or she is absent therefrom for a temporary purpose.
17
(3) A voter who is registered on the voters roll for a constituency, other than a
voter who has been registered in that constituency in terms of the proviso to
subsection (1), shall not be entitled to have his or her name retained on
such roll if, for a continuous period of twelve months, he or she has
ceased to reside in that constituency:
Provided that nothing in this subsection shall prevent his or her name from
being struck off such voters roll—
(a) on his or her being registered in another constituency; or
(b) if he or she becomes disqualified for registration as a voter.
(4) The Commission, any voter registration officer or any officer of the
Commission may demand from any voter who is registered on the voters roll
for a constituency proof of identity or proof of residence in that constituency or
both of the foregoing.
(5) For the purposes of subsection (4), the Commission may prescribe
documents that shall constitute proof of identity and additionally, or
alternatively, proof of residence:
Provided that the prescribing of such documents shall not preclude a person
from proving his or her identity or residence by other means.
24 Claims for registration
(1) Any person who wishes to be registered as a voter on the voters roll for any
constituency shall present himself or herself at the appropriate registration
office in order for the appropriate prescribed claim form to be completed on
his or her behalf by the voter registration officer:
Provided that a claimant who, in accordance with the proviso to subsection (1)
of section twenty-three, seeks registration in a constituency in which he or she
is not resident shall lodge a claim form with the Registrar-General of Voters.
(2) Where a claimant seeks registration in a constituency in which he or
she is not resident, he or she shall provide the Commission with an
address in that constituency where he or she shall be deemed to be
resident for the purposes of any delimitation of constituencies in terms
of the Constitution.
(3) If the voter registration officer is satisfied that a claimant who seeks
registration in a constituency in which he or she is resident is entitled to be
18
registered as a voter on the voters roll for that constituency, the voter
registration officer shall, pursuant to the claim form and subject to this Part,
enter the claimant’s name and the particulars relating to him or her on that
voters roll.
(4) If, on receipt of a claim form in which the claimant seeks
registration in a constituency in which he or she is not resident, the
Commission is satisfied that it is appropriate for the claimant to be
registered in that constituency, the Commission shall direct the
appropriate voter registration officer to enter the claimant’s name and
particulars relating to him or her on the voters roll for his or her
constituency.
(5) If a voter registration officer considers that a claimant should be registered
on the voters roll for some other constituency, the vro shall forward the claim to
the constituency registrar for that other constituency and shall advise the
claimant accordingly.
(6) The Commission, any voter registration officer or any officer of the
Commission may demand from any claimant proof of identity or proof
of residence in that constituency or both of the foregoing.
(7) Any applicant aggrieved by any decision of the Commission or voter
registration officer made under this section may lodge a complaint with the
Commission in terms of section one hundred and ninety.
72 Persons who may vote by post
Where an election is to be held in a constituency, a person who is registered as a voter on
the roll for that constituency shall be entitled to vote by post in terms of this Part if, on
all polling days in the election, he or she will be—
(a) on duty as a member of a disciplined force or as an electoral officer; or
(b) on duty in the service of the Government outside Zimbabwe; or
(c) outside Zimbabwe as the spouse of a person referred to in paragraph;
and so unable to vote at a polling station in the constituency.
79. In Konate v Burkina Faso, the African Court adopted the interpretation of the
Human Rights Committee that the law providing for the restriction must be
sufficiently clear.25 This is similar to the position of the European Court, which
25
Application No. 004/2013 - Lohé Issa Konaté v. Burkina Faso (2014) AFCHPR judgement, para 128
19
summarized its view on the meaning of “prescribed by law” in The Sunday
Times v the United Kingdom, stating that “the law must be adequately accessible:
the citizen must be able to have an indication that is adequate in the
circumstances of the legal rules applicable to a given case�� [and] … a norm
cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to
enable the citizen to regulate his conduct”.26
80. A combined reading of the above laws of Zimbabwe clearly limits eligible voters
to resident citizens, and permits external voting via post to only a certain category
of persons, as argued by the Complainant. In this regard, the Commission also
observes that the Respondent State does not argue to the contrary, and as such,
the parties are in agreement as to the meaning and effect of the relevant laws. The
Commission also observes that the Complainant has not argued that the Victims
were resident in Zimbabwe at the time of the referendum or that they belonged to
the category of persons eligible to vote via post. The Complainant has also not
challenged the procedural legality of the laws, specifically, whether any of the
laws in question were enacted in compliance with the duly prescribed processes
applicable in Zimbabwe.
81. The restrictions can therefore be said to have been provided by law as both the
Constitution and the Electoral Act prescribe an objective criteria for regulating the
exercise of voting rights, based firstly on residency and secondly on the nature of
work abroad. The Commission notes that although the Respondent State has
revised its Electoral Act27 and adopted a new Constitution28 since the initial
submission of this complaint, the relevant provisions remain the same in so far as
they retain a residency requirement and limit external voting to persons in
government service.
The restriction must be based on a legitimate interest or aim
82. The Commission now examines whether the restrictions pursued a legitimate
aim or interest, and can be considered as reasonable.
83. The Complainant acknowledges that the purpose of the expression “in
accordance with the provisions of the law “is intended to provide States with the
necessary scope to regulate the specific application of the right, but submits that
the restrictions are incompatible with the human rights obligation of the
Respondent State, as they are not based on any of the legitimate grounds
Application no. 6538/74 - Case of the Sunday Times v. The United Kingdom (1979) ECHR judgement, para
49
27
Electoral Amendment Act (2018)
28
Constitution of Zimbabwe (2013)
26
20
provided for under Article 27 (2) of the African Charter. The Complainant
concludes that the restrictions are therefore unreasonable.
84. The Respondent State on the other hand argues that residency is an acceptable
ground for restriction, and supports this assertion by contending that
Zimbabweans living abroad are less familiar with the domestic political situation
and may therefore be unable to cast “meaningful votes”. The Respondent State
furthermore submits that Zimbabweans living abroad are not affected by the
outcome of elections and should therefore not have the same voting rights as
residents. The Respondent State also claims that it does not have the financial
resources to internationalize its elections, hence the need to have all electors
present in Zimbabwe to cast their votes.
85. As correctly indicated by the Complainant, the Commission has held in several of
its decisions that the only legitimate interests for the restriction of rights that are
compatible with the African Charter are the conditions enumerated under Article
27 (2), which states that “the rights of the African Charter shall be exercised with
due regard to the rights of others, collective security, morality and common
interest”.29 The African Charter does not however define the scope of these
conditions, which allows for interpretation on a case by case basis, taking into
consideration the peculiarities of each circumstance at hand.
86. In relation to the claims of the Respondent State as to the cost of organizing
elections that include Zimbabwean citizens living abroad, the Commission notes
that this appears to be a blanket justification, and that the argument is not
accompanied by any supporting evidence. Without evidence detailing the
additional costs that such an election would entail, the Commission would have
to rely on conjecture to make the necessary analysis. Certainly, while the
Commission recognizes that a larger electorate would naturally entail more
expenses, without specific data and evidence, it is not possible for the
Commission to truly appreciate the difference in cost between elections that
include or exclude citizens that are resident abroad. For these reasons, the
Commission is of the view that this particular aim has not been sufficiently
justified.
87. The Respondent State provides two other justifications, which will be considered
jointly, as they both relate to what the Respondent State views as the primary
reason for excluding citizens living abroad, specifically, that they are less
informed about the issues at stake and that they are not affected by the outcome
of elections.
Communication 255/02 – Garreth Anver Prince v South Africa (2004) ACHPR, para 43; Communication
15/96: Social and Economic Rights Action Centre & Another v Nigeria, (2001) ACHPR, para 165
29
21
88. Historically, eligibility to vote has been closely linked to the relationship between
the electorate and the territory in which elections are to take place. Persons with
sufficiently strong links to the territory have been considered as eligible voters,
although the yardstick for measuring the strength of any supposed links has been
appreciated differently by various States. Citizenship and residency have
nevertheless often formed the basis for determining such a relationship.
89. In this instance, the Respondent State tests this relationship through citizenship
and residency, requiring that a person satisfy this two tier test in order to vote.
The Respondent State justifies this by submitting that non-resident citizens are
less informed and would thus not be able to cast a “meaningful vote”. In this
regard, the Commission acknowledges that traditionally, this indeed may have
been the case, and non-residents would generally have been assumed to be less
knowledgeable on the issues at stake in comparison to their resident counterparts.
The strength of this argument does not however retain its validity in our current
globalized environment. With increased migration, accessibility of transportation
that allows non-residents to travel to and fro more frequently, and the
development of modern technology that allows non-residents to keep abreast of
events in their home countries, non-residents today are no longer in the same
position as their counterparts from the not too distance past. Notably, in national
elections such as a referendum, as opposed to local elections with more
particularized issues at stake, it is even more difficult to espouse a general
principle that non-residents are uninformed to the extent that they will be unable
to cast meaningful votes, as claimed by the Respondent State. The Commission
further notes that in many countries across the continent, non-residents may in
fact serve as reliable and independent sources of information for residents,
through social media and television networks established abroad.
90. The Commission is therefore of the view that in this particular instance, limiting
the voting rights of the Victims on the assumption that non-residents are less
knowledgeable about the issues at stake is not justified.
91. The Respondent State also submits that non-residents are not affected by the
outcome of elections, and that consequently, they should not be granted the same
voting rights as residents. The Commission observes that this assertion is not
entirely accurate, as by the mere fact that they retain citizenship, 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. Residents would certainly have more at stake, as by being physically
within the territory of that country, their daily lives are affected in a more
comprehensive manner. The Commission notes that in principle, the outcome of
22
elections directly and primarily impacts the electors living in the territory of that
State.
92. The Complainant submits that the Victims are patriotic citizens that retain strong
ties to their home country, are keenly invested in its affairs and wish to return to
Zimbabwe in the future. This assertion has not been challenged by the
Respondent State, and the Commission sees no reason to doubt the position of the
Victims. This notwithstanding, it should be noted that laws are enacted to
establish general rules and cannot possibly take into consideration the situation of
every individual. 30 If this was to be expected, States would then have to enact
laws that allow them to test on a case-by-case basis the extent to which each
individual non-resident citizen has maintained sufficiently strong links to their
home country, which may lead to subjectivity and arbitrariness, also bearing in
mind the practical difficulties of implementing such an approach. A similar
sentiment was also expressed by the European Court in Shindler v UK, when the
court stated that an objective criteria such as residency, instead of a criteria that
measures an individual’s ties to their home country serves to “promote legal
certainty and to avoid the problems of arbitrariness and inconsistency inherent in
weighing interests on a case-by-case basis”.31
93. For these reasons, the Commission is of the view that the goal of limiting the
scope of elections to citizens who are primarily affected by the outcome of
elections, as determined by residency, is a legitimate aim and may be considered
to be in the common interest within the meaning of Article 27 (2) of the African
Charter.
The restriction must be necessary and proportional
94. The Commission now turns to examining the necessity of the restrictions placed
on the voting rights of non-residents, and whether the means adopted by the
Respondent State are proportional to the legitimate aim that it seeks to achieve.
The African Court summarized this aspect in Mtikila v Tanzania by holding
that “the legitimate interest must be proportionate with and absolutely necessary
to the advantages which are to be obtained”.32 The principle of necessity also
entails that States take the least intrusive or disruptive action to achieve their
aims.33 When there are multiple options available to achieve similar aims, States
are obligated to take the course of action least restrictive of the enjoyment of the
right in question. In Zimbabwe Lawyers for Human Rights & Associated
See Sitaropoulos and Giakoumopoulos v Greece (n 27 above)
Application no. 19840/09 – Case of Shindler v. the United Kingdom (2013) ACHPR judgment, para 116
32
Mtikila v Tanzania (n 28 above)
33
See Communication 242/2001: Interights, Institute for Human Rights and Development in Africa, and
Association Mauritanienne Des Droits De L'homme v. Mauritania (2004) ACHPR
30
31
23
Newspapers of Zimbabwe v Zimbabwe, the Commission posed a series of
questions which serve as guides in determining the necessity of a restriction,
specifically, “Are there sufficient reasons to justify the action? Is there a less
restrictive solution? Does the action destroy the essence of the rights guaranteed
by the African Charter?” 34
95. In this particular instance, the Complainant argues that the restrictions applied
by the Respondent State have gone beyond limiting the right to entirely taking
away the right itself, and thereby disenfranchising non-residents. The
Respondent State on the other hand contends that non-residents are still able to
vote if they travel back to Zimbabwe and register in their relevant constituencies.
The Respondent State submits that Zimbabwe’s electoral system is based on
constituencies and that there are no recognized constituencies outside of
Zimbabwe.
96. In a case before it on the very matter of a residency requirement on the right to
vote, the Constitutional Court of Zimbabwe observed the following regarding its
domestic processes:
…the starting point is an election due to be held in a given constituency. Next is
the person who is registered on the voters’ roll of that constituency. Then follows
the question of whether or not, on the day of voting, such voter is physically
present not only in Zimbabwe, but within the constituency in order to cast his
vote. Only if he is absent from the country will he be able to cast his vote by post.
However, such a person’s absence must be attributable to a call of duty in the
service of the State or being the spouse of such a person”. 35
97. The Commission observes that the Complainant has not challenged the assertion
of the Respondent State that the Victims would have been able to vote if they
had travelled back to their respective constituencies, instead, the Complainant
responds that the requirement to travel back is itself discriminatory, as the same
is not expected of persons in government service or their spouses. The
Commission notes that as per Section 23 (3) of the Electoral Act, where a person
has ceased to reside in a constituency for a continuous period of twelve (12)
months, he or she may no longer be retained in the voters roll. In such instances,
the person would have to re-register in order to vote, which was presumably the
situation of the Victims at the time of the referendum. The Commission therefore
Communication 284/03 – Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v
Republic of Zimbabwe (2009) ACHPR, para 176
35
Gabriel Shumba, Sibonile Mfumisi, Darlington Nyambiya v Minister of Justice, Legal and Parliamentary Affairs,
The Chairperson of the Zimbabwe Electoral Commission, Zimbabwe Electoral Commission, The Minister of Foreign
Affairs, The Minister of Finance and Economic Development, The Attorney General of Zimbabwe (2018)
Constitutional Court of Zimbabwe Judgement (No. CCZ 4/18, Case No. CCZ 3/18) page 18
34
24
takes it as non-contentious that either through the reading or application of the
relevant laws of Zimbabwe, the Victims could have indeed travelled back to
Zimbabwe, registered and voted in the referendum.
98. As the Commission has already decided on the legitimacy of the aims that
underlie the limitation of the right to vote to resident citizens, the outstanding
matter therefore is whether the means adopted by the Respondent State, that is
requiring non-residents to travel back to Zimbabwe, is a proportional to the aims.
99. The European Court captured this balancing act when it determined the
proportionality of a restriction on the right to participate in government, stating
in Schindler v UK that it needed to examine
the genuine interest of the applicant, as a British citizen, to participate in
parliamentary elections in his country of origin and the chosen legislative policy
of Respondent State to confine the parliamentary franchise to those citizens with
a close connection with the United Kingdom and who would therefore be most
directly affected by its laws.36
100. The Commission acknowledges that the requirement of having to travel back to
Zimbabwe would certainly have had implications for the Victims. Specifically, the
Commission has in mind the potential financial costs of travelling back to
Zimbabwe and the time that would have been taken away from the professional
or personal commitments of the Victims. The Commission is however of the view
that the difficulties presented in this situation do not go so far as to completely
bar the Victims from voting “such that the right itself becomes illusory”.37 The
Commission is mindful that in certain circumstances, the requirement of having
to travel back may indeed be so onerous as to prove prohibitive due to financial
or other personal factors. In this regard, the Commission however wishes to
reiterate its previous point that laws are intended to lay down general rules and
cannot possibly accommodate the circumstances of every individual, and that
attempting to do so may lead to arbitrariness.
101. In essence, the question is whether the general assumption should lean towards
the ability or the inability of non-residents to travel back to their home countries
to vote. The Commission is of the view that the general principle should assume
the former, and as such, the Commission observes that requiring that the Victims
should have travelled from South Africa to Zimbabwe in order to vote strikes an
acceptable balance, and is therefore a proportional limitation.
36
37
Shindler v UK (n 36 above) para 118
Constitutional Rights Project case (n 23 above)
25
102. The necessity of a limitation must finally be measured against what is considered
acceptable in an open and democratic society. In its examination of limitations on
freedom of expression, the European Court38 indicated broadmindedness,
pluralism and tolerance as characterizing a democratic society, which the
Commission endorsed in Kenneth Good v Republic of Botswana.39
103. In this regard, the Commission observes a broad range of diversity in the way
States organize their electoral systems in relation to the ability of non-residents to
vote from abroad. While some States require that all citizens be present in their
territory in order to vote40, others allow their citizens to vote from abroad. The
Commission further notes differences even in the practice of States that allow for
external voting, for example: all citizens living outside the State’s territory may be
allowed to vote externally;41 all citizens may vote externally but only in certain
types of elections, for example, Presidential or national;42 external voting may be
permissible only for a certain category of citizens, for example, persons in
government service;43 citizens living abroad may have the right to vote externally
if a specified minimum number of them register with diplomatic missions in the
foreign country;44 and external voting may be limited in time, for example, nonresidents may lose this right if they have resided outside their country of
citizenship for more than a specified period of time.45
104. In this particular instance, the Respondent State allows non-resident citizens to
vote from abroad but only if they are on duty in government service, or are able
to travel to Zimbabwe and vote from their relevant constituencies.
105. The Commission further observes that the general trend of State practice around
the globe is towards a more inclusive approach to the voting rights of nonresidents, allowing them the right to vote and facilitating external voting,
notwithstanding the above discussed differences in the way States actually put
this into practice.46 The Commission nevertheless notes that deviations or
alternatives to the general trend are still retained by States, and that these
deviations are not considered so out of sync as to be considered unacceptable. In
other words, global and regional practice has yet to cross a critical threshold,
such that any deviations would be considered unacceptable. The practice of
Application No. 5493/72 – Handyside v. the United Kingdom (1976) ECHR judgment, para 49
Communication 313/05 – Kenneth Good v Republic of Botswana (2010) ACHPR, para 197
40
See for example Burkina Faso, Democratic Republic of Congo (DRC), Ethiopia, Nigeria
41
See for example Botswana, Cape Verde, South Africa
42
See for example Angola, Benin
43
See for example Israel, Ireland, Singapore, Turkey, Zimbabwe
44
See for example Kenya, Senegal
45
See for example Germany, United Kingdom
46
The International IDEA Handbook (n 46 above), See also IDEA “Voting from abroad database”
available at https://www.idea.int/data-tools/data/voting-abroad
38
39
26
States around the globe demonstrates the varying degrees to which non-resident
citizens are included in elections, with countries fitting in at various points on
the spectrum of inclusiveness.
106. For these reasons, the Commission concludes that in this instance, the right to
participate in government 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. Certainly, this conclusion does not preclude States from according greater
legal protection than is legally expected of them. States may choose to pursue a
certain course of action because they view that action as a good policy objective,
even though the same is not considered a legal obligation. As such, there is a
distinction between matters considered mandatory by reason of a State’s legal
obligation and matters that remain within the power of States to decide.
Alleged violation of Article 9 (2)
107. The act of voting can also be viewed as a formal expression of the political
opinion of citizens, consistent with Article 9 (2) of the African Charter on the
right to freedom of expression. In essence, this is an example of the interrelated
and interdependent nature of rights, where the same act can be encompassed
within the scope of different rights. This relationship has been expressly affirmed
by the African Union Declaration on the Principles Governing Democratic
Elections in Africa, which recognized the importance of “the will of the people
expressed through free and fair elections as the basis of the authority of
government”.47
108. In international practice, the inter-linkage between the right to participate in
government through electoral processes and the right to freedom of expression
has also been recognized by various human rights bodies. In its General
Comment on Article 25 of the ICCPR, the Human Rights Committee states that
“freedom of expression, assembly and association are essential conditions for the
effective exercise of the right to vote and must be fully protected”.48 The
European Convention on Human Rights (European Convention) and the
American Convention also expressly draw this link by prescribing that elections
should be held in conditions that guarantee “the free expression of the opinion of
the people”49 in the case of the former and “free expression of the will of the
voters”50 in the latter.
African Union Declaration on the Principles Governing Democratic Elections in Africa, AHG/Decl.1
(XXXVIII), (2002)
48
CCPR General Comment (n 17 above) para 12
49
European Convention on Human Rights (195) Protocol to the Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention) Article 3
50
American Convention on Human Rights (1969) (American Convention) Article 23
47
27
109. The right to freedom of expression is not however an absolute right and similar
to the right to participate in government, this right may also be legitimately
subjected to limitations, when certain conditions are met. Article 9 (2) of the
African Charter provides that one may express his or her opinion “within the
law”. As earlier indicated, such expressions, which are commonly referred to as
“claw back” clauses, do not give States an unlimited prerogative to do as they
wish. Any actions taken to limit rights must be compatible with the African
Charter and other applicable human rights standards.
110. In Principle II of its Declaration of Principles on Freedom of Expression and
Access to Information in Africa (Declaration on Freedom of Expression) the
Commission affirmed that ‘any restrictions on freedom of expression shall be
provided by law, serve a legitimate interest and be necessary and in a democratic
society’.51 In this regard, the Commission observes that the aforementioned
elements are also the same set of criteria it used in determining whether the
restrictions placed by the Respondent State on the right to participate in
government were in conformity with the African Charter.
111. In the Constitutional Rights Project’s case, the Commission also made the
following observations in regard to limitations on the right to freedom of
expression, stating that ‘justification of limitations must be strictly proportionate
with and absolutely necessary for the advantages which follow. Most important,
a limitation may not erode a right such that the right itself becomes illusory’.52
112. In view of its earlier conclusions that the Respondent State’s limitations on the
right to participate in government through a residency requirement and on the
basis of work abroad is provided by law, in pursuit of a legitimate aim,
necessary and proportional, the Commission also mutatis mutandis determines
that the same limitations are a legitimate restriction on the right to freedom of
expression.
Alleged violation of Article 2
113. The importance of the principle of non-discrimination was clearly expressed by
the Commission in Purohit and Moore v The Gambia, when it affirmed nondiscrimination as ‘essential to the spirit of the African Charter…and must
The African Commission On Human And Peoples’ Rights “Declaration Of Principles On Freedom Of
Expression And Access To Information In Africa” (2019) The Declaration is an authoritative
interpretation of Article 9 of the African Charter, and was adopted by the Commission at its 65th Ordinary
Session, held from 21 October to 10 November 2019, replacing the Declaration of Principles on Freedom
of Expression in Africa (2002), adopted at its 32nd Ordinary Session. The relevant provisions have
however remained the same in so far as the issues raised in this Communication are concerned
52
Constitutional Rights Project case (n 23 above) para 42
51
28
therefore be respected in all circumstances in order for anyone to enjoy all the
rights provided for under the African Charter’.53 The Inter American Court has
similarly observed that the principles of non-discrimination and equality are ‘the
backbone of the universal and regional systems for the protection of human
rights’.54
114. Article 2 of the African Charter provides that
Every individual shall be entitled to the enjoyment of the rights and freedoms recognised
and guaranteed in the present African Charter without distinction of any kind such as race,
ethnic group, colour, sex, language, religion, political or any other opinion, national and
social origin, fortune, birth or any status
115. The Complainant argues that the restrictive provisions of the Electoral Act of
Zimbabwe which permits only citizens in government service and their spouses
to vote from abroad is discriminatory, as the law does not allow the same for
other non-resident Zimbabweans. The Complainant submits that this
discrimination disenfranchises an entire category of persons who would have
otherwise been eligible to vote.
116. The Respondent State’s contention, on the other hand, pivots on the following:
restrictions imposed by the Electoral Act are reasonable and do not amount to
disenfranchisement or discrimination; Article 2 of the African Charter does not
include residency in the list of prohibited grounds; and that the Victims are nonresidents by choice and not refugees, which would have provided a justification
for extending voting rights.
117. In describing what constitutes discrimination, the Commission ascribed the
following guidance in Kenneth Good v Botswana
…a violation of the principle of non-discrimination arises if: a) equal cases are treated in a
different manner; b) a difference in treatment does not have an objective and reasonable
justification; and c) if there is no proportionality between the aim sought and the means
employed.55
118. In the same vein, the European Court in D.H v Czech Republic established that
“discrimination means treating differently, without an objective and reasonable
justification, persons in relevantly similar positions”. 56
Purohit and Moore v the Gambia (n 25 above) para 49
IACHR. Report No. 50/16, Case 12.834, Merits, Undocumented Workers, United States of America, 30
November 2016, para. 72
55
Kenneth Good v Botswana (n 45 above) para 219
56
Application no. 57325/00 – Case of D.H. and Others v. the Czech Republic (2007) ECHR judgment, para 175
53
54
29
119. The Human Rights Committee has made the following observations:
“discrimination” as used in the Covenant should be understood to imply any
distinction, exclusion, restriction or preference which is based on any ground such
as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status, and which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise by all persons, on an
equal footing, of all rights and freedoms.57
120. When identifying whether a certain situation amounts to discrimination, the crux
of the matter is not so much the mere existence of differential treatment, although
this is certainly a starting point, but rather a difference in treatment between
objects, subjects or circumstances that are for all intents and purposes considered
to be in an analogous situation. This then begs the question as to the level of
similarity that needs to exist between an alleged victim of discrimination and
their comparator in order for a difference in treatment to amount to
discrimination. This must be decided on a case-by-case basis, and will
fundamentally depend on the purpose or aim of the measure which has led to the
alleged discrimination.
121. In this particular instance, the difference in treatment is twofold, firstly based on
residency, which accords different rights to resident and non-resident citizens,
and secondly, on the nature of work abroad, which accords favourable treatment
to persons in government service.
122. In addressing these two issues, the Commission first tackles the submission of
the Respondent State that residency does not form part of the prohibited grounds
for restriction under the African Charter. In this regard, it should be noted that
the list of prohibited grounds under Article 2 of the African Charter is not
exclusive, which is evidenced by the inclusion of the term “other status” in
addition to the expressly enumerated grounds. The purpose of Article 2 is to
regulate differential treatment based on any identifiable criteria, which in this
instance would include both residency and nature of work abroad. The
Commission further notes the arguments of the Respondent State that the Victims
are not refugees and so can voluntarily return to Zimbabwe to vote. In this regard,
the Commission is of the view that it need not prompt any discussions as to the
status of the Victims, except in relation to residency or nature of work abroad, as
the Complainants have not made any submissions claiming to be refugees.
123. In relation to the first tier of distinction, between resident and non-resident
citizens, the Commission has already examined this matter in its discussions on
57
Human Rights Committee, General Comment No.25, para
30
whether the placement of a residency requirement is a legitimate limitation of the
rights guaranteed under Article 9 (2) and Article 13 (1) of the African Charter. In
that regard, the Commission found that limiting voting rights to resident citizens
serves a legitimate purpose and is necessary to achieve that purpose, which is
limiting voting rights to residents, which are primarily affected by the outcome of
elections. The Commission found this as sufficient to justify a difference in
treatment as resident and non-residents are not in an analogous situation, as they
are impacted differently by the outcome of elections.
124. The Commission therefore now turns to discussing the second tier of distinction,
between ordinary non-resident citizens and persons on duty in government
service, who would typically, though not always, be referred to as diplomats. In
this instance, the same logic underlying the first tier of distinction would also
regulate this distinction. The Commission notes the general presumption earlier
reached that by no longer residing in their country of citizenship, ordinary nonresident citizens are not affected by the outcome of elections in a similar manner
to resident citizens, which justifies a difference in treatment. The Commission is
however of the view that the same cannot be held in relation to persons on duty
in government service. For this group of persons, there is a presumption that
their stay away from their country of citizenship is temporary, and that were it
not for their duties abroad, these persons would have been eligible to vote in
person. These persons are expected to return to their home country upon
completion of their duties, whereas the same may not be true in relation to
ordinary non-resident citizens.
125. The Commission concurs with the underlying principle espoused by Section 33
(3) of the Electoral Act of Zimbabwe that holds that the names of persons on
duty in government service will remain on the electoral roll even if they had
lived outside of Zimbabwe for more than the prescribed twelve (12) months
period, primarily because their stay outside of Zimbabwe is considered
temporary.58
58
33 Removal from voters roll on disqualification, death or absence
(2) Subject to subsection (5), if a voter registration officer is satisfied that a voter registered on a voters
roll—
(a) has been absent from his or her constituency for a period of twelve months or longer and is not a voter
who was registered with the approval of the voter registration officer in a constituency in which he or she
was not resident; or
(b) has left Zimbabwe with the intention of residing permanently outside Zimbabwe;
the voter registration officer shall remove such voter’s name therefrom.
(3) In determining the period of absence of any person for the purposes of subsection (2), no account shall
be taken of any period during which the person—
(a) resides outside his or her constituency while he or she is a Vice-President, Minister, Provincial
Governor or Deputy Minister; or
(b) is occupied in the discharge of his or her duties outside Zimbabwe while in the service of the State
31
126. For these reasons, the Commission is of the view that the actions of the
Respondent State do not subject the Victims to discriminatory treatment, as the
Victims are not in a similar position to either resident citizens or persons in
government service.
Alleged violation of Article 3
127. Article 3 of the African Charter states that
(1) Every individual shall be equal before the law.
(2) Every individual shall be entitled to equal protection of the law.
128. As earlier expressed, the right to non-discrimination and the right to equality
are fundamental and form the basis for the protection of all other rights in the
African Charter. These principles are so closely interlinked that it is hard to
envisage a situation in which a violation of one principle does not result in a
violation of the other.
129. The Human Rights Committee has however observed a distinction in the scope
of these principles, noting that the principle of equality enshrined in Article 26 of
the ICCPR does not merely replicate the prohibition of discrimination contained
in Article 2. In this regard, it held that the right to equality is not limited to rights
contained in the ICCPR, but has a wider scope that covers all matters regulated
by the laws of the respective State.59 In essence, even when a domestic law
regulates circumstances not covered or envisaged by the ICCPR, the right to
equality as understood in Article 3 of the ICCPR nevertheless applies to that
situation.
130. This identified difference in scope does not however materially manifest itself in
this particular instance as the relevant laws of the Respondent State, its
Constitution and Electoral Law, regulate rights also enshrined in the African
Charter. In this regard, the Complainant argues that the laws of Zimbabwe do
not equally protect all of its citizens, and that the failure of the Respondent State
to adhere to the Provisional Measures issued is a violation of the right to equality.
131. In regard to Provisional Measures, the Commission wishes to reiterate that
Provisional Measures are issued to prevent the possible occurrence of irreparable
harm, which may render any final decision on the merits of the Communication
ineffective. Provisional Measures are not to be interpreted as a decision or a
prejudgment on the Merits of a Communication, such that the non-adherence or
59
Human Rights Committee, CCPR General Comment No. 18: Non-discrimination (Art. 2) (1989) para 12
32
failure to implement the Provisional Measures would amount to a violation of
the right in question.
132. In Spilg and Mack v Botswana, 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 like circumstances’.60 In
light of this, the Commission notes its conclusions in relation to the right to nondiscrimination, 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.
133. In view of its conclusions regarding Article 2 of the African Charter, the
Commission similarly holds 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’.
Decision of the Commission on Merit
134. For the foregoing reasons, the Commission declares that there are no violations
of Articles 2, 3, 9, and 13 (1) of the African Charter.
Done in Banjul, The Gambia, at the 27th Extraordinary Session of the African
Commission held from 19 February to 4 March 2020
Communication 277/2003 - Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v.
Botswana (2011) ACHPR, para 160
60
33