By Calvin Makorokotera*
The right to vote is recognized by most world democracies as a fundamental right that enables citizens to influence decision-making within government.[1] Many democracies have put in place systems to ensure that this right is fully realized and enjoyed by its qualifying citizens but at varying degrees. Out of 119 electoral democracies surveyed by the Democracy Coalition Project,[2] 108 constitutionally guarantee the right to their citizens to vote. Despite its significance, many countries in the world only allow the enjoyment of this right by citizens living within its sovereign boundaries.
The diaspora is not allowed to enjoy this right courtesy of the existing laws or political tradition. In recent times, the right to vote for the diaspora has gained more recognition. In Zimbabwe, the current Constitution is deliberately ambiguous regarding the position of the diaspora vote. Section 67 (3) (a) of the Constitution provides for the right to vote to any citizen who is above eighteen years of age. This was in some cases interpreted by concerned citizens in diaspora to mean a right to vote even when they are non-resident at the time of voting[3].
Categories of Zimbabwean Diaspora
Persons living outside Zimbabwe have been pushed by a number of reasons which include immigration in search for education and job opportunities, political exile, or tourism. In general, three categories of potential absentee voters can be distinguished - forced-migrants; migrant laborers and expatriates; and non-citizens claiming a linkage through ethnic kinship or descent.
Forced migrants are persons outside their home community against their will. There are two distinct types: refugees and asylum seekers who flee across an international border because of a well-founded fear of persecution and are unable to avail themselves of the protection of their home state government.[4] Several human rights activists, political critics and alleged traitors of the movement like Jonathan Moyo, Savior Kasukuwere, Evan Mawarire and many more fled Zimbabwe and sought asylum in other countries. Such people have every right to participate in local affairs including the right to vote.
Migrant laborers and expatriates are persons outside their home states for reasons of economic remuneration, diplomatic/military service, educational opportunities, or personal preference. This group of diaspora constitutes the largest group. In general, they maintain their citizenship, intending to return to their home states, and often continue to pay taxes and/or send remittances home. They may be absent only temporarily, or for long periods of time. Most importantly, they retain citizenship in their home states.[5]
Non-citizens claiming a linkage through ethnic kinship or descent is a group which includes members of a diaspora or other individuals sharing a common conception of belonging to a national group based on perceptions of ethnic or cultural identity. These persons often maintain an abiding interest in the affairs of the state of origin, yet do not retain citizenship. Few countries extend voting rights to these non-citizens, non-resident persons.
The Role of the Diaspora in Zimbabwe’s Development
The role of the diaspora in the
development of their countries of origin is increasingly being recognized and
given strong support by various world organizations like the United Nations,
the African Union, the European Union, among many others.[6] Several
countries in the world have also taken measures to design policies and pass
legislations that create conducive environments for the diaspora to participate
effectively in economic, political and social affairs of the states of origin.[7] Some of the countries that
have taken a leading role in recognizing the role of their diaspora
social-economic-political include Estonia, France and the Netherlands.[8]
Although the exact number of Zimbabweans in the diaspora is not accurately known, it is estimated that over five million Zimbabweans are living abroad as employees, entrepreneurs, students etc. The Zimbabwean diaspora has been playing a vital role in the development of the country through money remittances and promotion of Zimbabwe’s economic development abroad.[9]
Besides direct money remittances, the diaspora contributes to the country’s several developmental several initiatives through Non-Governmental Organizations (NGOs), charitable organizations, investment groups, political parties, health centres, education, cultural clubs, virtual networks, etc. The diaspora has always played a vital role in the country’s development but their relationship with Zimbabwe has remained informal, borderline strained, and without clear structures for national solidarity. It is evident that the diaspora plays a remarkable role in development but to tap more, Zimbabwe needs to facilitate the participation of the Zimbabwean diaspora in the social, economic and political arena.
It has been a while since Zimbabweans in the diaspora and some local interest groups have been pushing that their contribution be recognized by the government. One way they want recognized is through enjoying the right to vote and representation. Their struggle has yielded no positive results.
The Right to Vote and the Constitution
The
right of citizens to participate in an electoral process freely and fairly is
recognized as a human right. Its theoretical foundation may be traced to the
social contract theory as postulated by earlier philosophers like Plato, Thomas
Hobbes and Jean-Jacques Rousseau. The social contract theory may be argued to
be classically Plato’s ideas but in modern philosophy it has been widely
attributed to Thomas Hobbes in his famous book, Leviathan.[10]
Hobbes argued that the lives of individuals in the state of nature were
"solitary, poor, nasty, brutish and short", a state in which
self-interest and the absence of rights and contracts reigned over society.
According to Hobbes, individuals in a state of nature were apolitical and asocial. Later Jean-Jacques Rousseau developed the theory of social contract into what is known today. Social contract theory according to Rousseau implies that the people should give up their liberties and sovereignty to a government or common authority in order to restore social order through the rule of law.[11] In a 1762 treatise he argues that a citizen cannot pursue his true interest by being an egoist but must instead subordinate himself to the law created by the citizenry acting as a collective. Each citizen puts his person and all his power in common under the supreme direction of the general will.[12] In democratic societies, a social contract is entered into by members of society by participating in free and fair elections, referenda or direct participation on societal issues.[13]
The right to vote can only be guaranteed when the whole election process is free and fair. This means that the following indices of free and fair election must be of impeccable standards: electoral law system, political boundary demarcation; voter registration, election management, conducting of civic education and voter information; quality of candidates and political parties, funding, electoral campaign, protection and respect for fundamental rights, political meetings, media access and coverage, balloting, monitoring and results and finally complaints and dispute resolution.[14]
At the international level the right to vote is recognized by various international instruments which Zimbabwe has ratified. The Universal Declaration of Human Rights captures the right to vote under article 21 which states inter alia; everyone has the right to take part in the government of his/her country, directly or through freely chosen representatives. This right is further emphasized under article 25 of the International Covenant on Civil and Political Rights (ICCPR) which states that every citizen has a right and opportunity to take part in public affairs, vote or be elected or have access to public services. This article is the key international guarantee of voting rights and free elections. In Africa, Article 13(1) of the African (Banjul) Charter on Human and Peoples’ Rights provides that every citizen shall have the right to participate freely in their government.
In the national arena, Zimbabwe adopted a new Constitution through a referendum in August 2013. The implementation of the new Constitution 2013 is now underway. The Constitution of Zimbabwe 2013 recognizes general rules of international law, any treaty or convention ratified by Zimbabwe as part of the applicable law in Zimbabwe.[15] This recognition means that the Conventions discussed above and their provisions on the right to vote have a force of law in Zimbabwe. This may therefore mean that Zimbabwe has no option than implement an election system which is in line with international standards to enable all its citizens, including the Diaspora to vote.
In more specific terms, section 67 of the Constitution of Zimbabwe 2013 provides for political rights which include the right to vote. Section 67(3) of the Constitution of Zimbabwe provides that every Zimbabwean citizen who is of over eighteen years has the right (a) to vote in all elections and referendums to which this constitution or any other law applies and to do so in secret. The use of the term citizens in qualifying persons eligible to enjoy the right to vote opens up the category to include the Zimbabwean diaspora. Any Zimbabwean citizen outside Zimbabwe should be able to enjoy this right.
Voting Systems for Diaspora
From the foregoing discussions, it is apparent that the categories of diaspora constitute people who are Zimbabwean citizens and therefore have a right to enjoy all rights like any citizen living in Zimbabwe. Further, the 2013 Constitution and the various international conventions recognize the rights of citizens to vote in their country affairs. On these two accounts, category of citizens and right to vote, it is justified that the diaspora should have a right to vote. However, the right to vote is not absolute and may be denied based on the several factors including the logistics of guaranteeing the right. Putting in place a system of voting for the diaspora may be a costly affair for developing countries like Zimbabwe and it may also dilute the sanctity of the vote.
However, several voting systems can be devised for diaspora. There are several ways in which electors can cast their vote from abroad. Some options are more costly than others, while some offer a more secure or faster voting channel. The four main voting are discussed below.
The voter must go to a specific place and cast his or her vote there in person. This can be a diplomatic mission or a polling place specially set up abroad. This is the procedure most widely used for casting an external vote. Southern Sudan can be an example.[16] This option is the most used by about 55 countries. The main advantages of this option are that it ensures the secrecy of the vote, it is cheap and that the voter’s choice is guaranteed to end up on the ballot paper.
Postal voting
The most common voting system is postal voting. The voter fills out the ballot paper at a place he or she chooses and the vote is then transmitted by ordinary post to the home country. Sometimes witnesses are required to confirm the identity of the voter and witness that he or she has filled in the ballot paper freely and without interference. The advantages of this option include that it can be practiced from most countries in the world, while the disadvantages may include high costs and slow postal services.
The proxy vote
A citizen living or staying abroad may be enabled to vote by choosing a proxy who casts the vote for the voter at a polling place in the home country, or abroad. Proxy voting is a procedure that allows one person to authorize someone else to vote on his behalf. It is most commonly used by lawmakers in the legislative process, in elections, and in corporate shareholder meetings.[17] This voting system does not guarantee the secrecy of the vote. Most countries that provide for this method provide it in combination with personal voting or postal voting. Though various jurisdictions in the United States have historically allowed proxy voting, it is currently prohibited under federal law.
Electronic voting
The voter may use the internet, personal digital assistants (PDAs), telephones or a mobile phone to cast his or her vote. This type of electronic voting is most often referred to as remote electronic voting, or e-voting and may become more common in the future. There is the security issue involved with electronic voting, and especially with remote e-voting, which pose some challenges that should be resolved before this new voting channel can be introduced.[18]
Conclusion
It is evident that the Zimbabwe Diaspora community plays a vital role in the country’s social, economic and political development. Many of the Zimbabwe Diaspora are Zimbabwean citizens staying in the foreign countries temporarily in search of opportunities with the intention of coming back to Zimbabwe. While outside the country, various political decisions are made back home that directly affects them. It is important therefore that they may be accorded the opportunity to participate in such political decision making.
Further, the various international instruments and Zimbabwe’s 2013 Constitution entitled Zimbabwean citizens the right to vote which they must be guaranteed. The only challenge in guaranteeing this right relates to the logistics of voting. However, four voting systems have been identified with varying advantages and disadvantages. These include persona voting, electronic voting, proxy voting and postal voting. Out of these four, the writer believes that the Government of Zimbabwe can make use of any that is convenient and less costly.
HAMUNGAZOSHAYEWO IMWECHETE ZVAYO (you can't say none of the above can be made use of).
*Calvin Makorokotera is currently a final year Law student at the Faculty of Law (LLBS), University of Zimbabwe in Harare. He is passionate with Constitutional Law matters and seeks to spread such knowledge through writing.
[1] Refer
to Korematsu v. United States, 323 U.S. 214, 216 (1944), Harper v.
Va. Bd. Of Elections, 383 U.S. 663 (1966), Romer v. Evans, 517 U.S.
620, 631 (1996) and Crawford v. Marion County Election Bd., 128 S. Ct.
1610 (2008)
[2] Democracy Coalition Project is a Non-Governmental Organization that conducts research and advocacy on democracy and human rights internationally.
[3] Gabriel Shumba and Others v
Minister of Justice Legal and Parliamentary Affairs and Others CCZ 4/18
[4] Convention Relating to the Status of Refugees, Art. 1(A )(2), 19 U.S.T. 6259, 6261, 189 U.N.T.S. 137, 152, 28 July 1951, entered into force 22 April 1954.
[5] J. Spiro, "Perfecting Political Diaspora," 2006. 81, New York University Law Review, Available at SSN, http://ssrn.com/abstract=876955.
[6] Business Wire reported that WorldRemit, the market-leading money transfer provider, revealed that
Zimbabwe was one of the top five recipient countries in Africa for remittances
in 2019, and continues to grow rapidly.
The
other African countries who received the most remittances in 2019 were Ghana,
Kenya, Uganda with Nigeria receiving the most. WorldRemit recorded a 49%
increase in transactions to Africa in 2019. The growth in digitisation and
mobile money across the continent has contributed to the substantial growth of
remittances.
Pardon Mujakachi, Head of Sub Saharan Africa said: “The Zimbabwean diaspora continues to drive increases in remittances to Zimbabwe. We know that Zimbabweans receiving money from abroad need guaranteed access to cash across the entire country, regardless of where they live. We recognise the transformative impact of remittances and remain committed to serving this region and the whole African continent, through further expanding our coverage”.
[7] China, India, and Israel seem to be the best-known examples of countries that received a major developmental push from their nationals located throughout the world.
[8] Ibid.
[9] Analysis from the World Bank
suggests that real GDP growth is projected to increase to 2.7% in Zimbabwe this
year. The Bank goes on to state that macroeconomic challenges could remain, in
the absence of external financial support.
[10] Hobbes,
Thomas (1651) Leviathan, ed. Edwin
Curley (Hackett, Indianapolis).
[11] Quentin Skinner, The Foundations of Modern Political Thought: Volume 2: The Age of the Reformation, Cambridge, 1978
[12] Jean-Jacques
Rousseau, Oeuvres complètes, ed. B.
Gagnebin and M. Raymond (Paris, 1959–95), III, 361; The Collected Writings of Rousseau, ed. C. Kelley and R. Masters
(Hanover, 1990-), IV, 139.
[13] R. Alan Dahl, I. Shapiro, J. A. Cheibub, 2003, The Democracy Sourcebook, MIT Press. Also, Black’s Law Dictionary (7th Ed. Edited by Bryan A. Garner).
[14] Guy S. Goodwin, (2006) Fair and Free
Elections: The Development of International Law and Practice, Inter-
Parliamentary Union.
[15] See Sections
326 and 327 of the Constitution
[16] Ochami David, 15th November
2011, Sudanese in Kenya Register for Vote, Standard Newspaper.
[17] Romano, Roberta, Does Confidential Proxy
Voting Matter? (July 15, 2002). Yale ICF Working Paper No. 02-29; Yale Law
& Economics Research Paper No. 265. Available at SSRN: http://ssrn.com/abstract=325640 or
doi:10.2139/ssrn.325640.
[18] Kohno T et al, 2003, Analysis of an
Electronic Voting System, Johns Hopkins University Information Security
Institute Technical Report TR-2003-19, July 23, 2003.
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