Case Summary and Outcome

The African Commission on Human and Peoples’ Rights held that a Zimbabwean law restricting the right to vote to citizens resident in the country did not violate the African Charter on Human and Peoples’ Rights. A group of Zimbabweans living in South Africa approached the Commission, arguing that their rights to freedom of expression and to participate in government were infringed by the law. The Commission accepted the Zimbabwean government’s argument that non-residents are not primarily affected by the outcome of the election, and held that as non-residents could return and vote in Zimbabwe, the limitation to the rights was justified.

Facts

On December 27, 2012, Zimbabwe Lawyers for Human Rights filed a complaint with the African Commission of Human and Peoples’ Rights on behalf of Zimbabweans living in South Africa, Gabriel Shumba, Kumbirai Tasuwa Muchemwa, Gilbert Chamunorwa, Diana Zimbudzana and Solomon Sairos Chikohwero. Shumba and the other individuals were denied the opportunity to vote in Zimbabwe’s Constitutional Referendum in March 2013 because they were out of the country and were unable to travel to Zimbabwe to vote.

Section 58 of the Constitution governs elections, and schedule 3 permits “residence qualifications” to be implemented by law. Section 23 of the Electoral Act addresses those “residence qualifications” and subsection 1 states that “[s]ubject 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” and subsection 3 states that “[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”. Section 72 of that law permits voting by post for citizens “on duty in the service of the Government outside Zimbabwe” and their spouses.

Shumba approached the African Commission on Human and Peoples’ Rights, seeking a declaration that Zimbabwe had violated the African Charter on Human and Peoples’ Rights (the Charter) and an order that it amend its Constitution and laws to permit Zimbabweans living abroad to vote. Shumba argued that the laws limiting the right to vote based on residence in Zimbabwe violated articles 2, 3, 9 and 13 of the African Charter.

Article 2 of the Charter states that “every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status” and article 3 states that “every individual shall be equal before the law” and “every individual shall be entitled to equal protection of the law”.

Article 9 protects the right to freedom of expression. It states: “(1) Every individual shall have the right to receive information. (2) Every individual shall have the right to express and disseminate his opinions within the law”.

Article 13 protects the right of everyone to participate freely in the government. It states: “(1) 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. (2) Every citizen shall have the right of equal access to the public service of his country. (3) Every individual shall have the right of access to public property and services in strict equality of all persons before the law”.

Decision Overview

The central issue for the Commission’s determination was whether the residency requirement for voting and the availability of voting abroad to only a select category of citizens was permissible under the Charter.

Shumba argued that the residency requirement in the Constitution and the law was a form of discrimination and that only allowing foreign-based officials to vote infringed the principle of equality before the law. He submitted that the denial of their ability to vote infringed the right to freedom of expression of Zimbabweans living abroad as the right “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” [para. 51]. Shumba argued that the rights to participate in one’s country’s government are given effect to by laws which guarantee the right to vote, and that by limiting the right to vote the State infringed article 13. He submitted that “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” [para. 52].

Zimbabwe argued that article 25 of the International Covenant on Civil and Political Rights does not include residency as one of its grounds of prohibited discrimination and so its laws discriminating against citizens living abroad did not constitute unlawful discrimination. It added that that article permits reasonable restrictions on the right, and so article 13 of the African Charter should be similarly interpreted. Zimbabwe submitted that the restriction on citizens living abroad could be justified by the cost of arranging voting for those citizens and that citizens not living in Zimbabwe are not aware of the political realities and are not affected by political decisions in Zimbabwe, and so the restriction was based on a legitimate ground. The State maintained that as citizens could travel back to Zimbabwe to vote they were not being denied the right to vote per se and that the right to vote abroad was not a traditional element of democracy.

The Commission emphasized the importance of the right to participate in government, and stated that the right “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” [para. 69]. It noted that the right is included in the African Charter and the Protocol to the Charter, 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. It also explained that although the right to participate in government could be restricted through legitimate laws enacted by States, the Commission had the authority to ensure those restrictions comply with the Charter.

The Commission referred to its case of Purohit and Moore v. Gambia and the European Court of Human Rights (ECtHR) case of Sitaropoulos and Giakoumopoulos v. Greece which had both held that the right to vote can only be legitimately restricted when that restriction is “objective and reasonable” and did not deprive the right of its “very essence” [para. 73-74].

In examining whether the restrictions were provided for by law, the Commission referred to the African Court of Human Rights case of Konate v. Burkina Faso and the ECtHR case of Sunday Times v. the United Kingdom in holding that as the laws were clear and had not been challenged on any procedural grounds the restrictions met this criteria.

The Commission stressed that only restrictions for the protection of the “rights of others, collective security, morality and common interest” would serve a legitimate interest but noted that interpreting what falls under those categories must be done on a case-by-case basis. The Commission rejected Zimbabwe’s argument that the cost of allowing citizens living abroad to vote justified its restriction on the basis that the State had not provided any evidence on the cost of that potential process. In respect of Zimbabwe’s argument that restricting foreign-based citizens from voting because they were “less informed about the issues at stake and that they are not affected by the outcome of elections” the Commission commented that voter eligibility has frequently been based on the relationship between the voter and the country and that citizenship and residency is used to determine this relationship. The Commission accepted that, in the past, living outside the country may cause citizens to be less informed about the issues facing their country of citizenship but stated that this is no longer true in “out current globalized environment” [para. 89]. Accordingly, the Commission held that this was not a legitimate justification for limiting the right to vote.

The Commission accepted that although citizens living abroad are affected to some extent by the outcome of the elections, the State was correct that “elections directly and primarily impacts the electors living in the territory of that State” [para. 91].  The Commission referred to the ECtHR case of Shindler v. UK which had held that “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’” [para. 92]. Accordingly, the Commission held that restricting voting rights to those who are primarily affected by the outcome of the elections is a legitimate aim.

The Commission assessed whether the restriction was necessary and proportional and noted that this turned on whether the restriction negated the right in its entirety – as Shumba argued – or merely required citizens to travel back to Zimbabwe to vote. The Commission stressed that Shumba had not disputed that they would have been able to vote if they had returned to Zimbabwe but had maintained that it was discriminatory that officials serving abroad did not have to do the same. The Commission characterized the issue as whether requiring non-residents to return to vote was a proportional manner through which to achieve the legitimate aim of the restriction. It referred to a similar case before the European Court of Human Rights, Schindler v. UK, and held that the requirement of travelling back to Zimbabwe to vote did not pose sufficient difficulties “such that the right itself becomes illusory” [para. 100]. It accepted that the financial costs may make it impossible for some individuals to vote, but stressed the need for laws to provide general rules. The Commission held that requiring citizens to travel to Zimbabwe to vote “strikes an acceptable balance, and is therefore a proportional limitation” [para. 101]. The Commission then assessed the limitation against what is “acceptable in an open and democratic society” and referred to the ECtHR case of Handyside v. the United Kingdom and the Commission’s case of Good v. Botswana and that there is no international standard for the eligibility of non-resident citizens to vote. As it found that the Zimbabwean approach was not “so out of sync as to be considered unacceptable” and that article 13 of the Charter did not extend to “guarantee non-residents the right to vote abroad” the Commission held that Zimbabwe had not violated article 13 [para. 105].

The Commission recognized that the “act of voting can also be viewed as a formal expression of the political opinion of citizens” and referred to the African Union Declaration on the Principles Governing Democratic Elections in Africa, which had recognized the importance of “the will of the people expressed through free and fair elections as the basis of the authority of government” [para. 107]. It also referred to the European Convention and General Comment on Article 25 of the ICCPR which had also linked the rights. However, the Commission accepted that the right to freedom of expression can be limited, and held that as the criteria are the same as for limitations to the right to participate in government its reasoning in that respect applied to the limitation to the right to freedom of expression.

The Commission also held that the laws did not discriminate and so there was no violation of articles 2 and 3 of the Charter.

Accordingly, the Commission held that the Zimbabwean Constitution and Electoral Law did not violate any provisions of the African Charter.