“PRISONERS’ RIGHT TO VOTE” A PRIVILEGE OR RIGHT? An Analysis of the Election Laws in Zimbabwe in Context of Prisoners’ Right to Vote

By Bright Maponga

The right to vote is a fundamental human right which is considered very crucial in as far as the existence of democracy is concerned.[1] This is what has been termed the universal suffrage, which is defined as the rights conferred on adult citizens of a country to vote.[2] The granting of universal suffrage has had a long winding history at a global level with a plethora of countries going through wars to attain it including the 1798 French Revolution which was anchored on that issue amongst other things. Most African countries including Zimbabwe had laws which restricted the right to vote to only property owners.[3] The universal suffrage was amongst other things, one of the fundamental things that the liberation war was fought for in Zimbabwe; one man one vote. Although the war was won in Zimbabwe to have one man one vote, the simmering issue to the boil relates to the right of prisoners to vote. It is common cause that prisoners in Zimbabwe, since the attainment of independence which ushered in one man one vote, have not exercised the right to vote. With Zimbabwe having attained a new constitutional dispensation in 2013, it begets a question as to whether the prisoners are disenfranchised. This article seeks to inquire into the question as to extent, if any, that the Zimbabwean laws allow for the prisoners to exercise their right to vote.

According to Abraham Lincoln, democracy refers to ‘the government of the people, by the people and for the people’. It was further defined as “a government (that) comes from the people; it is exercised by the people, and for the purpose of the people’s own interests.[4] John Locke in his formulation of the Social Contract Theory stated that, government exists only by the consent of the people in order to protect basic rights and promote the common good of society.[5] This Social Contract Theory is used as the basis for having democratic states in that a government must come from the people through the exercise of their right to vote in a free and fair election based on universal adult suffrage and equality of votes. Democracy, as opposed to dictatorship or tyranny, has been globally embraced as the only mechanism which ensures happiness of the citizens. It is imperative to note that, with all countries aspiring to be democratic and most of them having legal statements declaring them as such, the right to vote becomes of central value. The only way to ensure that the government comes from the people is by allowing the people to participate in free and fair elections, which should never be associated with rigging and all electoral irregularities; which is what has become synonymous with most election processes in Africa. Suffice to mention is that the universal suffrage serves the purpose in sync with the Social Contract Theory and democracy.

Zimbabwe attained the universal suffrage when it achieved its independence in 1980. Every person with the permitted age was able to vote based on one man one vote system. The system has not changed up to date. As already alluded to above, the focal point for the present purposes is the prisoners right to vote. Since independence, the prisoners have not voted in this country. Do our laws allow them to vote or not?

Election laws in Zimbabwe and the right to vote in particular is governed by the Constitution of Zimbabwe (Amendment No.20) Act 2013, the Electoral Act (Chapter 2:13) and the    Electoral Regulations. Section 67 of the Constitution grants political rights to every Zimbabwean citizen amongst them, the right to vote. In its exact terms, the section provides as follows;

Subject to this Constitution, every Zimbabwean citizen who is of or over eighteen years of age has the right to vote in all elections and referendums to which this Constitution or any other law applies, and to do so in secret.

These foregoing requisites for one to vote are also reiterated in paragraph 1 of the Fourth Schedule of the Constitution as follows;

Subject to subparagraph (2) and to paragraph 2, a person is qualified to be
registered as a voter on the voters roll of a constituency if he or she--

a. is of or over the age of eighteen years;

b. is a Zimbabwean citizen.

It appears clear from the above-quoted provisions that for one to be able to vote in this country, firstly he or she must be a citizen and secondly be of or over eighteen years of age. It is imperative to state that the said section which grants the political right to vote does so on two conditions specified above which are that of citizenship and age. Suffice to mention is that,

The Electoral Law may prescribe additional residential requirements to ensure
that voters are registered on the most appropriate voters roll, but any such
requirements must be consistent with this Constitution, in particular with
section 67.[6]

In the same vein, it is also important to proceed to deal with situations where one may be disqualified to be registered as a voter in terms of the Constitution. Paragraph 2 of the Fourth Schedule states that;

A person is disqualified to be registered as a voter;
a. while he or she is detained as mentally disordered or intellectually
handicapped under an Act of Parliament relating to mental health;
b. if he or she has been declared by order of a court to be incapable of
managing his or her affairs, for so long as the order remains in force; or
c. if he or she has been convicted of an offence under the Electoral Law and
declared by the High Court to be disqualified for registration as a voter or
from voting, for the period he has been declared disqualified, but the period
must not exceed five years.

It is clear that there are only three instances where the Constitution allows for disenfranchisement of a Zimbabwean citizen who is of or over eighteen years. These are

a) where one is detained as mentally disordered or intellectually handicapped;

b) where one has been declared a prodigal and

c) where one has been convicted for contravening the Electoral Law and the High Court disqualifies him or her.

Outside the above mentioned instances, there exists no other circumstances in the Constitution upon which one can be disqualified from registering to vote and vote. What is clear enough is that imprisonment is not even a ground upon which one can be disenfranchised.

An important point to stress is that the Constitution allows for the Electoral Law to make additional residential requirements but these must therefore be interpreted in a way which enhances enfranchisement and underlines the positive responsibilities of the Commission in facilitating registration and voting.[7]

It is imperative to note that, the Electoral Law contemplated by the Constitution is the Electoral Act and Electoral Regulations. The residential requirements are provided for in terms of terms of section 23 of the Electoral Act which states that;

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.

So what this section does is simply that it adds to the qualifications which one should satisfy before registration as a voter. In this case, on top of being a Zimbabwean citizen and of or over eighteen years, one has now to be a resident in a constituency he or she intends to be registered in. This requirement might be agreed to have been made pursuant to paragraph 3 of the Fourth Schedule of the Constitution and is submitted to be important for the purposes of proper administration of the election processes. What is of central importance is the conundrum whether this requirement or all of them disqualify the prisoners of their Constitutional right to vote? When prisoners are allowed to vote, is it a privilege or their constitutional right?

WHETHER THE LAW DISQUALIFIES THE PRISONERS FROM VOTING?

It is common cause that in terms of the Election Laws in Zimbabwe, for one to be registered to vote and to exercise his or her political rights in terms of section 67 of the Constitution, there are three requirements that should be satisfied in terms of the Constitution as read together with the Electoral Act. These requirements are as follows;

a)      One must be a Zimbabwean citizen;

b)      Of or over eighteen years of age and

c)      Be a resident in the constituency in which he or she intends to be registered in and vote.

Outside these, there are no further requirements that one has to fulfil before he or she can be held to qualify to register to vote. What immediately exercises the mind is whether by establishing these requirements, the legislature disenfranchises the prisoners?

Political rights, amongst them the right to vote, are a right which cannot be easily tempered with unless limited in terms of section 86 of the Constitution. No express provision excludes prisoners from registering to vote and vote in Zimbabwe. Democracy requires that the citizens of a country should determine who their leaders should be. The purpose of the Constitution in affording every Zimbabwean citizen who is of or over eighteen years of age political rights is to ensure that every eligible persons should participate in the democratic processes of his or her country including but not limited to election processes.

It is submitted that the law does not disenfranchise prisoners for to do so will be tantamount to discrimination and violation of their equality right in terms of section 56 of the Constitution. A cardinal principle of law is that all persons are equal before the law and have the right to equal protection and benefit of the law.[8] To say that one should not vote because he or she is a prisoner, will be to discriminate on the basis of class in that just because prisoners are in the class of restricted persons as opposed to free persons, they forfeit the right to vote. That discrimination can only be acceptable if it is established that it is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.[9] In casu, it is submitted that it is not even justifiable to deny the prisoners their fundamental right to vote. If they are denied to vote, with respect, that act is unacceptable, alien to a democratic state and unconstitutional. In any event, there is absolutely nothing in terms of the law which disenfranchise the prisoners or goes to the extent of allowing for that. Even if this submission may not be convincing, reference is made to the judgment by Gubbay CJ (as he then was, may his soul rest in peace) in the case of Woods v Minister of Justice, Legal and Parliamentary Affairs[10] at 705H wherein the learned judge held that;

“The view no longer holds firm in the jurisdiction of Zimbabwe, and in many others, that by reason of his crime a prisoner sheds all basic rights at the prison gate. Rather he retains all the rights of a free citizen save those withdrawn from him by law, expressly or by implication, or those inconsistent with the legitimate penological objectives of the corrections system.”

In the Canadian case of Sauve v Canada (Attorney General)[11], it was held that;

“Incarceration conditions should be made, as far as possible, compatible with the fullest possible exercise of the right to vote rather than advanced as a reason to deny that right altogether.”

It is submitted that the prisoners’ right to vote is neither expressly nor by implication taken away from prisoners. The universality of the franchise is important not only for nationhood and democracy, but the vote of each and every citizen is a badge of dignity and of personhood.[12]

POSITION IN SOUTH AFRICA AND ZAMBIA.

In our neighbouring South Africa, the issue was long settled in the case of August and Another vs Electoral Commission and Others[13] where the court held that,

“all prisoners, other than those expressly excluded by the 1998 Electoral Act, were entitled to register on the national common voters' roll. That they were not allowed to do so has the consequence that the Commission is now obliged to make arrangements for them to do so.”

In Zambia, in the case of Malembeka (Suing as Executive Director of Prisons Care and Counseling Association) v Attorney General and The Electoral Commission of Zambia which was decided shortly before the 2016 general elections in Zambia, the Constitutional Court of Zambia held that;

“…we declare that persons in lawful custody and those whose freedom of movement is restricted under a written law are entitled to vote in future elections”[14]

At page 23 of the Malembeka judgment (supra), the learned judge held that, a clear interpretation of the Article[15] reveals that it clearly stipulates that a citizen who is eighteen years and above is entitled first, to be registered as a voter and secondly, to vote in an election. The court therefore declared sections 9 (1) and 47 of the Electoral Process Act, No. 35 of 2016 which disqualified persons in lawful custody from registering to vote and vote in Zambia unconstitutional for violating Article 46 of the Zambian Constitution.

In a nutshell, it is submitted that there is no provision in our law either by express mention or implication which disenfranchised prisoners. The right to vote is a fundamental human right which should not be easily tempered with for the attainment of democracy in this Zimbabwe. The extent and content of a prisoner’s rights are to be determined by reference not only to the relevant legislation but also by reference to his inviolable common law rights.[16] Imprisonment should not be viewed as a ground for denigrating Zimbabwean citizens of their right to vote. By allowing the prisoners to vote, it is not a privilege, rather it is a fulfillment of their constitutional rights to vote and to be treated equally before the law.

WAY FORWARD

There are a variety of ways in which suffrage of prisoners can be achieved practically in Zimbabwe. Prisons can be set up as polling stations or special votes could be provided to prisoners. The Zimbabwe Electoral Commission should have diminutive difficulty in ensuring that all prisoners who are Zimbabwean citizens and are of or over eighteen years of age are registered and given the opportunity to vote, and that the objective of achieving a certainly managed poll on election-day is accomplished.

 

ABOUT THE AUTHOR

Bright Maponga is a legal practitioner and a writer on contemporary issues.

0786256538, 0713238158

brytmaponga@gmail.com      

 

© The NovemberMan

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[1] See Haig v Canada 105 DLR (4^th ) 577 (SCC)613 wherein Cory J held that, “..all forms of democratic government are founded upon the right to vote. Without that right, democracy cannot exist.”

[2] ACJR ACTSHEET – The right of prisoners to vote in Africa-pdf-updated July 2020.

[3] This was during the colonial era and the Smith Regime.

[4]https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiRkPuX65X2AhUDQkEAHX1gCGsQFnoECDcQAQ&url=http%3A%2F%2Flibrary.fes.de%2Fpdf-files%2Fbueros%2Fmadagaskar%2F05860.pdf&usg=AOvVaw1pBmNCcoudl0U5TD7HtMuc

[5] M. Nation, Locke’s Social Contract: Is It Legitimate? https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwj44Mq27ZX2AhVQgFwKHXFdD-MQFnoECAUQAw&url=https%3A%2F%2Fuca.edu%2Fcahss%2Ffiles%2F2020%2F07%2FNation-CLA-2019.pdf&usg=AOvVaw3w9646xL6iIfvwYbyp5GbW

 

[6] Paragraph 3 of the Fourth Schedule.

[7] See August and Another vs Electoral Commission and Others CCT 8/99.

[8] See section 56 (1) of the Constitution of Zimbabwe (Amendment No.20) Act 2013.

[9] Ibid.

[10] 1995 (1) SA 703 (ZSC).

[11] 7 OR (3^rd) 481 (CAO) per Arbour JA at 488.

[12] The right of prisoners to vote in Africa https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiFybbRyrv2AhVhnVwKHc-_CsYQFnoECAsQAQ&url=https%3A%2F%2Facjr.org.za%2Fresource-centre%2Ffact-sheet-17-prisoners-vote.pdf&usg=AOvVaw2G15bSg81JmNKkJUfLCL25 pdf.

[13] CCT 8/99.

[14] 2016/CC/0013

[15] Article 46 of the Zambian Constitution which states that, “A citizen who has attained the age of eighteen years is entitled to be registered as a voter and vote in an election by secret ballot.”

[16] Minister of Justice v Hofmeyr (1993) SA 13.