ZLHR Statement: The Path to Disenfranchisement: 2002 Presidential Elections

Published: 13/Mar/2002
Source: Zimbabwe Lawyers for Human Rights / Pambazuka News

The starting point is section 3(1) of Schedule 3 to the Constitution of Zimbabwe, which states that there are two categories of voters entitled to vote in a presidential election, namely:

  1. a) citizens
  2. b) persons who, since 31st December 1985, have been regarded by virtue of a written law as permanently resident in Zimbabwe.

24–26 June 2000:

Parliamentary Elections are held in Zimbabwe. MDC win 57 Parliamentary seats to ZANU-PF’s 62 seats. MDC take 77% of the urban vote, and ZANU-PF attribute their losses largely to the influence of white Zimbabwean citizens considered anti-government, as well as farmers and their workers, a majority of whom originate from neighbouring African countries.

6 July 2001:

The Citizenship Amendment Act No 12 of 2001 becomes operational in terms of General Notice 328 of 2001. The pertinent provision, section 3(c) repeals section 9(7) of the Citizenship of Zimbabwe Act [Chapter 4:01] and substitutes it with the following:

(7) A citizen of Zimbabwe of full age who-

(a) at the date of commencement of the Citizenship Amendment Act, 2001, is also a citizen of a foreign country; or

(b) at any time before that date, had renounced or purported to renounce his citizenship of a foreign country and has, despite such renunciation, retained his citizenship of that country;

shall cease to be a citizen of Zimbabwe six months after that date unless, before the expiry of that period, he has effectively renounced his foreign citizenship in accordance with the law of that foreign country and has made a declaration confirming such renunciation in the form and manner prescribed.

Leaving aside the arguable deviation from public international law principles relating to the illegality of one sovereign state imposing on another obligations to undertake a huge and expensive administrative process, other problems soon become apparent. The problem began in 1985 when British citizens in particular were asked to renounce their British citizenship in terms of Zimbabwean law, did so and had their passports sent back to them by the British authorities.

Although the amendment is given some publicity in the urban areas of Zimbabwe, the vast majority of affected citizens in the outlying areas remain uninformed until the deadline of 6 January 2002 has passed and their Zimbabwean citizenship has been lost by operation of law. It is calculated that the majority of persons who will be affected by the amendment are farm workers and rural dwellers who were born in the neighbouring countries or whose parents were born in the neighbouring countries. The affected persons who are outside Zimbabwe during the period of renunciation, for example university students and young Zimbabwean professionals in economic exile overseas and elsewhere in Africa also fail to meet the deadline through no fault of their own either because they remain uninformed about the process, or because they are unable to return to Zimbabwe to attend to the required administrative procedure within the stipulated time limit.

Suspicions are raised that this legislation will be utilised to disenfranchise this section of voters in the forthcoming presidential elections.

28 November 2001:

One of the reasons why the renunciation process becomes an administrative burden is due to the fact that the Registrar-General has informed the public that the renunciation process also has to be undertaken by those persons born in Zimbabwe, either or both of whose parents were born in a foreign country, but who have never applied for and/or been granted citizenship of any foreign country. An attempt to challenge the imposition of this obligation to renounce by such category of persons in terms of a class action fails before the Honourable Mr Justice Ndou in the High Court of Zimbabwe in the matter of Lesley Leventhe Petho –v- Minister of Home Affairs and The Registrar-General of Citizenship HH 221-2001.

29, 31 December 2001 and 8 January 2002:

The issue is raised again in the matter of Morgan Tsvangirai –v- Registrar-General and Others HH 29-02 where the Applicant argues that it is not necessary for those people who only have a claim to a foreign citizenship to renounce that foreign citizenship He goes further to say that such persons must number in the hundreds of thousands, if not millions, including all the persons over 18 years of age born in Zimbabwe, one or both of whose parents were born in Malawi, Mozambique, Zambia or South Africa (see page 11 thereof). The Registrar insists that he is entitled to require that these persons renounce their foreign citizenship and that they thereafter be summarily removed from the voters’ roll, proving the theory that this is an exercise meant to purge the voters’ roll of perceived MDC supporters. The Honourable Mr Justice Adam finds (at page 52) that the citizenship amendment legislation does not apply to a Zimbabwean citizen who has an entitlement or claim to a foreign citizenship.

29, 31 December 2001 and 8 January 2002:

An urgent chamber application is made in the High Court of Zimbabwe in the matter of Morgan Tsvangirai –v- Registrar-General and Others HH 29-02 seeking (amongst other relief) to extend the 6 January 2002 deadline. The urgent application is heard before the Honourable Mr Justice Adam and judgment is reserved.

10 January 2002:

A proclamation is issued by the Minister of Justice, Legal and Parliamentary Affairs to the effect that the voters’ roll has been closed and an election is declared for the 9th and 10th March 2002.

25 January 2002:

Ignoring the above proclamation, the first set of Notices of Objection issued in terms of section 25 of the Electoral Act [Chapter 2:01] are sent out by registered post to Zimbabwean citizens who purportedly renounced their Zimbabwean citizenship in terms of the Citizenship Amendment Act No 12 of 2001. Each notice alleges that the person affected has lost his/her Zimbabwean citizenship and therefore is no longer entitled to remain as a registered voter on the voters’ roll. The affected voter is given seven days to appeal to the Constituency Registrar. In a large majority of the cases the notices are received after the seven-day deadline and when appellants attempt to lodge their appeals they meet with resistance and refusal by the Constituency Registrar and the Registrar-General’s office. It is also clear that such notices have not been served upon the affected farm labourers and rural dwellers and therefore they are summarily struck off the voters’ roll without first having an opportunity to be heard.

In addition, there are two distinct groups of people who receive notices in error as they have either renounced their foreign citizenship and remained Zimbabwean citizens, or have never been Zimbabwean citizens and have always been entitled to vote as permanent residents since 31 December 1985, and a further disputed group who have failed to renounce a potential right to foreign citizenship.

The main arguments advanced on behalf of affected persons are as follows:

Preliminary:

  1. a) The Notices of Objection were issued by the District Registrar, who had no authority in terms of the Electoral Act [Chapter 2:01] and were therefore null and void;
  2. b) There had been no statutory appointment of Constituency Registrars for the various constituencies as required by section 16 of the Electoral Act. Since the Act gives the power to object to the registration of a voter to a constituency registrar only, it was argued that there was no legal persona that could object to these persons remaining on the roll;
  3. c) The Constituency Registrars did not lead evidence of any sort at the hearings of the objections, and therefore there were no grounds upon which a designated magistrate could make a determination in terms of the Act. Further, there was no allegation that the appellants were not entitled to vote as permanent residents since 1985.

Main Arguments:

  1. a) Section 3(3) of Schedule 3 to the Constitution, which stipulates that a person who has ceased to be a citizen of Zimbabwe cannot vote in an election for the constituency in which s/he is registered, only applies to parliamentary elections, as it refers to elections held in a constituency;
  2. b) Notices of objection were issued after the closure of the roll on 10 January 2002 in contravention of section 25(1) of the Electoral Act and are therefore null and void;
  3. c) Citizenship is a bundle of rights which includes permanent residence and therefore those who had lost their Zimbabwean citizenship either by renunciation or by operation of law were entitled to remain on the voters’ roll and vote in the elections in accordance with section 3(1)(b) of Schedule 3 to the Constitution.

On the same day, judgement in the matter of Morgan Tsvangirai – Registrar-General of Elections and 1 Other, and Morgan Tsvangirai –v- Registrar-General of Births and Deaths and 10 Others HH 22-2002 is handed down by the Honourable Mrs Justice Makarau. Inter alia, she orders that, “The Registrar-General shall restore to the voters’ roll of any constituency, all voters who, on or before January 18 2002 were on that roll or were eligible but were refused to be on that roll, who may have lost or renounced their citizenship of Zimbabwe, but who since 1985, have been regarded by a written law to be permanently resident in Zimbabwe.” The Registrar-General immediately appeals this judgement.

5 February 2002:

The matter of Diana Elizabeth Feltoe –v- The Constituency Registrar, Harare and 1 Other HH 30-2002 is brought before the Judge President of the High Court in Harare, the Honourable Mr Justice Garwe. The arguments outlined above are recorded.

14 February 2002:

A provisional order is granted stipulating that pending the determination of these issues, and irrespective of the outcome of the appeal before the magistrate, the constituency registrar is not to remove Feltoe’s name from the voters’ roll.

On the same day, and for the next two weeks, appellants begin to receive Notices of Set Down throughout the country at times giving them less than 24 hours’ notice to appear in the Magistrates’ Court. This huge administrative process is initiated less than a month before the polling dates. Hearings commence in the Magistrates’ Court throughout the country with most matters in Harare and Bulawayo being referred to a High Court judge in chambers in terms of section 28(1)(b) of the Electoral Act. The appellants’ cases are based inter alia on the arguments put forward above.

Other objections are withdrawn where they have been issued in error as above, and where the legal representatives of the constituency registrars have so consented. Some appeals are successfully argued before various magistrates throughout the country, while a number are unsuccessfully argued by self-actors who are struck off the roll. In all successful cases and cases which are withdrawn, written court orders are provided to the appellants to allow them to remain on the voters’ roll and vote in the presidential election.

15 February 2002:

The Supreme Court of Zimbabwe sits to consider the appeal of the judgement of Makarau J in the matter of Registrar-General of Elections and 7 Others –v- Morgan Tsvangirai SC 12/2002.

27 February 2002:

Judgement in Morgan Tsvangirai –v- Registrar-General op cit is handed down by the Honourable Mr Justice Adam a month and a half after it was argued as an urgent application, in favour of the Applicant, and extends the deadline for renunciation to 6 August 2002. The order also states that Zimbabwean citizens by birth do not have to renounce a potential foreign citizenship unless they actually hold the said foreign citizenship. This is in line with the Honourable Mrs Justice Makarau’s order, as above. The Registrar-General immediately appeals this judgment and Justice Adam’s order is suspended.

28 February 2002:

Judgement in SC12/2002 is handed down. The majority of the Supreme Court (Chidyausiku CJ, Ziyambi, Malaba and Cheda JJA) overturn Makarau J’s decision. They hold that citizens and permanent residents are separate and distinct categories. In terms of section 3(3) of Schedule 3 to the Constitution, those who have renounced their Zimbabwean citizenship in terms of the 2001 amendment are considered to have ceased to be Zimbabwean citizens and summarily lost their right to vote. Therefore they consider section 25 of the Electoral Act to be superfluous or non-applicable to their situation.

In a well-reasoned dissenting judgement by the Honourable Judge of Appeal Mr Justice Sandura, he finds that citizenship by either birth or registration includes permanent residency and therefore persons in either of these categories are entitled to remain on the voters’ roll and vote both as citizens and as permanent residents. Thus, when they have renounced their Zimbabwean citizenship they continue to be entitled to remain on the voters’ roll and to vote in their capacity as permanent residents since 31 December 1985 in terms of a written law.

29 February 2002:

The Electoral (Presidential Election)(No 2) Notice, Statutory Instrument 14B of 2002 is promulgated by the Registrar-General of Elections. This retrospectively changes the date of closure of the voters’ roll from 10 January 2002 to 27 January 2002 in an attempt to validate the notices of objection sent out after 10 January 2002.

1 March 2002:

The Electoral (Presidential Election)(No 3) Notice Statutory Instrument 41A of 2002 is promulgated by the Registrar-General of Elections. This once again alters the date of closure of the voters’ roll to 3 March 2002. This retrospectively validates all further Notices of Objection issued by the constituency registrars after 27 January 2002.

5 March 2002:

The Electoral Act (Modification) Notice Statutory Instrument 41D of 2002 is promulgated by the President in terms of his controversial powers in terms of section 158 of the Electoral Act. Inter alia, section 6 thereof gives the Registrar-General the power to draw up a list of all persons who have received objections to their remaining on the voters’ roll for having renounced their Zimbabwean citizenship or having lost same by operation of the law. Every person on this list is not to be allowed to vote in the presidential election unless s/he can show that s/he successfully appealed against the objection. Meanwhile hundreds of appeals are pending in the High Courts of Harare and Bulawayo, and some matters have not yet been heard in Magistrates’ Courts throughout the rest of the country.

7 March 2002:

The cases referred to the High Court in Harare in terms of section 28(1)(b) of the Electoral Act are all set down on extremely short notice for 10:00am before the Honourable Mr Justice Hlatshwayo. A similar procedure is followed in Bulawayo. An agreement is entered into between the judge and the legal representatives of all parties in Harare to draw up a stated case and hear all the matters together. All but one of the appellants concerned agree to abide by the judgement. This is done in an attempt to finalise the matters before the presidential election, which is two days away, and in the understanding that, if successful, the appellants will have proof to satisfy constituency registrars at the polling stations as per the requirements of SI 41D of 2002. The urgency and the necessity of achieving some form of certainty clear infringes the appellants’ constitutional right in terms of section 18(9) of the Constitution to a fair hearing within a reasonable time.

Judgement is handed down verbally at 5:30pm in this matter of Peter Jackson and 634 Others –v- Registrar-General HC 2434/02. Although the appellants argue that the Supreme Court judgement is obiter in this respect as the court had not been properly addressed on the objection procedure as laid out in terms of the Electoral Act, Hlatshwayo J is not persuaded and holds that he is bound by the majority decision of the Supreme Court. Whilst accepting a written concession from the Registrar-General that those Zimbabwe citizens with a potential right to foreign citizenship are not required to renounce this entitlement and therefore should not have been affected by this exercise, he rules against the remaining appellants on the basis that they automatically lost their entitlement to vote when they lost or renounced their Zimbabwean citizenship. He goes further to say that as the loss of the right to vote is automatic, there was no need to follow the procedures laid out in the Electoral Act, and on this ground disposes of the preliminary issues. This would apparently breach section 18 of the Constitution as the right to vote has been withdrawn without the affected person being given a chance to be heard.

9 March 2002:

In Bulawayo, a court order is issued entitling appellants to vote provided that they can prove citizenship. This order is nugatory, as the whole exercise had been targeted at people who have lost or renounced their citizenship, but strangely the appellants welcome it as a victory.

Elsewhere in the country, appeals remain pending in various Magistrates’ Courts.

On the same evening, being the eve of the presidential election, the matter of Morgan Tsvangirai –v- Registrar-General of Elections and Others, in which section 158 of the Electoral Act is challenged as giving unconstitutional powers to the President, and which seeks to invalidate SI 41D of 2002 on this ground, is heard by the Supreme Court. Minutes before argument, a further Extraordinary Gazette becomes available, containing Statutory Instrument 42B of 2002. This repeals section 6 of SI 41B of 2002 and substitutes it with a similar provision which retains the procedure pertaining to persons who have purportedly become disqualified to vote and the proof necessary to satisfy the constituency registrar that they are entitled to vote, but adds a provision that grants the constituency registrar the power to adjudicate on whether an individual whose appeal has not yet been determined should be allowed to vote. The application is argued at length and the court is requested to invalidate these two statutory instruments. Despite the obvious urgency and importance of the matter, the Chief Justice reserves judgement. To date (two days after polling ended – 13 March 2002) judgement has not been given.

On the days of polling, those persons who were in possession of court orders from the Magistrates’ Court and presented same at the polling stations were denied their right to vote by the presiding officers and the constituency registrars in contravention of SI 42B. Also, those who had been advised that the objections lodged against them had been withdrawn were found to be on the list of disqualified voters when they attended at the polls and were also denied their right to vote. A separate and parallel report exists in this regard with hard data and attempts to challenge such irregular disqualifications by way of urgent High Court chamber applications (which although successful also resulted in a further denial of the right to vote at the polling stations despite presentation of the High Court orders.

Published in Pambazuka News: http://pambazuka.org/en/category/rights/6599

 

Themes: Double Nationalité, Cartes d’identité et passeports, Perte et déchéance de la nationalité
Regions: Zimbabwe
Year: 2002