Big Saturday Read: diaspora vote: the law and politics
Campaigning for diaspora voter registration (pic: NewZimbabwe.com)
The issue of diaspora voting in Zimbabwe is both a legal and political issue. There are no official figures but it is widely acknowledged that millions of Zimbabweans have migrated and settled in foreign countries over the past two decades. The push factors have been political and economic. There are political refugees who fled violence and persecution but many are economic migrants who escaped poverty and unemployment while other simply found better opportunities outside Zimbabwe. While some have taken up foreign citizenship in their host countries, this has principally been for economic reasons since citizenship gives them a competitive edge in the labour market. Despite their new citizenship, many of these migrants retain strong connections and allegiance to Zimbabwe.
For many years, there has been a strong call for the diaspora to be allowed to participate in national elections. However, so far, this call has not yielded a positive result. The fight for the diaspora vote is, in essence, a struggle for inclusion in the political community of the home country. A political community in this context is a body that has the right and power to make legitimate political decisions and confer authority to govern. The fight for the diaspora vote follows other struggles in related areas, such as recognition of dual citizenship. In order to understand the law and politics of the diaspora vote, one has to examine the question of how this political community is defined within the political context.
Citizenship and the political community
Citizenship is the primary means by which a political community is defined and constituted. The very idea of citizenship is simultaneously an instrument of inclusion and exclusion. This is because any criteria for the classification of citizens also have the effect of excluding those who do not qualify, i.e. non-citizens. This is why as far back as Ancient Rome, citizenship has always been a highly valued asset. Today, acquiring citizenship in developed countries is highly prized but it is also cumbersome and expensive as one must meet several stringent criteria, including crude citizenship tests. One of the key rights attached to citizenship is the right to participate in the political community through the exercise of the right to vote.
Understanding the challenge of recognition of the diaspora vote requires an examination of struggles over the definition of citizenship. This is important because it helps to demonstrate that the current fight for the diaspora vote in Zimbabwe is not merely a legal issue but rather and more importantly, it is a political struggle and must primarily be framed as such. The principal point advanced in this BSR is that the diaspora vote is not going to be won in the courts of law but in the arena of politics. It is yet another reminder of a theme that has been raised in previous BSRs, namely that oft-times, the law follows politics, not the other way round. This BSR explains why the legal route is a cul-de-sac and also why more effort should be spent n political strategies because as with all struggles for expanding the franchise, the fight for the diaspora vote is primarily a political struggle.
Historically, even in ancient states, the right to vote was tied to citizenship. Then, as now, citizenship defined the political community and only those who qualified as citizens had the right to participate in the political affairs of the state. However, the definition of citizenship was also extremely limited, which resulted in a situation where the few ruled over the many. Hence in those societies, only men of property, who were the minority, had the right to make political decisions or to stand for political office. Women and slaves, who together constituted the majority, did not qualify as citizens for purposes of participating in political affairs.
Indeed, when the great philosophers of 17th and 18th century Europe were writing their seminal political treatises discussing the “rights of man”, they were not talking of all men, let alone all people in the general sense. The political community they were addressing was very narrow and restricted to white, upper-class men possessing a minimum threshold of property. Poor white men, women, slaves or other racial categories were not included in that definition of citizens. In the United Kingdom, women only got the right to vote in the last century, in 1918, and this year marks the centenary of that historic achievement. In the former African colonies, black people only got the universal right to vote when their countries got independence, starting with Ghana in 1957.
In Zimbabwe, the issue of citizenship has been at the centre of political struggles for many years. An issue that has epitomised these struggles is dual citizenship. The independence deal negotiated at Lancaster House ensured that dual citizenship was recognised, which protected the rights of the white minority population which was unsure about its fate under the new black government. However, the provisions also benefitted black migrants who had migrated from neighbouring countries during the colonial era to provide cheap labour to the Rhodesian economy. The new Patriotic Front reluctantly accepted it but just four years after independence, the new ZANU PF government amended the Citizenship Act to restrict dual citizenship. The effect of these changes was however limited but it signaled an intention to redefine and restrict the political community.
The ban on dual citizenship was strengthened shortly before the 2002 presidential elections with further amendments to citizenship legislation. These changes were intended to exclude white Zimbabweans from the political community but the net was so wide that it also included more than a million black Zimbabweans, mainly farm-workers who were categorised as “aliens” because they or their parents were migrants during the colonial era. Many, in fact, became stateless because they did not have any other citizenship. This was the crudest form of using citizenship laws to exclude people from the political community as they lost their right to vote in elections.
However, a sustained campaign by the diaspora, civil society and opposition parties produced a positive outcome in the 2013 Constitution which now recognises dual citizenship. The new constitution also restored citizenship rights to all those who had lost them before. Significantly, it also banned any measures that would render any person stateless, the ultimate form of exclusion.
Right to vote: a qualified right
Contrary to common belief, the right to vote is not absolute. Instead, it is a qualified right. In practice, this means the right to vote is restricted. This might surprise most people because political rhetoric has always presented the right to vote in a manner that suggests that it is absolute. To understand that it is qualified the first point is to recognise the reality that not every person can vote in elections. There are terms of eligibility to register as a voter and to vote in elections. In Zimbabwe's case, these terms of eligibility are outlined in the Fourth Schedule of the Constitution.
Under this schedule, a person is eligible to vote if he or she is a citizen who is at least 18 years old and satisfies the residential requirements imposed under the Electoral Law. In addition, certain persons are specifically disqualified from voting: these include persons detained on grounds of mental health; persons declared by a court to be incapable of managing their own affairs; and persons convicted of an offence under the Electoral Law and are disqualified by the court from voting for up to five years. Of all the qualifications under the Fourth Schedule, the most drastic in its effect is the residency requirement and it is to that point that we must now turn.
Exclusionary effect of the residency requirement
In Zimbabwe, citizens who, for whatever reason, are unable to provide proof of residence are excluded from registering to vote. This is because the Electoral Law does what is authorised by the Fourth Schedule to the Constitution, which is to specify the residential requirements. It is because of this exclusionary character of the residence requirements that the electoral authorities were forced in 2013 to relax the requirements to allow voters to submit an affidavit declaring their place of residence. This facility has enabled more people who would otherwise have been excluded by virtue of failing to produce proof of residence to register as voters.
When the strict letter of the law is applied, the demographic constituency that is most affected by the residency requirement is the diaspora. Technically, a Zimbabwean citizen who has settled in another country whether as a citizen or permanent resident of that country is no longer resident in Zimbabwe. They might, of course, argue that they are and make a declaration to that effect, but that is a matter of fact that could also be subject to contestation. The exclusion is emphasised by the fact that electoral authorities have the power to remove from the voters roll anyone who has not been resident in the constituency for a continuous period of 12 months. Those who return home annually might be able to argue that they have not been away from their constituency for 12 continuous months but these are exceptions to the general rule.
The courts and politicians have stated that no one in the diaspora is excluded from voting but that they must return home to register and vote. This suggests that there is no appetite to strictly apply the residency requirement in the case of the diaspora. In other words, the fact that they are permanently resident in foreign countries is no barrier to registration and voting. Yet surprisingly, this political rhetoric is not translated into law. If, as it appears, the government and courts are not serious about enforcing the residency requirement and are willing to overlook it for the diaspora, why should it remain in the statute books in the first place? It may be that the politicians are not sincere and only say the diaspora was welcome because they know few can afford to come and register and vote. The answer also lies in the design of Zimbabwe’s electoral system as explained below. This too must change if the diaspora vote is to be fully realised.
Design of electoral system
Zimbabwe runs a system of harmonised elections, that is, all three elections are held simultaneously: presidential, legislative and local elections. Furthermore, elections are held on a First Past the Post (FPTP) basis, which means the winner in each election takes all. In addition, parliamentary elections are both constituency and candidate-based, which means voters must choose a specific candidate in each constituency. For the 2018 elections, it is even more specific in that it is polling station-based, which means voters can only cast their vote at the polling station at which they are registered.
This system complicates and limits the options for diaspora participation in elections. It means the ballot papers must be specific to each constituency and ward if diaspora voters must participate in parliamentary and legislative elections. This means each polling station in the diaspora must not only have ballot papers for every constituency in the country but polling officers at those stations must sift through these ballot papers to ensure that each diaspora voter gets the correct ballot paper for his constituency and ward. The practical difficulty of this is all too apparent given the broad diversity of citizens in the diaspora. Worse, it could result in serious errors, confusion and an increase in the risk of voting fraud.
It would, of course, be easier where the same ballot is used countrywide, which is why a voting system based on proportional representation (PR) where voters choose parties rather than specific candidates is more compatible with diaspora voting. Likewise, in a presidential election, where the ballot paper is the same, there are no such complications and voters could vote from anywhere in the country or outside. Thus the answer may lie in changing the electoral system design and methods of voting.
Diaspora voting and the law
This section argues why, as already alluded to, the legal route is a cul-de-sac in the fight for the diaspora vote. The main obstacle is the judicial approach towards the right to vote and the diaspora vote which is quite conservative and restricted. The courts have refused to take a liberal and activist approach towards the diaspora vote and this is unlikely to change anytime soon. In two cases that have come before the highest court in the country, the decisions have gone against the diaspora vote. Significantly, the leading judgment in both cases was written by the current head of the judiciary, Chief Justice Malaba. Chances that the court will shift from its conservative and rigid approach towards the diaspora vote are extremely limited.
The first of these cases was the Madzingo matter, which was brought to court in 2005 by a group of Zimbabweans residing in the UK. It was just before the 2005 general election and they were demanding recognition of their right to vote and that the government should be ordered to provide voting facilities in the diaspora. Justice Malaba, as he was at the time, rejected the application, holding that the right to vote was not even recognised as a constitutional right. This was followed by a constitutional amendment in 2007 which specifically recognised the right to vote under section 23A of the old constitution.
The second was the Bukaibenyu case, which was brought before the Constitutional Court in 2013, just before the July 31 elections. Bukaibenyu argued that provisions of the Electoral Law which disqualified him from the voters’ roll on grounds of residential qualifications were unconstitutional. This was again rejected by Deputy Chief Justice Malaba, with all other judges concurring. He held that the constitution allowed the legislature to impose residency requirements and the fact that it had done so through the Electoral Law meant the requirements were lawful. Although the decision was based on interpretation of the pre-2013 constitution, the reasoning is unlikely to change because the provisions in dispute are, for practical purposes, the same under the new constitution and the Electoral Law. The tone of the judgment in the Bukaibenyu case was rigid, conservative and dismissive of the diaspora vote. The diaspora could always come back to Zimbabwe to vote, the court said, repeating sentiments made in the Madzingo case 8 years before.
Without prejudice to matters currently before the Constitutional Court challenging the exclusion of the diaspora vote, these two precedents stand in the way and since the court is largely unchanged, it is unlikely that there will be a different outcome. The court has refused to take a more liberal and dynamic approach to the diaspora vote. The court’s defence may be that it does not create the law and that its role is limited to interpreting the law as it is. Indeed, as long as the legislature is entitled to impose residential requirements, the court is, strictly speaking, well within its rights to recognise them as limitations upon diaspora voting. As already argued above, it does not help that the candidate and constituency-based electoral system complicates the exercise of the diaspora vote. Whether or not the diaspora must be included in the political community that makes political decisions from wherever they are is a political decision suitably answered by politicians, not by judges.
The point of this BSR is that the diaspora vote is, at the heart of it, a political matter and a solution to the problem will not be found in the courts of law but in politics. As already argued, the issue of inclusion or exclusion of the diaspora in national elections is a political question which must be resolved by politicians.
As we have seen, the question of defining a country’s political community has always been contested territory. Those who have the political advantage tend to be more inclined towards limiting the political community to those that think like them. Hence, from the beginning, the franchise has been limited and over the course of history, its expansion has been as a result of intense struggles with the excluded seeking inclusion. The suffragette movement had to fight hard to get the women included in the political community that decides who governs. In some colonies, the colonised had to wage armed struggle to be included in the political community.
In colonial Rhodesia, the franchise was limited on racial grounds. The 1961 Constitution was rejected by the black nationalists principally because it limited the franchise, excluded most blacks and delayed majority rule. The Lancaster House Constitution was hailed for introducing universal adult suffrage, but as we have already seen, in reality, the right to vote was qualified and therefore still exclusionary. This exclusionary aspect of the constitution has persisted because the residential qualification has remained in place since before independence. As long as the constitution allows parliament to impose residential qualifications, the electoral system will always have an exclusionary effect against citizens in the diaspora. The point here is that the diaspora vote has to be fought for as part of the new social struggle which means political strategies have to be deployed by those demanding it. The struggle has to include removal of the residence requirement and changes to the electoral system design to have a system that is more compatible with diaspora voting.
One ground that has been used to justify and defend the diaspora vote is economic. It is that the diaspora is a significant contributor to the country’s economic well-being. The government has acknowledged the important role of remittances from the diaspora in recent years, which have been credited for sustaining families and bringing in foreign currency for the country. In 2015, the Ministry of Finance reported that remittances had overtaken Foreign Direct Investment. Indeed, it has been argued that granting the diaspora vote would cement relations between Zimbabwe and the diaspora, encouraging more remittances and investments. The government itself has long promised a Diaspora Policy and the new Mnangagwa administration has been urging the diaspora to take investment opportunities at home.
On the face of it, the economic argument is attractive and persuasive, and it should motivate the government to be more inclusive of the diaspora. However, there are serious dangers that lurk in this economic justification which can be counter-productive. It carries chilling echoes of the parochial terms under which the right to participate in the political community was defined. These terms were based on economic grounds and were exclusionary. Under that system, only white men of landed property and education were eligible to vote, while the rest were excluded or extremely limited. The political community which participated in elections was based on economic grounds and was very narrow. It allowed the wealthy minority to rule over the poor majority. Social struggles over the centuries which opened up the franchise to the majority were waged against this exclusivist approach to elections based on economic rationale. Therefore, the right to vote doesn't have to be justified on economic grounds because that rationale has potential to exclude. If Zimbabweans in the diaspora must qualify for the franchise, it is purely because they are citizens who must be treated equally and with dignity, and not because their eligibility is measured in economic terms.
Nevertheless, it goes without saying that Zimbabwe stands to benefit economically from a closer and more inclusive relationship with its diaspora population. Having already recognised dual citizenship, an extension of the franchise seems to be a natural next step to take. Allowing the diaspora to take part in political decision-making provides an incentive for active participation in the affairs of their nation and gives them a sense of ownership and responsibility which is critical in this relationship. It is unlikely that the diaspora would participate if they did not feel part of the political community.
If Zimbabwe opened up the franchise to include diaspora voting, it would be joining a growing trend across the world. In an era of globalisation and greater movement of people, nations are not defined by territory only but by their peoples' wherever they may be. There has been a general trend worldwide of recognising the diaspora vote, although the form and nature of it vary from country to country, depending on their political and historical circumstances. Data from 10 years ago, showed that at least 115 countries allowed diaspora voting (Sundberg, 2007). 28 of these were from Africa, with the majority (41) in Europe. It is more likely that these figures have increased in the intervening years. In the SADC region, countries like South Africa and Mozambique allow diaspora voting.
There is no single form of diaspora participation in elections. Some allow participation in presidential elections only while others allow it in both presidential and legislative elections but not in local elections. Others allow voting in all elections. These variations recognise differences in the country’s electoral system design. As already noted, some system is amenable to diaspora voting in all elections, while other systems only permit specific methods of voting. In the case of Zimbabwe, which will be taking first steps in this area, diaspora voting could start with the presidential election, which has fewer complications since the ballot paper is the same throughout the country. Diaspora voting could in future and if necessary, be extended in legislative and local elections.
Voting being the ultimate expression of political choice, whether or not it is permitted comes down to political considerations. There are different motivations for introducing the diaspora vote, but they all eventually depend on political advantages perceived by those who introduce it. Some, especially in Europe and the Americas, were motivated by a desire to include military personnel who found themselves serving their countries in foreign lands during elections. In these countries, diaspora voting was introduced during the First and Second World Wars to allow soldiers who were in service elsewhere to vote. In other cases, political parties introduced diaspora voting if they believed that the diaspora would give them a political advantage over rivals. Conversely, if there is a belief within the governing party that the diaspora is likely to place them at a disadvantage, chances of introducing the diaspora vote will be limited.
This, it seems, has been the primary factor in the battle over the diaspora vote in Zimbabwe. Since most Zimbabweans left for the diaspora during the era of ZANU PF misrule, after 2000, there is a perception in that party that the diaspora is mainly opposition supporters or sympathisers. This attitude was quite apparent during the constitution-making process when ZANU PF resisted the recognition of dual citizenship. However, the notion that the majority of the diaspora are opposition supporters is largely based on conjecture. It might turn out to be false or a gross overestimation as views of the diaspora may have changed over time, since their departure from Zimbabwe. The government must not be paranoid about the diaspora vote.
When diaspora is the swing vote
Political considerations also arise where the diaspora has potential to become the swing vote in an election. This is where it is so influential that it can tip the election in one direction or another where the home country vote is almost evenly balanced. In such a case the diaspora not only becomes a key battleground but it also becomes the main determinant as to who wins the election. The concern that persons who do not live and carry the burden of the government directly should not determine the choice of government is not irrelevant because the notion of consent is at the heart of legitimacy of government. It is understandable why those who are directly affected would be concerned that their consent is diluted by those who live in other countries and probably participate in elections in their host countries, too.
This is clearly an important debate which Zimbabweans at home and in the diaspora must have. It would be desirable to have a broader political community that includes the diaspora. However, as argued in this article, this is a political, and not just a legal matter. It is a matter which judges shy away from because the definition of the political community is in the province of politics. In most cases around the world, the definition and expansion of the political community has come not from the courts but through political and social struggles. Where courts have directed politicians, such as in South Africa, these have been exceptions rather than the rule. The Zimbabwean courts have already discounted the South African precedent on the basis that their electoral system design which is based on proportional representation is different from ours.
By way of conclusion, here are the salient points of this BSR:
• The design of the current law, particularly the residence requirement, has an exclusionary effect towards the diaspora vote.
• The Zimbabwean courts are generally conservative in their approach to the right to vote and to the diaspora vote, in particular. Twice, in the last 15 years, the highest court in the country has rejected the diaspora vote. It is unlikely to rule any differently. The court’s approach is explained by the fact that judges do not want to be seen to be determining what they regard to be a political question, which must be decided clearly and unequivocally by the politicians. There is not going to be any respite from the courts on this matter.
• The electoral system design, which is a candidate-based and constituency-based system makes it difficult, cumbersome and expensive for the administration of the diaspora vote in respect of parliamentary and local elections.
• However, the residence requirement aside, there is nothing standing in the way of the diaspora vote in the presidential election where the ballot paper is the same countrywide. This can be implemented almost immediately if there is political will.
• Whether or not the diaspora vote is allowed boils down to political, not legal considerations. The law follows the politics and if there is political will and agreement to have the diaspora vote, the law can be changed accordingly to make it bold and unequivocally clear that the diaspora vote is permitted.
• The issue of the diaspora vote is a political question around the definition of the political community within a country. It follows a long line of constituencies that have previously been excluded from the franchise – black people, women, poor people, so-called aliens and others. The boundaries of the political community have traditionally been jealously guarded by those who hold power. The inclusion of previously excluded groups in the franchise around the world has never been out of the charitable instincts of the powerful but has been a result of intense social and often violent struggles. The diaspora vote will not be given on a silver platter. It’s a political struggle that requires an organised and determined diaspora and allies.
• The judges will have no choice but to recognise the diaspora vote, just as they did on dual citizenship, once the politicians make it clear and unequivocal that the diaspora is part of the political community that votes in national elections. At present, strictly speaking, the residence requirement is exclusionary.
• While economic justifications for the diaspora vote are attractive and often deployed to support it, they are not ideal because they are by nature exclusionary. The economic wherewithal of individuals was historically one of the markers of exclusion from the franchise. The right to vote should never be dependent upon one’s economic capacity because the implication is that those of no means will be excluded from the franchise. The struggles against colonialism were partly against this class-based discrimination. If the diaspora must be allowed to vote, it should simply be because they are citizens and the right to human dignity includes their right to be part of the political community regardless of their physical location.
• The Mnangagwa administration has a unique opportunity to demonstrate its progressive characteristics, if they exist, by reconfiguring and expanding the political community that participates in national elections through the inclusion of the diaspora. This is ultimately a political rather than a legal question and it demands political will and determination by those who have the power to determine the boundaries of the political community. Short of this, the best option for the diaspora is to return home to register and vote.
Will there be diaspora voting in the next election? Realistically, it's unlikely to happen. It's an important debate but it seems to have come very late in the day. There is already a lot of exclusion of potential voters within Zimbabwe, particularly the so-called aliens and youths. There should be a lot more focus to ensure that they are registered.