HARARE – Legal experts have expressed mixed reactions over the Constitutional Court (Con-Court)’s ruling in which it threw out an application filed by those in the Diaspora who had sought to exercise their right to vote in the forthcoming elections slated for July 30.
While, some lawyers believe the ruling was off the mark, respected law professor Lovemore Madhuku, said the Con-Court was spot on, adding that judgment was in line with the Constitution. The ruling comes after an application by Gabriel Shumba, Sibonile Mfumisi and Darlington Nyambiya sought to vote while based in the countries they are staying.
Shumba, a human rights lawyer, and Mfumisi are resident in South Africa, while Nyambiya is living and working in the United Kingdom. But the Con-Court, in a judgment read out by deputy chief justice Elizabeth Gwaunza, dismissed the trio’s petition on Wednesday, after ruling that the application cannot succeed.
According to Madhuku, there is no provision in the Constitution, which allows those in the Diaspora to vote based in the countries they are staying.
“The problem is not with the court, it’s the Constitution. People must not expect the court to rule in favour of a provision that is not provided for in terms of the Constitution. The court was right, it was very correct. Those people who argue to the contrary were playing a political game,” Madhuku said.
He said the basis for one to claim a Diaspora vote must be specifically stated in the Constitution for it to be accorded.
“The people were misled by the MDC, the Constitution must be clear that a person outside the country must be allowed to vote,” Madhuku said.
Madhuku said he remembers going to South Africa during a symposium organised by Shumba and advised them that the Constitution did not provide for those in the Diaspora to vote.
“They took turns to boo me, and gave Douglas Mwonzora and Paul Mangwana a hero’s welcome when I told them the Constitution did not provide the right to vote to those in the Diaspora. I told them that these people are cheating you by telling you that there is a provision that says you can vote based in the Diaspora,” said Madhuku.
“If anyone wants a Diaspora vote, they must ask the MDC, because they are the ones who were in the unity government when the Constitution was made …” Madhuku said, adding that from a jurisprudential point of view, the court was correct in its ruling.
Other lawyers who spoke on condition of anonymity for professional reasons castigated the Con-Court ruling, but said they were anxiously waiting for the full judgment to get a deeper understanding on the issues that motivated the court’s conclusion.
“We will read the reasons, so we can get a deeper understanding and see what can be done to ensure the Diaspora vote is available in the future,” a Harare lawyer told the Daily News.
Another lawyer, who thought the ruling was not proper, said, “I read the court application and heads of argument which were flawless and unassailable”.
Other countries in the world have a provision that allows their citizens to vote while outside the country