COMMENTARY AND AN ANALYSIS OF THE CASE ON THE RIGHT OF PRISONERS TO VOTE IN ZIMBABWE SUMMARY OF THE CASE

MUSARURWA & OTHERS v MINISTER OF JUSTCE, LEGAL AND PARLIAMENTARY AFFAIRS & OTHERS HHC 751

SUMMARY OF THE CASE

1. The proceedings in this matter were initiated in 2017 when the plaintiffs, being long-term prisoners, approached the High Court seeking an order declaring the entitlement of themselves and all other prisoners in Zimbabwe to be registered as voters and to participate in elections. The plaintiffs called upon the defendants, namely, the Minister of Justice and the Zimbabwe Electoral Commission [ZEC], to undertake all requisite measures to facilitate the registration and voting of prisoners.

2. The case was originally argued shortly before the 2018 election; however, the presiding judge became incapacitated and subsequently passed away before delivering a verdict. Consequently, the proceedings recommenced before another judge, Mr. Justice Mutevedzi, who rendered his judgment on October 26, 2022.

3. In the interim, the plaintiffs had been released from incarceration, with one beneficiary of a presidential amnesty and others having their convictions overturned by the Supreme Court. Consequently, they were no longer directly affected by the outcome of the case, leading the judge to characterize the matter as “moot.” Nonetheless, the judge proceeded to address the issues raised by the plaintiffs.

4. The key points addressed by the judge included:
o The acknowledgment that Section 67 of the Constitution of Zimbabwe confers the right to vote in elections upon prisoners, among other adult citizens. The Constitution only excludes from this right individuals detained due to mental disorders, those declared incapable of managing their affairs by a court, and those convicted of specific electoral offenses.

o However, prior to exercising their voting rights, citizens must be registered on a voters’ roll, subject to the criteria set forth in Section 23 of the Electoral Act and authorized by the Fourth Schedule to the Constitution. These criteria stipulate that applicants must be residents of the concerned constituency at the time of registration and, if they cease to reside there for over eighteen months, they are no longer eligible for registration.

5. The judge relied on the precedent established in the case of Shumba & Others v Minister of Justice & Others CCZ 4/18, wherein the Constitutional Court determined that members of the Zimbabwean Diaspora residing outside Zimbabwe were ineligible to vote as they were not residents of Zimbabwe and thus could not be registered on any voters’ roll. The judge concluded that the Constitutional Court’s reasoning applied equally to prisoners, compelling him to hold that prisoners were not entitled to vote and to dismiss the application.

ANALYSIS OF THE CASE
6. Respectfully, there exist at least three bases upon which the judgment may be subject to scrutiny and shall be addressed sequentially.

Mootness
7. The judge contended that the case had become moot due to the plaintiffs’ release from incarceration. However, even though the plaintiffs did not expressly invoke section 85(1)(d) of the Constitution pertaining to public interest cases, their actions clearly indicated their intention to assert the rights of all prisoners, not solely for their personal benefit. Given the plaintiffs’ assertion of a public interest case, dismissing it as moot purely for lack of a specific citation appears overly formalistic.

The Constitution
8. While the judge and all parties to the case concurred that the Constitution granted voting rights to all citizens, including prisoners, a notable omission was the failure to acknowledge Section 155(2)(a), which mandates the State to take appropriate measures, including legislative ones, to ensure the registration of all qualified citizens as voters. The judge did not reference this section, despite the plaintiffs’ reference to it and their request for the court to order the Minister of Justice and ZEC to facilitate voter registration for all prisoners.

The Constitutional Court Case on the Diaspora Vote
9. The precedent set in the case of Shumba & Others v Minister of Justice & Others, while relevant to Diasporans residing outside Zimbabwe, is not applicable to prisoners confined within Zimbabwe. Prisoners, though involuntarily residing in prison facilities, should still be eligible for registration in the constituencies where their prisons are located during their incarceration. The absence of voluntary residence is inconsequential in this context. Consequently, the Constitutional Court’s ruling does not serve as authority for the denial of prisoners’ voting rights, and the judge’s reliance on it was unwarranted.

COMMENTARY AND RECOMMENDATIONS
10. Citizens who are prisoners possess a constitutional right to vote. Pursuant to Section 155(2)(a) and (b) of the Constitution, the Government is duty-bound to enact measures, including legislative ones, to afford all adult citizen prisoners the opportunity and facilities to:

• Transfer their voter registration to the constituencies where their prisons are situated, and
• Exercise their voting rights in any election.
11. While allowing prisoners to transfer their registration presents minimal challenges, enabling them to vote may require additional considerations due to the requirement, under the Electoral Act, for voters to physically visit polling stations. To address this issue, the following measures could be contemplated:
• Establishment of special polling stations within prison facilities.
• Conveying prisoners to regular polling stations during designated hours under heightened security.
• Alternatively, an amendment to Section 72 of the Electoral Act to grant prisoners the right to vote by post could provide a more viable solution.

12. Irrespective of the chosen method, the Government bears a constitutional obligation to afford prisoners the opportunity to participate in all elections.

CONCLUSION
13. The judgment in Musarurwa’s case, while recognizing prisoners’ constitutional right to vote, disappointingly denied them this right. Nevertheless, the judgment’s dismissal on the grounds of mootness renders the pronouncements on prisoners’ voting rights obiter dictum, and hence not binding upon other courts. Consequently, the plaintiffs and any other parties acting in the public interest may initiate fresh proceedings in the High Court or the Constitutional Court to compel the Government to implement necessary measures, including potential amendments to the Electoral Act, to enable prisoners to exercise their voting rights in elections.