Gabriel Shumba, Sibonile Mfumisi, and Darlington Nyambiya v Minister of Justice, Legal and Parliamentary Affairs and Others

The applicants are Zimbabwean citizens residing outside Zimbabwe for various reasons (political and/or economic). They sought to participate in the 2018 harmonized general elections but were precluded by sections 23 and 72 of the Electoral Act. The applicants challenged these provisions as unconstitutional, arguing they violated their rights under sections 67 (political rights) and 56 (equality and non-discrimination) of the Constitution. They sought declarations that the failure to provide voting facilities to diaspora citizens was unconstitutional and orders requiring Zimbabwe to enable diaspora voting. The first applicant had previously approached the African Commission on Human and Peoples' Rights in 2012, which ruled in his favor, but Zimbabwe had not implemented those findings.

• Whether the Constitution of Zimbabwe directly or indirectly allows for the 'diaspora vote'
• Whether section 23 of the Electoral Act violates section 67(3) of the Constitution
• Whether section 72 of the Electoral Act violates sections 56(1), (3) and (4) of the Constitution (equality and non-discrimination)
• Whether international conventions and electoral laws of other countries influence the interpretation of Zimbabwe's electoral laws
• Whether residency requirements for voter registration are constitutional

The application was dismissed with no order as to costs.

The Constitution of Zimbabwe, when interpreted as a coherent whole, establishes a constituency-based electoral system limited to 210 constituencies within Zimbabwe's borders and does not provide for the diaspora vote. Section 67(3) granting voting rights must be read subject to other constitutional provisions, including the 4th Schedule which permits residential requirements. Section 23 of the Electoral Act, prescribing residency requirements, is constitutional as it facilitates the constituency-based system and does not violate section 67(3). Section 72 of the Electoral Act does not unconstitutionally discriminate because diaspora citizens who voluntarily left Zimbabwe are not in a similar position to government employees posted abroad who are deemed to remain resident in their constituencies. International treaties not incorporated into domestic law through an Act of Parliament (as required by section 327(2)) do not bind Zimbabwe's courts. The exclusion of the diaspora vote from the Constitution was a conscious legislative choice that courts cannot override through interpretation.

The Court observed that the exclusion of the diaspora vote appeared to be consciously contrived and intended by the Legislature, particularly since previous court judgments (Registrar General of Elections v Morgan Tsvangirai 2002, Madzingo v Minister of Justice 2005, and Bukaibenyu v Chairman of ZEC CCZ 12/17) had already held that diaspora voting was not provided for in law, yet when the new Constitution was enacted in 2013, no provision was inserted to change this position. The Court suggested that the appropriate remedy for citizens seeking diaspora voting rights is to lobby Parliament to amend the Constitution rather than seek judicial interpretation extending rights not expressly provided. The Court noted that residency requirements do not only affect diaspora voters but also citizens who move between constituencies within Zimbabwe. The Court commented favorably on the Canadian case of Frank v Canada (Attorney General) 2015 ONCA 536, which rationalized residency requirements as protecting the social contract and legitimacy of laws by ensuring that those making laws through their representatives are subject to those same laws. While many countries provide for diaspora voting, Zimbabwe must be guided by the wording of its own Constitution.

This case establishes definitive authority on the diaspora vote issue in Zimbabwe. It confirms that Zimbabwe's electoral system is constituency-based and that the Constitution, as currently worded, does not provide for diaspora voting except for limited categories of government employees. The judgment reinforces principles of constitutional interpretation requiring coherence across all relevant provisions and respecting the language used by the Legislature. It clarifies the dualist approach to international law in Zimbabwe, requiring formal incorporation of treaties before they have domestic legal effect. The case also demonstrates the limits of judicial power in constitutional matters, emphasizing that constitutional amendments are the prerogative of the Legislature, and that citizens must pursue political channels to effect such changes. The judgment has significant implications for millions of Zimbabweans living abroad and their participation in democratic processes.