ELECTION COURT WATCH 1/2022

[22nd November 2022]

Court Case on The Right of Prisoners to Vote

A recent High Court judgment has decided that prisoners – persons who are legally committed to prison as a punishment for a crime or who are detained in prison while awaiting trial – do not have the right to vote in Zimbabwean elections.  The judgment is Musarurwa & Others v Minister of Justice, Legal and Parliamentary Affairs & Others, and it can be accessed on the Veritas website [link].

Outline of the Case

The case began in 2017 when the applicants, who were long-term prisoners, applied to the High Court for an order declaring that they and all other prisoners in Zimbabwe were entitled to be registered as voters and to vote in elections.  They called on the respondents – the Minister of Justice and the Zimbabwe Electoral Commission [ZEC] to make all necessary arrangements to ensure that they and all other prisoners were registered as voters and able to vote.

The case was argued shortly before the 2018 election but the judge became ill and passed away before he could deliver judgment.  As a result the proceedings began again before another judge, Mr Justice Mutevedzi, who delivered judgment on the 26th October this year, 2022.

In the meantime the applicants had been released from prison, one under a presidential amnesty and the others after the Supreme Court overturned their convictions.  Hence they were no longer affected by result of the case – in legal parlance, the judge said, the case had become “moot”.  Despite this, the judge dealt with the issues they had raised:

• He said that section 67 of the Constitution gives prisoners, along with other adult citizens of Zimbabwe, the right to vote in elections.  This was accepted by all the parties to the case.  The only citizens disenfranchised by the Constitution are those who are detained as mentally disordered, those who have been declared by a court to be incapable of managing their affairs, and those who have been convicted of certain electoral crimes.
• However, before citizens can vote they must be registered on a voters roll, and to be registered on a roll they must meet requirements laid down in section 23 of the Electoral Act and authorised by the Fourth Schedule to the Constitution.  These requirements are that they must reside in the constituency concerned when they apply for registration and, if they cease to be resident there for more than eighteen months they are no longer entitled to be registered on the roll.

The learned Judge followed the judgment in the case of Shumba & Others v Minister of Justice & Others [link], where the Constitutional Court held that members of the Zimbabwean Diaspora were not entitled to the vote because they were not resident in Zimbabwe and so could not be registered on any voters roll.  The judge said that the Constitutional Court’s reasoning applied equally to prisoners and he was bound to follow it.  On that basis he held that prisoners were not entitled to vote and he dismissed the application.

Was the Judgment Correct?

With respect, there are at least three grounds on which the judgment may be questioned, and we shall deal with them in turn.

Mootness

The learned Judge said that because the applicants had been released from prison, the case became moot, i.e. academic, because they were no longer affected by the judgment.

Although the applicants did not specifically say they were bringing their case in the public interest in terms of section 85(1)(d) of the Constitution, they made it quite clear that that was what they were doing.  The orders which they asked the Court to make were for the benefit of “all persons who are prisoners”, not just for themselves alone.  Since the applicants claimed to be bringing the case to assert the rights of all prisoners, the case can hardly have become moot when the applicants were released from prison.

If ever there was a public interest case this was it, and to non-suit them because they did not cite section 85(1)(d) of the Constitution seems unduly formalistic.

The Constitution

The learned Judge and all the parties to the case accepted that the Constitution gives all citizens, including prisoners, the right to vote.  Indeed it goes further and, in section 155(2)(a), says that the State must take appropriate measures, including legislative measures, to ensure that all citizens qualified to vote are registered as voters.  The learned Judge did not mention this section though the applicants alluded to it and asked the court to order the Minister of Justice and ZEC:

“to make all necessary arrangements to ensure that … all persons who are prisoners are registered as voters on appropriate voters’ rolls and to ensure that they vote in any election.”

The Judge declined to make this order because, apart from the case having in his opinion become moot, he thought he was bound to follow a decision of the Constitutional Court on the voting rights of members of the Diaspora.

The Constitutional Court Case on the Diaspora Vote

In the case of Shumba & Others v Minister of Justice & Others, as we said earlier, the Constitutional Court held that members of the Zimbabwean Diaspora who are living outside Zimbabwe cannot be registered on constituency voters rolls in Zimbabwe and so cannot vote in elections.  That case may or may not be conclusive in regard to the voting rights of Diasporans, but it does not apply to prisoners who are incarcerated in Zimbabwe.  If prisoners are not entitled to be registered in their home constituencies because they no longer reside there, then they are entitled to be registered in the constituencies where their prisons are situated because that is where they are residing for the duration of their sentences.  The fact that their residence is involuntary is beside the point.

The Constitutional Court case therefore is not an authority for denying prisoners their rights, and the learned Judge should not have followed it.

What the Government Must Do

Prisoners who are citizens have a constitutional right to the vote and, by virtue of section 155(2)(a) and (b) of the Constitution, the Government must take steps, including legislative steps, to give all prisoners who are adult citizens the opportunity and facilities:

• to transfer their voter registration to the constituencies where their prisons are situated, and
• to cast their votes in any election.

There should be no difficulty in allowing prisoners to transfer their registration, but allowing them to vote may present problems because the only way they can vote under the Electoral Act as it stands is by going to a polling station – which may endanger the public and give the prisoners an opportunity to escape.  This is not an insurmountable problem, however, and any of the following measures could be adopted:

• Special polling stations could be opened at prisons
• Prisoners could be brought to regular polling stations at special hours and under tight security
• Easiest of all, section 72 of the Electoral Act could be amended to give prisoners the right to vote by post.

Whatever method is chosen, the Government has a constitutional duty to give prisoners an opportunity to vote in all elections.

Conclusion

The judgment in Musarurwa’s case is unsatisfactory.  While it accepted that prisoners have a constitutional right to vote it went on to deny them that right.

The judgment is not the end of the matter, however, because the learned Judge dismissed the applicants’ case on the ground that it had become moot.  This means that what he said about prisoners’ voting rights was not a necessary part of his decision;  it was what lawyers call an obiter dictum and does not bind other courts.  Hence the applicants and anyone else acting in the public interest can bring another application in the High Court or the Constitutional Court for an order compelling the Government to take the necessary measures, if necessary amending the Electoral Act, to give prisoners an opportunity to vote in elections.