Judge blocks prisoners’ demand for franchise in Zimbabwe elections

HARARE – High Court Judge Munamato Mutevedzi has dismissed with costs, a case in which former opposition jailbirds Yvonne Musarurwa, Tungamirirai Madzokere and Last Maengahama sought to be afforded the right to vote in the country’s polls while still serving time.

The three applicants who were still detained at Chikurubi Maximum Prison for murder in June 2017, aimed to get Zimbabweans authorities facilitate the registration and voting processes for prisoners on elections days.

They listed as respondents, Justice minister Ziyambi Ziyambi, Zimbabwe Electoral Commission chairperson Priscilla Chigumba, and the Zimbabwe Electoral Commission as the body that manages elections in the country.

The three persisted with the legal action even after they had been released from jail.

They were represented by Advocate Tererai Mafukidze, who insisted the case was still valid despite his clients having been released as it would benefit those still in prison.

Taking their release into consideration, the Judge said the relevance of the case had become disputable.

He also based his judgements on a similar case under the Constitutional Court of Zimbabwe (CCZ) in which one Gabriel Shumba sought the right to vote outside the country.

“Unfortunately for the applicants, between 2017 and this hearing, their personal stake in the application expired making their interest in the case moot.

“In addition, in the same period the intervening interpretation of the law by the highest court in the country in Gabriel Shumba put the legal question which arises in this case beyond disputation.

“This amounts to issue mootness I held earlier that when issue mootness exists the case or controversy must be dismissed because the prudential considerations which usually allow the court discretion to determine a moot issue cannot be resorted to.

“For the above reasons, I find that the application is moot.

“Equally, for the rationale spelt out, I refuse to exercise my discretion to determine the moot application on the merits.

“In the circumstances, the respondents’ objection in limine that the matter is moot is upheld. The application is therefore dismissed with costs.”

Personal stake mootness connotes a situation where a party’s personal interest in the dispute has expired.

Added the judge, “The reason why prisoners fail to vote is not that they are disqualified by the law but because of their circumstances of captivity, they cannot satisfy the additional residence requirements which are stipulated by law.

In terms of S 23(2) of the Act, a person ceases to be resident in a particular constituency if for a continuous period of twelve months, he or she has ceased to reside in that constituency.”

The prisoners are required by law to vote under the constituencies they registered to vote.

The Constitutional Court case was dismissed on grounds that though the law did not bar people from the diaspora from voting, it did not allow one to vote outside the constituency they were registered to vote.

Mutevedzi continued: “The CCZ was equally beseeched to make the same finding. It arrived at the conclusion that the residency requirements were both lawful and constitutional.

“It added that those requirements did not only apply to citizens in the diaspora but to those who were in the country but had ceased to reside in their constituencies.

“The CCZ is the highest court in Zimbabwe in relation to constitutional matters. Its decisions bind all other courts below it. This court is therefore eternally bound by that decision.”

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