By Mari Matutu | There was a long debate I had with varakashi on the decision taken by the People’s Chief, Chief Ndiweni over his petitioning of Britain on his right to vote from Britain in Zimbabwean elections.

Most people call it diaspora vote. For a long time it has been the people in Zimbabwe who were demanding diaspora vote and those outside the country were aloof.

There are few things that I want to share as eye opener over this. After this article everyone must be able to understand that diaspora vote can be demanded by those outside the country and diaspora vote is never meant to be demanded from ZEC.

I will just take a bit of winding route to clear misunderstandings I observed from Varakashi. If this article is taken seriously then zanu is gone.

1) The promotion and protection of all human rights and fundamental freedoms is considered as a priority objective of the United Nations in accordance with its purposes and principles, in particular the purpose of international cooperation.

2) In the framework of these purposes and principles, the promotion and protection of all human rights is a legitimate concern of the international community.

3) In the past, when human rights were still regarded as a country’s internal affair, other States and the international community were prevented from interfering, even in the most serious cases of human rights violations, such as genocide. That approach, based on national sovereignty, was challenged in the twentieth century, especially as a consequence of the actions of Nazi Germany and the atrocities committed during the Second World War – and subsequently by the international community’s failure to prevent mass atrocities in Cambodia, Rwanda and Bosnia and Herzegovina.

4) Today, the concept of sovereignty as prohibiting foreign interference has been largely replaced by one of responsibility, making States accountable for the welfare of their people.

5) Paragraph 4 of nternational community’s World Conference on Human Rights, Vienna, 1993, Vienna Declaration and Programme of Action, stated it clear on this.

6) The United Nations’ covenant, the International Covenant for Civil and Political Rights ICCPR gives two forms of rights.
(i) The collective rights of people joined together as one and
(ii) Individual rights.

7) To explore and expound the diaspora vote and clear all the excuses that may be given by zanu regime, one has to first and foremost look at the collective right given by the ICCPR. Identify the rights and enumerate them. This will help understand what one can claim as individual and what we can claim as a nation.

8) Article 1. Of the ICCPR reads
“1. 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

1. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
2. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

9) While a lot can be said about this article, including the Chilonga, Mutoko and Hwange people’s rights, I am more interested in the right to self determination as it apply to us as a nation. People are given right to determine their political status and pursue their economic, social and cultural development.

10) This right is the one that gives birth to constitution. Because a nation includes millions of people with different views, influence, strengths and weaknesses, it was seen that a written contract that regulates and binds how this collective right is observed and enjoyed is the best way. The constitution becomes a collective expression of what a group of people want to determine their destiny. Anything outside the constitution inconsistent with it is not a collective expression. It is not binding.

11) The process of having this collective expression of people’s right, includes wide consultation and voting for the draft. Once it is voted for, it becomes law that binds the said people.

12) I have brought this to rubbish the notion that Zanu or any political party has a right to regard itself as the custodian of the nation. I have brought this to remove the conflation of other individual rights to be regarded as collective right. Where if Chief Ndiweni go and petition Britain over the violation of his individual right, then some other individual want to conflate the nation to his or her personal opinion on the petition. Some were saying Chief Ndiweni is putting Zimbabwe into disrepute. Some say he should have Zimbabwean issues resolved by Zimbabweans. Such conflation come because people fail to separate what are regarded as collective rights and individual’s rights. As can be seen in article 1 of ICCPR, the right to vote is not a collective right and collective right of people to self determination is for us collectively to determine a political status and not political choices. In short , although right to vote and right to self determination are related, it must be noted that these rights are two distinct and stand alone rights. One exercised as individual and the other as collective.

13) Coming now to article 2. I urge everyone to read this article very carefully. Those that have been demanding diaspora vote must take closer look at the provisions. Those that are residing in other states other than UK must also read it and consider their actions.

14) Article 2 of ICCPR reads
” Article 2 .1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. 2 Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
   2.3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. “

15) While this whole article is pregnant with points to take note of, I will stick to that which relate to Chief Ndiweni’s concern and diaspora vote. If one is to read article 2.1 carefully, you will notice that-
(i) There are States that are party to the covenant.
(ii) Each state party has jurisdiction which it controls as territory.
(iii) In that jurisdiction of the territory there are individuals living in it.
(iv) From the article, it can be seen that, individuals in a territory may have many distinctive characters that include race, colour, sex and so on but in relationship to our issue, I want us to take one distinction mentioned, “Nation”.
(v) It is clear that each state party with jurisdiction over a territory can have individuals of different nations. In this case Britain has jurisdiction of the territory where Chief Ndiweni is legally residing but Chief Ndiweni is of Zimbabwe .
vi) From the article’s own wording, it is the duty of the state whose territorial jurisdiction the individual concerned is domiciled to ensure that the individual concerned’s rights as provided for in the covenant are recognized.
vii) It is Critical to note from the wording of the article, that those that spend their effort demanding diaspora vote from ZEC will be wasting time and approaching the wrong people.
viii) If you are staying in UK then the article is clear that it is UK, which is the state party to the covenant that has a duty to make sure an individual who is in its jurisdiction enjoy the right recognized in the Covenant. To claim your right you go to Prime Minister of Britain. If You are, in South Africa, Zambia, Botswana , Australia name it, go to the authorities of that country and demand the right.

ix) It may look funny but this is what the covenant says. The article does not give duty to Zimbabwe to ensure its citizens vote from wherever they are.

xi) If Zimbabwe is obliged to give right to vote it only gives right to only those that are in its jurisdiction.

xii) Here is the tricky part, when states give right to vote which is in article 25, they must give this right without distinction on nationality. That is where the whole matrix begins. Enjoy it as I unpack it.

16) The wording of article 2.1 of ICCPR must clear the confusion that elections of Zimbabwe can only be held in Zimbabwe or must only be conducted by ZEC. No. From the wording of the treaty, it is clearly possible for 4 Million Zimbabweans living in South Africa to hold elections in South Africa and elect a President of Zimbabwe, as long as all the electoral laws are followed. I shall add that when we deal on Zimbabwe constitution.

17) Article 2.2 shows that if a state has not taken steps through its laws to give effect to the rights in the covenant then the duty to do so is upon the state to do so. If Zimbabwe want to give right to its citizen around the world the right to vote, then the duty is upon them to do so and not the citizen. If, like what Chigumba says, Zimbabwe has no laws of its own to give the right to vote to those that are outside its jurisdiction, then it ceded its right to control how votes for those outside are run.
What it means in short is article 2.1 takes over. The countries with diasporans remain bound by the covenant.

18) Again article 2.3 shows clearly that if one’s right is infringed, in this case Chief Ndiweni, the state party in whose jurisdiction the person is living in is the one that has a duty to ensure that the person whose rights or freedoms as recognized by ICCPR and are violated, shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.
Take good care that, the person in diaspora does not seek remedy from Zimbabwe or put his or her claim against Zimbabwe. No. The claim is against the state in whose jurisdiction you are. The infringement is not by ZEC or Zimbabwe. The infringement is by the state whose jurisdiction the individual is.

19) I am more interested in article 2.3(b), it reads “To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy” . Pregnant with facts. Once the person has raised a claim of infringement, like Chief Ndiweni, it has to be determined by competent authorities as provided by legal system of the state. Critical. The legal system that provide the remedy is not of Zimbabwe but the legal system whose jurisdiction the individual concerned is domiciled. This means while Zimbabwe has its own legal system, when it comes to claim of a violation of a right recognized in the covenant, it is the legal system of the state whose territorial jurisdiction the individual concerned is living.

20) Then comes 2.3(c), “ensure that competent authorities enforce it once granted”. The competent authorities may include UN, AU, SADC, the Electoral bodies in the state and if credit still exist maybe ZEC.
It is very important to follow this as I shall look at independent electoral authorities further down.

21) This then takes us to article 25 of ICCPR. It reads “Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by se cret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. “

i) This is the right Chief Ndiweni is claiming. It says “every citizen”,( It does not identify a country or say “every citizen of a country”), shall have a right and opportunity without any of the distinctions mentioned in article 2.
ii) Without going back to article 2 and see the distinctions mentioned you will fall into zanu narrative. One of the distinction that must not be included is nationality. This then separate nationality from citizen. While most Zimbabwean nationals are living in Zimbabwe and become citizens of Zimbabwe in their country, it must be noted that there are many Zimbabwe citizens who are not residing in Zimbabwe. They remain Zimbabwean nationals where ever they are but their citizenship is for Zimbabwe. There are also nationalities living in Zimbabwe but not citizens of Zimbabwe yet remain citizens of their respective states.

22) By reading this article many people then get confused. Why?
i) Because people believe the state is the one that GIVES individuals the right to vote.

ii) Because people think the state has sovereign right over right to vote.

iii) A better way to explain this is to look at the wording of the Preamble of the ICCPR
iv) The Preamble to ICCPR reads
“Preamble The States Parties to the present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles”

v) Without fully understanding that the right to vote is inherent to a citizen of a country and it is not a commodity that you receive at the pleasure of someone or state, you are bound to fall prey to the rhetoric given by some zanu people.

vi) By going back to article 25’s wording it means a person walks around the globe with his or her inherent human right. You do not drop your right to vote as a citizen. Now we are not always in our country of birth at all given time and as we have read from preamble no state gives a person the right, all what states do is promote, respect, protect and fulfil the rights without distinction.

vii) When issues relating to Zimbabwe are being discussed, the state with territorial jurisdiction has to ensure these citizen participate. This means that even when citizens of Zimbabwe are voting in Zimbabwe, the state is giving this right not because its their citizens because if that is the case then its a distinction on nationality, When Zimbabwe is letting people to vote for any post in Zimbabwe, it is just exercising the duty in article 2.1 without distinction. The people in Zimbabwe have the inherent right to vote and are not being given the right by the state. It is only the jurisdiction of the territory that make them give right to those that are under its jurisdiction.

23)There comes a question. Who will run the election, how will ZEC run the election? Who will fund the election exercise?

i) I will first share paragraph 20 of General Comment 25 of United Nations, just to clear doubt about role of ZEC . It reads

“20. An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. States should take measures to guarantee the requirement of the secrecy of the vote during elections, including absentee voting, where such a system exists. This implies that voters should be protected from any form of coercion or compulsion to disclose how they intend to vote or how they voted, and from any unlawful or arbitrary interference with the voting process. Waiver of these rights is incompatible with article 25 of the Covenant. The security of ballot boxes must be guaranteed and votes should be counted in the presence of the candidates or their agents. There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes. Assistance provided to the disabled, blind or illiterate should be independent. Electors should be fully informed of these guarantees”

ii) Please take a good look at this General comment. It relates to the covenant and an Electoral authority that is established is an independent authority. It is not a state organ. It does not belong to anyone. It is not bound by other laws other than electoral laws.

iii)This is critical to note because it is a mistaken belief that Elections can only be run by ZEC. It is also mistaken belief that elections must be run in terms of Zimbabwean laws. That is why we find Khupe in parliament on arguments of civil litigation. That is why we have not had by elections Zimbabwe for 2 years. It is all because people believe Zimbabwe elections can only be run in Zimbabwe and only by a Zimbabwean electoral authority.

iii) The easier way of looking at this is using examples of football. Every country that plays soccer has a referees and each referee register in the association board that officiate local games. If Dynamos is playing Caps it is usual a referee is contracted to officiate. More often a local referee. If a Dynamos and Caps choose to play in England and a referee from England is used it does not change the results of the game and the referee will always use the soccer rules.

iv) It is evident that an electoral authority is not established in a state to run an election for that particular state only, otherwise it violates the article 25 and it becomes discrimination.

v) It is also evident that an election authority does not run elections on laws that are not compatible to the covenant but only laws that are compatible with covenant.

24) The General Comment then force us to look at our constitutional provision on Zimbabwe Electoral authority.

i) Section 235 of constitution talks of Independence of Commissions and (1)The independentCommissions— (a)are independent and are not subject to the direction or control of anyone; (b)must act in accordance with this Constitution; and (c)must exercise their functions without fear, favour or prejudice; although they are accountable to Parliament for the efficient performance of their functions. (2)The State and all institutions and agencies of government at every level, through legislative and other measures, must assist the independent Commissions and must protect their independence, impartiality, integrity and effectiveness. (3)No person may interfere with the functioning of the independent Commissions.

ii) Section 238 talks of the Establishment and composition of Zimbabwe Electoral Commission and reads ” (1) There is a commission to be known as Zimbabwe Electoral Commission consisting of— (a)a chairperson appointedby the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders; and (b)eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders. (2)The chairperson of the Zimbabwe Electoral Commission must be a judge or former judge or a person qualified for appointment as a judge. (3)If the appointment of a chairperson to the Zimbabwe Electoral Commission is notconsistent with a recommendation of the Judicial Service Commission, the President must cause the Committee on Standing Rules and Orders to be informed as soon as practicable. (4)Members of the Zimbabwe Electoral Commission must be Zimbabwean citizens and chosen for their integrity and experience and for their competence in the conduct of affairs in the public or private sector. (5)Members of the Zimbabwe Electoral Commission are appointed for a sixyear term and may be re-appointed for one such furtherterm, but no person may be appointed to or serve on the Commission after he or she has been a member for one or more periods, whether continuous or not, that amount to twelve years.

iii) While section 238(4) of the constitution states that members of Electoral Commission must be Citizens of Zimbabwe, it does not follow that ZEC is for Zimbabwean election or is an arm of the state or accountable to the state. It still remains that ZEC is an ELECTORAL AUTHORITY in Zimbabwe as opposed to an Electoral authority of Zimbabwe.

iv) As we have seen that states ensure individuals have their right to vote as individuals and not as nationals, within its jurisdiction without distinction, it must be seen that the state uses its local courts, local electoral authorities, police and army fulfil this obligation to individuals and not nationals without any distinction.

v) It must then be noted that the Duty ZEC is playing is of agency to United Nations which is the guarantor of all human rights.

25) Section 239 of constitution states Functions of Zimbabwe Electoral Commission as follows
“The Zimbabwe ElectoralCommission has the following functions— (a)to prepare for, conduct and supervise— (i)elections to the office of President and to Parliament; (ii)elections to provincial and metropolitan councils and the governing bodies of local authorities; (iii)elections of members of the National Council of Chiefs established by section 285; and (iv)referendums; and to ensure that those elections and referendums are conducted efficiently, freely, fairly, transparently and in accordance with the law; (b)tosupervise elections of the President of the Senate and the Speaker and to ensure that those elections are conducted efficiently and in accordance with the law; (c)to register voters; (d)to compile voters’rolls and registers; (e)to ensure the propercustody and maintenance of voters’rolls and registers; (f)to delimit constituencies, wards and other electoral boundaries; (g)to design, print and distribute ballot papers, approve the form of and procure ballot boxes, and establish and operate pollingcentres; (h)toconductand supervise voter education; (i)toaccreditobservers of elections and referendums; (j)to give instructions to persons in the employment of the State or of a local authority for the purpose of ensuring the efficient, free, fair, proper and transparent conduct of any election or referendum; and (k)to receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate.”

i) If one is to read this section blindly he is bound to fall prey to the narrative that ZEC is there only to run Zimbabwe election based on list of functions in that section and only ZEC can run the elections mentioned.

ii) I did it deliberately to quote this provision that list the functions of ZEC but bear in mind that it is not the state that gives you the right to vote nor the state that guarantee the right vote neither the right to vote a collective right.

iii) All what the state is doing is regulating how it intend to protect a right in Chapter 4 of the Constitution, that is to say section 67, in line with its obligation in section 44 which reads
“The State and every person, including juristic persons, and every institution and agency of the government at every level must respect, protect, promote and fulfil the rights and freedoms set out in this Chapter.”

iv) The state is bound in terms of section 47 to fulfil its duty of giving right to EVERY Zimbabwean citizen the right to vote yes as clearly spelt in section 67 not because it is a sovereignty duty but because it is the state with territorial jurisdiction in Zimbabwe . However it is impossible for every Zimbabwean to be in Zimbabwe at any given time and it is impossible to regulate how other state chooses to ensure each individual enjoys his or her right.

v) This is where article 2.3(b) of ICCPR stated that the claim of violation of right will be determined by an authority provided for by legal system of the state.

vi) So yes the functions of ZEC are spelt by the legal system of Zimbabwe for those that are under the jurisdiction of Zimbabwe but as section 47 of Constitution state, “that does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.”

vii) Citizens of other nations who are under Zimbabwe’s territory have right to have their right to vote for elections in their countries and Zimbabwe has same duty to fulfill that right and ZEC as the independent electoral body in Zimbabwe has the function to run those elections again.

26) Better way to look at ZEC is to look at its objective than its function as stated on the basis of territory.

i) Section 233 reads

“Objectives of independent Commissions

The independent Commissions have the following general objectives in addition to those given to them individually— (a)to support and entrench human rights and democracy;
(b)to protect the sovereignty and interests of the people;
(c)to promote constitutionalism; (d)to promote transparency and accountability in public institutions; (e)to secure the observance of democratic values and principles by the State and all institutions and agencies of government, and governmentcontrolled entities; and (f)to ensure that injustices are remedied.

ii) I feel like saying waaal. While Independent commissions in Zimbabwe have functions of their own, the general aim of them is clearly spelt in section 233.

iii) Of note is 233(b)- ” to protect the sovereignty and interest of the PEOPLE. It does not say “sovereignty and interest of the state”.

iv) Note 233 (e), “to secure the observance of democratic values and principles by the State and all institutions and agencies of government, and government controlled entities”.

v) This must clear doubt that ZEC is an electoral authority aimed at securing sovereignty of Zimbabwean state or sovereignty of Zimbabweans only. It says “protect sovereignty and interest of people” which is “without distinction” on grounds mentioned article 2.1 of ICCPR and repeated in section 56(3) .

vi) No doubt ZEC is an Electoral Authority that administer a right in chapter 4. It cannot do it just for Zimbabweans living in Zimbabwe and not for other nationals without violating section 56(3).

v) That means in simple terms ZEC is an electoral authority in Zimbabwe with duty to “secure the observance of democratic values and principles by the Zimbabwean State and all its institutions and agencies of its government, and governmentcontrolled entities”

27) This then means all electoral authorities in UN member states have exactly the same mandate to individuals living in their territory.

28) As I conclude I will use section 88 to explain but one can also read section 117 and 162 to get the point.

i) Section 88 of Zimbabwe constitution reads ” Executive authority (1)Executive authority derives from the people of Zimbabwe and must be exercised in accordance with this Constitution. (2)The executive authority of Zimbabwe vests in the President who exercises it, subject to this Constitution, through the Cabinet.”

ii) From the wording it can be seen that authority is derived from people of Zimbabwe and not people in Zimbabwe.

iii) Section 35 of constitution put citizens of Zimbabwe to equal status and equal protection from where ever they are.

iv) This means it is possible for people of Zimbabwe from where ever they are to individually claim right of vote from the state where they are domiciled, and the authorities of that state grant an order directing the relevant authorities to accord the right.
v) Where People of Zimbabwe living in South Africa are 4million can get an order from South African Constitutional Court with exclusive jurisdiction to hear and determine matters relating to human rights. As the ICCPR 2.1 states that the duty to protect the right to vote is on the state whose jurisdiction the concerned individual is, the South African constitutional Court can only direct the authorities of South Africa .

vi) By this it means 4 million Zimbabweans if they all vote for Chamisa and zanu get 2million from Zec then Chamisa is president.

What are you waiting for. Get MDC structures in South Africa, Botswana, Namibia, Zambia, Australia, UK, USA get court orders directing those states to give them the right.
The duty to give diaspora vote is with the state in whose jurisdiction the individual is.

Ndapedza hangu. Ngaapinde mukomana