REPORTABLE
(7)
Judgment
No S.C. 12\2002
Civil
Appeal No 30\2002
(1)
REGISTRAR-GENERAL OF ELECTIONS (2) REGISTRAR-GENERAL OF
CITIZENSHIP (3) REGISTRAR-GENERAL OF BIRTHS AND
DEATHS
(4) THE CHIEF IMMIGRATION OFFICER (5) THE MINISTER
OF HOME AFFAIRS (6) THE MINISTER
OF JUSTICE,
LEGAL AND PARLIAMENTARY AFFAIRS (7) THE PRESIDENT
OF THE REPUBLIC OF ZIMBABWE
(8) THE
ATTORNEY-GENERAL OF ZIMBABWE v MORGAN TSVANGIRAI
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, SANDURA JA, CHEDA JA, ZIYAMBI JA & MALABA JA
HARARE
FEBRUARY 15 & 28, 2002
M.
Majuru, with him
F. Chatukuta,,
for the appellants
A.P.
de Bourbon SC, with
him E.T.
Matinenga,
for the respondent
CHIDYAUSIKU
CJ: The respondent in this case launched a court application in
the High Court in which he sought the following
relief:
IT
IS ORDERED THAT:-
In
order to comply with Schedule 3 paragraph 3 of the Constitution of
Zimbabwe, the First, Second and Fourth Respondents shall make
available forthwith to the Third Respondent all the records in their
possession or under their control containing the full names
and
particulars of all persons who have, as at the date of this Order,
attained the age of 18 years or over and who:
Are
citizens of Zimbabwe; or
Since
31 December 1985, have been regarded by virtue of a written law as
permanent residents in Zimbabwe.
The Third
Respondent shall compile a Common Roll in compliance with section
28(2) of the Constitution of Zimbabwe within one (1)
month of the
date of this Order, containing a full list of all persons who have,
as at the date of this Order, attained the age
of 18 years or over
and who:
Are
citizens of Zimbabwe; or
Since
31 December 1985 have been regarded by virtue of a written law as
permanent residents in Zimbabwe;
The Third
Respondent shall add to the Common Roll compiled in accordance with
Clause (2) above all persons who provide reasonable
proof to his
office within one month of the date of this Order that since 31
December 1985 they have been permanent residents in
Zimbabwe.
The
Common Roll to be compiled by the Third Respondent in accordance
with Clauses (2) and (3) above shall be in the form of one
roll and
shall consist of all those persons entered on the Common Roll who
shall be deemed to be registered on the Common Roll.
Save
as provided for in Clause (3) herein, it shall not be necessary for
any person entitled to be placed on the Common Roll to
apply to
register themselves on the Common Roll.
The
Third Respondent shall allow the following persons to vote at the
forthcoming Presidential Election:
All
persons issued with a voters confirmation card or a certificate
of registration as a voter in accordance with Section 23(1)
of the
Electoral Act [Chapter 2:01];
All
persons issued with a provisional identity document in accordance
with Section 23(3)(a) of the Electoral Act [Chapter 2:01];
All
persons issued with an identity document in accordance with Section
23(3)(b) of the Electoral Act [Chapter 2:01].
All persons
shall be entitled to vote at the forthcoming Presidential Election
at any designated polling booth in Zimbabwe.
Section
158 of the Electoral Act be and is hereby declared ultra
vires
of the Constitution of Zimbabwe and invalid.
Respondents
3, 6 and 10 shall pay the Applicants costs of suit, jointly and
severally, the one paying the others, to be absolved.
The court
application was opposed by the appellants. The learned judge in the
court a
quo,
after submissions by counsel, made the following order:-
1. In
order to comply with section 28(2) of the Constitution of Zimbabwe,
for the Presidential elections scheduled for 9 and 10 March
2002, the
Registrar-General shall ensure that there is in place a Common Roll.
The
Common Roll referred to in 1 above, shall contain the names and such
other information as may be necessary, of all persons who
have
attained the age of 18 years, are citizens of Zimbabwe or, since
1985, have been regarded by a written law to be permanent
residents
in Zimbabwe and who meet the residential requirements of any
particular constituency or have satisfied the Registrar-General
that
for reasons related to place of origin, political affiliation or
otherwise, it is appropriate that they be registered in a
constituency in which they do not reside.
The
Registrar-General shall restore to the voters roll of any
constituency, all voters who, on or before January 18, 2002, were
on
that roll or were eligible but were refused to be on that roll, who
may have lost or renounced their citizenship of Zimbabwe,
but who
since 1985, have been regarded by a written law to be permanently
resident in Zimbabwe.
The
3rd
respondent shall make adequate and reasonable administrative
arrangements for all voters registered on the common roll who will
not be in their constituencies on the polling days, to exercise
their vote; and
Each
party shall bear its own costs.
The appellants
appealed against the judgment of the court a
quo
upon the following grounds:-
1. The
High Court erred in law in finding that the common roll for the
holding of Presidential Elections, as contemplated by the
Constitution,
consists of a single undivided document constructed
without reference to delimited constituencies.
The High
Court correctly found that applicants for registration must satisfy
the prescribed residential qualifications in order
to be registered
on their respective constituency rolls but erred in law in holding
that registered voters are entitled to vote
at any place outside
their respective constituencies.
The High
Court erred in law in finding that registered voters who cease to
qualify by virtue of having lost or renounced their citizenship
remain eligible to vote as permanent residents even if they are not
permanent residents within the meaning of Schedule 3
to the
Constitution.
The
Appellants pray that the appeal be allowed with costs and that the
decision of the court a
quo be altered to one
dismissing the application with costs.
The
respondent also cross-appealed against the judgment upon the grounds
set out in the notice of appeal which read:-
1. The
learned Judge erred in holding that it was in law a requirement for
registration on the common roll for the purposes of a presidential
election in Zimbabwe for a person to prove his residence in a
particular constituency, and particularly to prove residence at a
fixed
address.
The
learned Judge erred and failed to properly apply her discretion by
ordering each party to bear its own costs of the matter,
more so in
that the Respondent was substantially successful in the matter and
no facts existed to deprive the Respondent of the
usual order for
costs.
The
Respondent will pray that this cross-appeal be allowed with costs and
that paragraph 2 of the order of the High Court be altered
by the
deletion of all the words therein after the words in the fourth line
to be permanent residents in Zimbabwe. And furthermore
that
paragraph 5 be altered to read:-
5. The First, Second, Third
and Sixth Respondents shall jointly and severally, the one paying the
others to be absolved, pay the costs
of the Applicant.
It
is apparent from the notice of appeal that the appellants are
essentially appealing against paragraphs 3 and 4 of the order of
the
court a quo
while the respondent is appealing against part of paragraph 3 of the
same order.
The notice of appeal and
cross-appeal reveal that the following are the issues that fall for
determination by this Court.
The
meaning or correct interpretation to be ascribed to section 28(2) of
the Constitution. In particular whether that section
enjoins the
first appellant to make certain administrative arrangements to
enable voters away from the constituencies in which
they are
registered to vote in other constituencies.
The
correct meaning to be ascribed to paragraph 3 of Schedule Three.
In particular whether a citizen loses his or her right to
vote upon
loss of citizenship.
Whether
residence is an essential requirement for registration on a common
roll for the election of a President.
Before
dealing with the issues I wish to dispose of the preliminary issue of
the application to lead further evidence. That application
is
dismissed because this matter can be determined without reference to
the evidence sought to be introduced. That evidence is,
therefore,
irrelevant.
WHAT
DOES SECTION 28(2) OF THE CONSTITUTION MEAN?
Section 28(2) of the
Constitution provides as follows:-
28(2) The
President shall be elected by voters registered on the common roll.
The
learned judge in the court a
quo had this to say on
the meaning to be ascribed to this section:-
In
terms of section 28(2) of the Constitution, the President shall be
elected by voters on the common roll. Therefore in my
opinion, all
those who are on the common roll have the right to vote for the
President. There are no further requirements necessary
for one to
exercise their right to vote other than to show that one is on the
common roll. If the intention of the legislature
were to impose any
further qualifications, it would have specifically made that
provision in the Constitution.
The applicant has argued that
those on the common roll are entitled to vote. The respondents have
advanced a rather half-hearted
argument against this contention. It
has been suggested by the respondents that residence remains an
essential qualification at
the voting stage particularly as regards
voters who qualify qua
permanent residence. I have not been referred to any provision in
the Constitution which has the effect of derogating from the
apparent
right given voters on the common roll by section 28 of the
Constitution. As such I am reluctant to add a residential
qualification
to the right. For those who would have qualified to
be on the roll by virtue of being permanent residents the law is
quite clear
that they lose their qualification when they cease to be
residents. They therefore lose the right to be on the roll.
It is therefore my finding that
the law provides that all voters registered on the common roll are
entitled to vote and the 3rd
respondent has to put in place the administrative machinery to give
effect to that law.
The learned judge was correct
in observing that the section confers on the voter registered on the
common roll the right to vote
for a President in a Presidential
Election. The section however does not provide for how, when and
where that right to vote is
to be exercised. The learned judge,
purporting to act in terms of this section, ordered the first
appellant to make adequate and
reasonable administrative arrangements
for all voters registered on the common roll who would not be in
their constituencies on the
polling days, to exercise their votes in
the constituencies they happen to be on the election day. My
reading of the section is
that it confers a constitutional right on a
voter to vote for a President. The learned judge concluded that a
voter has a constitutional
right to vote outside his or her
constituency. This is where the learned judge in the court a
quo erred. I am
fortified in my view by the provisions of section 28(4) which
provides as follows:-
28
(4) The procedure for the nomination of candidates for election in
terms of sub-section (2) and the election of the President
shall be
as prescribed in the Electoral Law.
The
above subsection makes it clear that the procedures, that is how,
when and where to vote, are to be provided for under the Electoral
Law. The Electoral Act [Chapter 2:01] (hereinafter referred to as
the Act) provides for the procedures to be followed in Presidential
elections. Section 101(2) of the Act provides:-
101
(2) Where two or more candidates for President are validly
nominated, a poll shall be taken in each constituency for the
election
of a President.
Whenever
an election for a President is necessary by reason of there being
more than one candidate nominated, such election shall
take place in
each constituency.
It
is common cause that the first appellant, in his capacity as
Registrar-General of Elections has directed that each voter on the
common roll shall vote in his or her constituency in the forthcoming
Presidential election. The respondent is not, in any way,
challenging this decision. It is the failure of the first appellant
to make adequate and reasonable arrangements for all voters
registered on the common roll who would not be in their
constituencies on the polling days which he alleges is
unconstitutional.
Providing for as many people to vote as possible
is highly commendable. Failure to provide in the manner alleged is,
however,
not unconstitutional. The contention that the failure to
provide the above facility amounts to the disenfranchisement of a
voter
is simply untenable. The voter does not lose his right to
vote. He is disabled from exercising the right by being in a wrong
constituency at the time he is expected to vote. The disability
would not, in the circumstances, have resulted from any action
by the
Registrar-General.
In
my view section 28(2) of the Constitution does not confer on a voter
registered on the common roll the constitutional right to
vote
outside the constituency in which he is registered.
Having
come to the above conclusion it only remains to consider whether the
first appellants decision that registered voters
would vote in the
constituencies in which they are registered can be impunged on any
other grounds.
Section
15 of the Act confers certain powers on the first appellant. In the
exercise of such powers the first appellant is not
subject to the
direction of any person or authority except the Electoral
Directorate. Section 15 of the Act provides as follows:-
15
(1) There shall be a Registrar-General of Elections whose office
shall be a public office and shall form part of the Public Service.
(2) The
Registrar-General shall exercise such functions as are imposed or
conferred upon the Registrar-General by or under this Act
and, in the
exercise of his functions, the Registrar-General shall not be subject
to the direction or control of any person or authority
other than the
Electoral Directorate, but shall have regard to any report or
recommendation of the Electoral Supervisory Commission.
The above provisions clearly
empower the first appellant to make the decision that he made. The
court can only interfere with
that decision on any of the recognised
grounds for review such as lack of compliance with the law or gross
irrationality. I have
already concluded that the decision was
within the powers of the first appellant, see section 101 of the Act.
The decision is not,
per
se, irrational. It is
not unreasonable to require a person to vote in the constituency in
which he is registered as a voter. There
is no evidence before the
court on the number of voters who would be adversely affected by the
requirement that people vote in the
constituency in which they are
registered as voters to enable the court to make an informed decision
as to the reasonableness or
otherwise of the first appellants
decision. Accordingly no basis has been established on which this
Court can interfere with
the decision of the first appellant made in
terms of s 15 of the Act. Accordingly the first appellant succeeds
on this ground.
WHAT IS THE CORRECT
MEANING OF PARAGRAPH 3 OF SCHEDULE 3 OF THE CONSTITUTION OF
ZIMBABWE?
Paragraph
3 of the order in the court a
quo provides as
follows:-
The
Registrar-General shall restore to the voters roll of any
constituency, voters who, on or before January 18, 2002, were on that
roll or were eligible but were refused to be on that roll, who may
have lost or renounced their citizenship of Zimbabwe, but who
since
1985, have been regarded by a written law to be permanently resident
in Zimbabwe.
The
first appellant appeals against this finding on the ground that the
learned judge erred at law in concluding that registered
voters who
cease to qualify to be on the voters roll by virtue of having lost
or renounced their citizenship remain eligible to
vote on the ground
that they are permanent residents.
Schedule 3(3)(1)
provides as follows:-
3(3)(1) Subject
to the provisions of this paragraph and to such residence
qualifications as may be prescribed in the Electoral
Law for
inclusion on the electoral roll of a particular constituency, any
person who has attained the age of eighteen years and who
is a citizen of
Zimbabwe; or
(b) since the 31st December, 1985, has been regarded by
virtue of a written law as permanently resident in Zimbabwe;
shall be qualified
for registration as a voter on the common roll.
The
above provision confers the right to vote on two distinct and
separate categories or classes of people, the citizen and
the
person who has since the 31stDecember 1985 been regarded
by virtue of a written law as permanently resident in Zimbabwe.
It was common
cause that the word since in subparagraph (1)(b) has to be read
as meaning as at, see paragraph 25 of
the respondents heads
of argument. I agree with the submission therein. What that means
is that a person referred to in subparagraph
(b) has to be regarded
as a permanent resident as at that date and not a day later.
After conferring
the right to vote on the two categories of people paragraphs
3(3)(3)(a)(c) proceed to provide how each category
would lose the
right to vote. They provide as follows:-
3. (3) Any
person who is registered on the electoral roll of a constituency
shall be entitled to vote at an election which
is held for that
constituency unless
he has then ceased
to be a citizen of Zimbabwe; or
in
the case of a person who was registered on the electoral roll by
virtue of qualifications referred to in subparagraph (1)(b),
he has ceased to be so qualified.
The above
provisions explicitly state that a citizen loses his or her right to
vote upon ceasing to be a citizen and a permanent
resident upon
losing the permanent resident status formerly possessed by him in
terms of subparagraph (1)(b) of section 3. The
plain and primary
meaning of the words in the enactment is, in my view, clear and
unambiguous. The provisions confer on the citizen
the right to vote
which he loses upon ceasing to be a citizen. Equally the right to
vote is conferred on the person regarded as
a permanent resident
which he loses upon loss of residence.
It has been
argued that a citizen is also a permanent resident and, therefore,
included in the persons referred to in para. 3(1)(b).
The argument
is further that when such a person loses his citizenship he remains
qualified as a voter by virtue of a residual permanent
resident
status. I am not persuaded by this reasoning. I see nothing in
the language nor the context of the legislation to justify
such an
interpretation. At best this interpretation is secondary. There is
no need to resort to a secondary meaning when the primary
meaning is
clear.
The background to
the enactment of Schedule 3, its history and the debates during its
passage in Parliament, clearly demonstrate
that the legislature
intended the primary meaning set out above.
Is it permissible
to take into account the Parliamentary debates, history and
background of an enactment in determining its meaning
or the
intention of the legislature?
In
Hewlett v Minister of Finance1981 ZLR 571, it was held:-
that in
interpreting a Constitution the principles of interpretation are
basically no different from those governing the interpretation
of any
other legislation, but recognition must be given to the character and
origin of the document and interpretation must be guided
by the
principle of giving full recognition and effect to those fundamental
rights and freedoms set out in the Constitution. It
is not
permissible however, to take into account proposals and discussions
in the preparation of the Constitution. (see headnote)
The
first proposition emerging from the decision in the Hewletts ,
supra, is that the principles governing the interpretation of
a Constitution are the same as those governing the interpretation of
a statute.
The second is that it is not permissible to take into
account the background to a Constitution in interpreting its meaning.
I have no
difficulty with the proposition that the principles of interpretation
of a Constitution and any other legislation are
the same.
However,
the proposition that it is not permissible to take into account
proposals and discussions in the preparation of the Constitution
is
no longer good law. It might have been in 1981. That proposition
is based on a case that has since been overruled. In
Hewlettscase, supra,FIELDSEND CJ reasoned as follows
at p 582:-
There
is one further point on the question of interpretation. It was
argued that we could have regard, particularly in relation
to the
significance of section 16(3) which dealt with pension rights, to an
extract from proposals tables by the British Government
on the
3rdOctober, 1979, at a plenary session of the Lancaster
House Conference that led to the settlement finally formalized by the
present
Constitution of the 6thDecember, 1979. There are
a number of reasons why I think it would be wrong and dangerous to
rely on such material.
In
the first place the general principle of our law is clearly stated in
the speeches of the majority of the Law Lords in Black-Clawson Ltd
v Papierwerke AG[1975] AC 591; [1975] 1 All ER 810 (H.L.)
accurately reflected in the headnote in the following terms:
In considering
the report of the Foreign Judgments (Reciprocal Enforcement)
Committee r1932 presented to Parliament before the passing
of the Act
of 1933 and containing a draft Bill which was substantially adopted
in the subsequent legislation, the House, in construing
the Act, was
entitled to have regard to the statement contained in the report of
the mischief aimed at and of the state of the law
as it was then
understood to be, but it was not entitled to take into account the
committees recommendations or its comments on
the draft Bill
It is not proper to
use the report of a committee or commission or any official notes on
a clause of a draft Bill for a direct statement
of what a proposed
enactment is to mean or what the committee or commission thought it
means
The
exclusionary rule set out in Hewlettscase, supra, is
derived from English law. The English courts have since modified
the exclusionary rule.
In
Pepper (Inspector of Taxes) v Hart[1993] 1 All ER 42 at 43 the
House of Lords held:-
(1)
(Lord Mackay L.C. dissenting) Having regard to the purposive approach
to construction of legislation the courts had adopted in
order to
give effect to the true intention of the legislature, the rule
prohibiting courts from referring to parliamentary material
as an aid
to statutory construction should, subject to any question of
parliamentary privilege, be relaxed so as to permit reference
to
parliamentary materials where (a) the legislation was ambiguous or
obscure or the literal meaning led to an absurdity, (b) the
material
relied on consisted of statement by a minister or other promoter of
the Bill which lead to the enactment of the legislation
together if
necessary with such other parliamentary material as was necessary to
understand such statements and their effect and
(c) the statements
relied on were clear. Furthermore, the use of parliamentary
material as a guide to the construction of ambiguous
legislation
would not infringe s 1, art 9 of the Bill of Rights since it would
not amount to a questioning of the freedom of
speech or
parliamentary debate provided counsel and the judge refrained from
impugning or criticising the ministers statements
or his
reasoning, since the purpose of the courts in referring to
parliamentary material would be to give effect to, rather than
thwart
through ignorance, the intentions of Parliament and not to question
the processes by which such legislation was enacted or
to criticise
anything said by anyone in Parliament in the course of enacting it
The
exclusionary rule seems to me to be an affront to common sense. It
excludes the court from accessing what the legislator
said was its
intention in the process of enacting the legislation. I find myself
in agreement with the following remarks of LORD
BRIDGE OF HARWICH in
Pepperscase, supraat p 49f:-
Following the
further arguments of which we have had the benefit, I should find it
very difficult, in conscience, to reach a conclusion
adverse to the
taxpayers on the basis of a technical rule of construction requiring
me to ignore the very material which in this
case indicates
unequivocally which of the two possible interpretations of s 63(2) of
the 1976 Act was intended by Parliament. But,
for all the reasons
given by my noble and learned friend LORD BROWNE-WILKINSON, with
whose speech I entirely agree, I am not placed
in that invidious
situation.
In
Peppers , supra, the court relied on extensive
remarks made in the House of Commons during the passage of the Act
under consideration in determining
the intention of the legislature.
It
is also clear that Pepperscase, supra, overrules
Black Clawson Ltd, supra, upon which FIELDSEND CJ relied for
his conclusion in Hewlettscase supra.
In South Africa
it is permissible, in interpreting the Constitution, to have regard
to the purpose and background of discussions
on the Constitution.
It is also permissible in South Africa, in interpreting a statute, to
have regard to the purpose and background
of the legislation in
question.
In
S v Makwanyane & Anor1995 (3) SA 391 (CC) CHASKALSON P had
this to say at pp 404F-405F:
Legislative
history
The written argument
of the South African Government deals with the debate which took
place in regard to the death penalty before
the commencement of the
constitutional negotiations. The information that it placed before
us was not disputed. It was argued
that this background information
forms part of the context within which the Constitution should be
interpreted.
Our Courts have held
that it is permissible in interpreting a statute to have regard to
the purpose and background of the legislation
in question.
Certainly no less
important than the oft repeated statement that the words and
expression used in a statute must be interpreted according
to their
ordinary meaning is the statement that they must be interpreted in
the light of their context. But it may be useful to
stress two
points in relation to the application of this principle. The first
is that the context, as here used, is not limited
to the
language of the rest of the statute regarded as throwing light of a
dictionary kind on the part to be interpreted. Often
of more
importance is the matter of the statute, its apparent scope and
purpose, and, within limits, its background.
Debates
in Parliament, including statements made by Ministers responsible for
legislation, and explanatory memoranda providing reasons
for new
Bills have not been admitted as background material. It is,
however, permissible to take notice of the report of a judicial
commission of enquiry for the limited purpose of ascertaining the
mischief aimed at (by) the statutory enactment in question.
These principles were derived in part from English law. In England
the Courts have recently relaxed this exclusionary rule and
have
held, in Pepper (Inspector of Taxes) v Hart and related
appealsthat, subject to the privileges of the House of Commons,
reference to
parliamentary material should be permitted as an aid to the
construction of legislation which is ambiguous or obscure
or the
literal meaning of which leads to an absurdity. Even in such cases
references in court to parliamentary material should
only be
permitted where such material clearly discloses the mischief aimed at
or the legislative intention lying behind the ambiguous
or obscure
words.
As
the judgment in Pepperscase shows, a similar relaxation of
the exclusionary rule has apparently taken place in Australia and New
Zealand. Whether our Courts
should follow these examples and extend
the scope of what is admissible as background material for the
purpose of interpreting statutes
does not arise in the present case.
We are concerned with the interpretation of the Constitution, and
not the interpretation of
ordinary legislation. A constitution is
no ordinary statute. It is the source of legislative and executive
authority. It determines
how the country is to be governed and how
legislation is to be enacted. It defines the powers of the
different organs of State,
including Parliament, the executive, and
the courts, as well as the fundamental rights of every person which
must be respected in
exercising such powers.
Thus
Makwanyanes , supra, is clear authority that in
South Africa Parliamentary proceedings are admissible as evidence of
the meaning of the Constitution.
The
recently declared invalid General Laws Amendment Act expressly
provided for the admissibility of Parliamentary debates in
interpreting statutes. The above act is not law. I only mention
it as an indicator of the current thinking that courts should
have
regard to Parliamentary debates in interpreting statutes. In these
proceedings we are concerned with the interpretation of
the
Constitution. I therefore intend to follow Makwanyanes ,
supra,and hold that the Third Schedule to the Constitution must
not be construed in isolation, but in its context, which includes the
history and the background of the Constitution, and other provisions
of the Constitution itself: perCHASKALSON P at p 403G-H.
What then is the
history and the background to Schedule 3 of the Constitution?
It is very clear
from successive Electoral Acts that in Rhodesia and thereafter
Zimbabwe the right to vote was and is accorded
to citizens only.
The right to vote has always been lost upon loss of citizenship.
The need to extend the vote to a particular
class of permanent
residents was recognised for the first time in 1979 upon the
introduction of a Constitution that extended the
franchise to every
adult citizen.
The
Electoral Act [Chapter 5] which came into effect on 6 December
1969 and has since been repealed provided that only citizens of the
age of twenty-one had the
right to vote. Section 17 of that Act
provided as follows:
17.
(1) Subject to the provisions of this Act, every person who
is a citizen of
Rhodesia; and
has attained the
age of twenty-one years; and
shall be entitled to
be registered in a constituency as a voter.
Residents, permanent
or otherwise, had no right to vote under this Act.
In terms of
section 28(2) of the same Act a voter was disenfranchised upon loss
of citizenship. The section reads:-
28.2 A person
shall be disqualified for registration as a voter if he ceases to be
a citizen of Rhodesia, whether because of renunciation
of
citizenship, deprivation of citizenship or loss of citizenship, in
terms of any enactment in force in Rhodesia relating to citizenship
of Rhodesia.
The
Electoral Act [Chapter 5] was repealed and replaced by the
Electoral Act 14 of 1979. Act 14/79 was necessitated by the
introduction of the Zimbabwe-Rhodesia
Constitution which extended the
franchise to all adult persons.
Act 14/79 was
enacted in terms of section 17 of the Zimbabwe-Rhodesia Constitution
which reads:
17. A law of the
Legislature shall, subject to the other provisions of this
Constitution, make provision for the election of Senators
and of
members of the House of Assembly for the purposes of this
Constitution.
The Electoral Act
14/79 made it clear that only citizens were entitled to vote and
those who lost citizenship also lost the right
to vote. In this
regard section 19 of that Act provided as follows:-
19. (1)
Subject to the provisions of this Act, every person who
is a citizen of
Zimbabwe Rhodesia; and
has attained the
age of eighteen years; and
has the requisite
residence qualification in terms of section twenty; and
is not disqualified
under this Act;
shall be entitled to
be registered in a constituency as a voter.
The same Act also
provided for the loss of the right to vote upon loss of citizenship.
See section 21(2) of that Act which reads:-
21. (2) A
person shall be disqualified for registration as a voter if he ceases
to be a citizen of Zimbabwe Rhodesia, whether
because of renunciation
of citizenship, deprivation of citizenship or loss of citizenship, in
terms of any enactment in force in
Zimbabwe Rhodesia relating to
citizenship of Zimbabwe Rhodesia.
Permanent
residence was not recognised in the Act as a basis for acquiring the
right to vote. It was however recognised at the
time that Act 14/79
was enacted that it was desirable to enfranchise a certain class of
permanent residents. This class of residents
was made up of people
who were eligible to be registered as citizens but had not applied
for citizenship and consequently were not
citizens. It was felt
that these people who had all the qualifications for citizenship
should be enfranchised for the particular
election that was due in
March 1979. This was, as I have already stated, the first election
on the basis of adult suffrage. It
was considered desirable that
these persons who were not citizens but eligible for citizenship be
allowed to vote.
In this regard
what Mr Walker, the then Minister in the Rhodesian government
responsible for steering the Bill through Parliament,
had to say in
his second reading speech is instructive. He said:-
Ordinarily,
a person must be a citizen of this country before he is entitled to
be registered as a voter. However, as hon. Members well know,
there are in Rhodesia many thousands of foreign Africans who have
come to this country to
find employment and are now settled here,
having been resident in the country for many years. These people
have not, in the main,
taken advantage of the provisions of the
Citizenship Act which entitle them to apply for registration as
citizens. With the extension
of the franchise to all persons over
eighteen, it will not be possible, because of the numbers involved,
to handle thousands of applications
for registration as a citizen.
Accordingly, it has been decided that, for the purposes of the
first general election, any person who is not a citizen, but who is
ordinarily resident in Rhodesia, will be permitted to vote if he is
qualified to be registered as a citizen and is otherwise qualified
to
be registered as a voter. This concession will, however, only
apply for the first election because, after that, the persons
concerned will be expected to apply
to be registered as citizens and
then to become registered voters."
(2808 Hansard 20
February 1979) (the emphasis is mine)
It is quite clear
from the above remarks that the extension of the vote was intended to
be on a one off basis, the first election
after the introduction of
adult suffrage and for the reasons stated.
In order to cater
for this category of persons, who were not citizens but Parliament
wished to enfranchise provision was made in
the Transitional
Provisions set out in Chapter XI of the Act to allow such people to
vote. In particular the proviso to section
175 (10)(a) of the
Electoral Act provided:
(10) At the
election -
any person who is
entitled to be registered as a voter for the Common Roll may vote in
any electoral district and shall be entitled
to cast at the election
one vote for one registered party only:
Provided
that in the case of the first general election referred toin
paragraph a) of subsection (1) of section one hundred and
sixty-sevenany person who is entitled to apply for
registration as a citizen of Rhodesia and, if he were so registered
as a citizen, would be entitled to be registered
as a voter on the
Common Rollshall be entitled to cast at the election one vote for
one registered party only. (emphasis is mine)
The intended
beneficiaries did not register as citizens as expected and various
statutory instruments were enacted to enable them
to vote every time
there was an election until 1990 when the legislature sought to
resolve the issue once and for all. The legislature
sought to
resolve the issue by amending the Third Schedule through the
introduction of the present paragraph 3(1) of the Third Schedule.
The amendment was introduced by Act No 30/1990. Again the remarks
of the then Minister of Justice, the Honourable Mr Mnangagwa,
as he
steered the Bill through Parliament are instructive:-
With
regards certain aspects of his question, since 1985, I think my
brother the hon. Member, Mr Bhebhe, will remember that we allowed
during the 1985 general election all those permanent
residentswho have been in this country for long periods, to vote
even if they had not taken citizenshipof this country, and so
on. A Statutory Instrument made a provision for them to vote and
after the election they could easily apply
for citizenship. When
the 1990 general elections came, we discovered that none of them, not
all of them, the majority of them had
not exercised the privilege we
had granted them by the instrument of either 1980 or 1985. So again
this year, we allowed them to
vote. We are saying those who have
been allowed to vote in those two general elections, that is in 1980
and 1985 and are still permanent
residents in this country shall be
allowed henceforth to vote. We shall not seek any further law
each time there is a general election. I hope this satisfies the
hon. Member. (3044 Hansard,
12 December 1990) (the emphasis is
mine)
The elections in
1979 were held in terms of the transitional arrangements referred
above. The 1980 elections were also conducted
in terms of a British
Order-in-Council, the Southern Rhodesia (Constitution of
Zimbabwe)(Elections and Appointments) Order 1979 which
provided for
essentially the same qualifications for voting as was the case in the
previous elections of 1979. Section 175(10)(a)
of the Electoral Act
allowing non-citizens to vote was repealed by Act 13 of 1985 thus
effectively disenfranchising non-citizens.
There were also other
enactments that attempted to enfranchise the aliens eligible for
citizenship but had failed to register as
citizens for one reason or
other. Act 30/90 was clearly intended to resolve that issue once
and for all.
It is clear from
the Third Schedule that a citizen loses his right to vote upon his
loss of citizenship. This has been the case
in successive Electoral
Acts and paragraph 3(1) of the Third Schedule does not seek to alter
that principle.
In
the result I am satisfied that a person who was a citizen as of the
31stDecember 1985 loses his right to vote upon ceasing to
be a citizen by operation of the law, namely, paragraph 3(3) of the
Third Schedule.
I have already held that the common roll for the
election of a President in terms of section 28(2) of the Constitution
is the sum
total of the various constituency rolls. A constituency
roll must be taken to mean one and the same thing as the electoral
roll
for a constituency referred in the Third Schedule. To hold
otherwise would be absurd. The loss of vote or disenfranchisement
upon cessation of citizenship is a loss by operation of law, namely,
paragraph (3)(3)(a) of the Third Schedule.
Where the loss of
citizenship is common cause, the consequent loss of the right to vote
is by operation of the law making the procedures
set out in section
25 of the Act superfluous or non-applicable. In such cases the
constituency registrar, or anybody else for that
matter, cannot
reverse such a loss nor does he have any discretion in the matter.
The law has taken its course, the voter has lost
his or her right to
vote by operation of the law and the loss cannot be revived in any
way.
IS
RESIDENCE IN A PARTICULAR CONSTITUENCY A REQUIREMENT FOR
REGISTRATION ON A COMMON ROLL FOR THE ELECTION OF
THE
PRESIDENT?
The respondent, in his
cross-appeal, contends that the learned judge in the court a
quo erred in holding
that it was in law a requirement for registration on the common roll
for the purposes of a Presidential election
for a person to prove his
residence in a particular constituency. This issue of course raises
the question of what constitutes
the common roll for the purposes of
electing a President. Put differently, is the common roll referred
to in section 28(2) of the
Constitution separate and distinct from
the sum total of the constituency rolls?
In the court a
quo the respondent
argued that for any person to qualify to be registered on the common
roll he or she must be eighteen years of age,
a citizen of Zimbabwe
or have been a permanent resident of Zimbabwe as at 31 December 1985.
The respondent further argued that
residence qualification was
immaterial for one to be registered on the common roll referred to in
section 28(2). He submitted that
residence only becomes material or
relevant if one wished to be registered on the roll of a particular
constituency. Essentially
the same argument has been advanced in
this Court in support of the cross-appeal. That argument did not
find favour with the learned
judge in the court a
quo. The first
appellant argued to the contrary. The first appellant maintained
that residence in a particular constituency was a
necessary
qualification for enrolment on the common roll. This argument was
accepted by the learned judge. In this regard she
had this to say:-
Residence
qualification is immaterial for one to be registered on the common
roll. It only becomes relevant if one wishes to be
registered on
the roll of a particular constituency, so the argument proceeds.
In
terms of this argument, the common roll gives universal suffrage to
all adult citizens or permanent residents in Zimbabwe. Thus
a
homeless vagrant in the shopping malls of Harare who cannot prove
that he is resident in Harare by any of the conventional methods,
is
qualified to be on the common roll by virtue of his being a
Zimbabwean Citizen who is over 18 years of age.
The
second interpretation of the subparagraph that has been urged upon me
is to the effect that for any person to qualify to be on
the common
roll, he/she must first meet the residential qualifications of any
particular constituency. Thus still using the example
of the
homeless vagrant who sleeps in the shopping malls of Harare, if he
cannot qualify to be on any particular constituency roll
by virtue of
being of no fixed address, he cannot be registered on the common
roll. He therefore cannot vote for the President
even if it is
obvious that he resides in Zimbabwe, is over the age of 18 years of
age and is a Zimbabwean. According to this argument,
the Zimbabwean
Constitution does not grant universal suffrage to the citizens and
permanent residents, but limits the right to vote
for the President
only to those who can satisfy the residential requirements for a
particular constituency as provided for in the
Electoral Act.
The difficulty one has in
interpreting subparagraph (3) of the 3rd
Schedule is that it is in a Schedule that specifically provides for
the qualification of Members of Parliament and voters. This
reinforces the argument that the voters referred to herein can only
be voters to be registered on a constituency roll from which
Members
of Parliament are to be elected.
The crisp issue that then falls
before me for determination is what was the intention of the
legislature in enacting subparagraph
(3) of the 3rd
Schedule. Was it to grant universal suffrage to all adult citizens
and permanent residents without regard to where these are resident,
as argued by the applicant or to grant qualified suffrage as argued
by the respondents.
In
determining the intention of the legislature, I am to be guided by
the wording used in the enactment. I have to establish whether
or
not the interpretations urged upon me can be supported by the words
used in the subparagraph.
The applicants argument is
quite forceful but I am not persuaded that it finds a basis from the
wording of the enactment.
I
have been persuaded by the argument on behalf of the respondents.
Counsel for the respondents argues that the true meaning of
the
provisions of the subparagraph is that, to qualify to be on the
common roll, a claimant must show that, in addition to being
18 years
of age and a citizen or is regarded as a permanent resident since
1985, he or she meets the residence qualifications that
are
prescribed in the Electoral Law for inclusion on the electoral roll
of a particular constituency.
In my view, the wording of the
subparagraph (3) of the 3rd
Schedule is clear that all three criteria listed therein must be met
before one can be registered on the common roll.
In
my mind, for one to understand fully the provisions on who qualifies
to be registered on the common roll, it is necessary to make
reference to the provisions of the Electoral Act on the residential
qualifications of voters. This is to be found in section 20(1),
which provides:
in order to have the
requisite residence qualifications to be registered as a voter in a
particular constituency, a claimant must
be resident in that
constituency at the date of his claim:
Provided
that, if a claimant satisfied the Registrar-General that, for reasons
related to his place of origin, political affiliations
or otherwise,
it is appropriate for the claimant to be registered as a voter in a
constituency in which he is not resident, the claimant
may be
registered as a voter in that constituency.
The conclusion that I then come
to is that it was the intention of the legislature that for one to be
on the common roll, one has
to be:
resident
in a particular constituency or
satisfies the Registrar-General that for reasons related to his or
her place of origin, political affiliations or otherwise, it
is
appropriate for him/her to be registered in a constituency he/she is
not resident (in).
The practical effect of the above
in my view, is to grant suffrage to all adult citizens and persons
regarded as permanent residents
who can prove residence in a
particular constituency or can satisfy the Registrar-General that
they have a link with some other constituency
in Zimbabwe by reason
of place of origin, political affiliation or otherwise. Those
failing to prove residence in a particular
constituency and
links to any other constituency by reason of place of origin or
political affiliation or otherwise will fail to qualify to be on
the
common roll. This, to me, appears to have been the intention of the
legislature in enacting subparagraph 3 of Schedule 3 of
the
Constitution. (the emphasis is mine)
I agree with the reasoning and
the conclusion of the learned judge in this regard. The history of
the phrase common roll
clearly shows that it was never used by
Parliament to denote a consolidated roll, as it were, of the single
constituency of Zimbabwe
as contended for by the respondent. The
various provisions of the Constitution and the Electoral Act suggest
otherwise. Thus
as correctly submitted by Mr Majuru
the term common roll derives from pre-independence colonial
legislation which differentiated franchise between common roll
to denote the roll on which blacks were registered and white roll
on which whites were registered.
Section
3 of the Electoral Act 14/79 defined common roll thus:-
common
roll means the rolls kept by the constituency registrars in terms of
subsection (2) of section sixteen.
Section 16(2) provided that
Each constituency registrar shall have charge and custody of the
roll of voters on the common roll
for his common constituency.
Common roll constituency was defined in the Act as follows:
Common Roll Constituency
means a constituency referred to in
paragraph (a) of subsection (c) of section six be delimitated from
time to time in accordance
with the provision of Chapter 1. Thus
the history of the legislation clearly shows that the term common
roll referred
to the eighty common roll constituencies on which
blacks were registered. Since the abolition of the racially
segregated franchise
system it would appear to me that the term
common roll has referred to and means the one hundred and
twenty common roll constituencies.
This view is reinforced by the
various provisions in the Constitution which clearly link the term
common roll to the constituency.
Thus, section 38(1)(a) provides as
follows:-
38 (1) There
shall be a Parliament which, subject to the provisions of section
76(3b), shall consist of one hundred
and fifty members qualified in
accordance with Schedule 3 for election or appointment to Parliament,
of whom
one
hundred and twenty shall be elected by voters registered on the
common roll for one hundred
and twenty common roll constituencies;
(my emphasis)
The use of the
word common roll in the above section is inconsistent with one
common roll for one constituency of Zimbabwe
as a whole.
Section 60(2) and
(4)(c) and (e) of the Constitution refer to the term common roll.
They provide as follows:-
60 (2) Zimbabwe
shall be divided into one hundred and twenty common roll
constituencies.
60 (4) In dividing
Zimbabwe into constituencies the Delimitation Commission shall, in
respect of any area, give due consideration
to
the geographical
distribution of voters registered on the common roll.
(e)
in the case of any delimitation after the first delimitation
consequent upon an alteration in the number of constituencies,
existing
electoral boundaries and whenever it appears necessary to do
so in order to give effect to the provisions of this subsection, the
Commission may depart from the requirements of subsection (3), but in
no case to any greater extent than twenty per centummore or
less than the average number of registered voters in constituencies
on the common roll.
Schedule 3(3)(1)
also provides:-
(1) Subject
to the provisions of this paragraph and to such residence
qualifications as may be prescribed in the Electoral
Law for
inclusion on the electoral roll of a particular constituency, any
person who has attained the age of eighteen years and who
is a citizen of
Zimbabwe; or
since the 31st
December, 1985, has been regarded by virtue of a written law as
permanently resident in Zimbabwe;
shall
be qualified for registration as a voter on the common roll.
(emphasis is mine)
Section 101(2) of
the Act as read with section 28(4) of the Constitution provides that
if more than one candidate is nominated for
the Presidency a poll
shall be taken in each constituency for the election of a President.
It is quite clear
from the above statutory provisions that Parliament used the term
common roll to refer to the constituency common
rolls, and the common
roll referred to in section 28(2) of the Constitution is no more than
the sum total of 120 constituency common
rolls referred in the
various provisions of both the Constitution and the Electoral Act.
Thus, in my view, the learned judge was
correct in concluding that:-
the age of 18
citizenship or
permanent residence, and
residence in a
constituency
were necessary
qualifications for registration on the common roll referred to in
section 28(2) of the Constitution. On this basis
the cross-appeal
cannot succeed.
Finally the Court came to the
following conclusion:
That
the sum total of all the constituency rolls constitute the common
roll in terms of section 28(2) of the Constitution of Zimbabwe.
That the
court a
quo
had no legal basis for issuing the directive in paragraph 4 of its
order, directing the Registrar-General of Elections to make
adequate
arrangements for persons away from their constituencies on the
polling dates to cast their votes in other constituencies.
Consequently that directive is hereby set aside.
That it is in
law a requirement as the court a
quo
correctly held, for registration on the common roll for the purposes
of a Presidential election in Zimbabwe for a person to prove
his
residence in a particular constituency.
That, by a
majority of four to one, a person who ceases to be a citizen also
ceases to be a voter by operation of law namely paragraph
3(3) of
the Third Schedule of the Constitution of Zimbabwe. Consequently
paragraph 3 of the order of the court a
quo
is hereby set aside.
In the result the appeal is
allowed. The cross appeal is dismissed. There will be no order as
to costs.
CHEDA
JA: I agree
ZIYAMBI
JA: I agree
MALABA
JA: I agree
SANDURA JA: I have
read the judgment prepared by CHIDYAUSIKU CJ and agree with the
conclusions reached by him on
all issues except the interpretation of
the provisions of paras 3(1) and 3(3) of Schedule 3 of the
Constitution of Zimbabwe
(the Schedule). Paragraph 3(1)
reads:
Subject
to the provisions of this paragraph and to such residence
qualifications as may be prescribed in the Electoral Law for
inclusion
on the electoral roll of a particular constituency, any
person who has attained the age of eighteen years and who
(a) is
a citizen of Zimbabwe; or
(b) since the
31st December
1985 has been regarded by virtue of a written law as permanently
resident in Zimbabwe;
shall
be qualified for registration as a voter on the common roll.
In terms of subpara (1)(a),
a citizen of Zimbabwe who has attained the age of eighteen years and
who meets the residence qualifications
prescribed in the Electoral
Law is qualified for registration as a voter on the common roll.
That is clear and straightforward.
However,
in terms of subpara (1)(b), and subject to the residence
qualifications already referred to, any person who, since 31 December
1985, has been regarded by virtue of a written law as permanently
resident in Zimbabwe is qualified for registration as a voter on
the
common roll. Thus, for example, a person who lost the citizenship
of Zimbabwe in November or December 1985 on the ground that
he opted
to retain his foreign citizenship falls into this category, provided
that immediately before 1 December 1984 he was
ordinarily
resident in Zimbabwe and continues to be so resident.
Such a
person has, since 31 December 1985, been regarded as permanently
resident in Zimbabwe by virtue of s 9(8) of the
Citizenship of
Zimbabwe Act [Chapter 4:01],
which reads as follows:
Notwithstanding
anything to the contrary in any other enactment, but subject to
subsection (9), any person who was ordinarily
resident in
Zimbabwe immediately before the 1st December
1984, and who ceases to be a citizen of Zimbabwe in terms of
subsection (3),(4), (5), (6) or (7), shall be entitled,
on and after
the date on which he ceased to be a citizen of Zimbabwe
(a) to
reside in Zimbabwe; and
(b)
(d)
; and
(e) generally, to do all such
things as may be done by persons who are ordinarily resident in
Zimbabwe.
The
question which arises is whether a citizen of Zimbabwe, who qualified
for registration as a voter on the common roll in terms
of
subpara (1)(a), could also qualify for that registration in
terms of subpara (1)(b). I have no doubt in my mind that
he
could, provided he had, since 31 December 1985, been regarded by
virtue of a written law as permanently resident in Zimbabwe.
The
greater includes the lesser.
In
my view, a citizen of Zimbabwe who, since 31 December 1985, has
been ordinarily resident in Zimbabwe is regarded by virtue
of the
written law of Zimbabwe as having been permanently resident in
Zimbabwe since that date.
To
substantiate that statement, I would like to examine the position of
a foreigner who acquired the citizenship of Zimbabwe by
registration
before 1 December 1984. It is clear from the legislation in
force at the time that it was necessary for such
a foreigner to have
in his possession a permanent residence permit, issued in terms of
the relevant Immigration Act, before he applied
for the citizenship
of Zimbabwe by registration.
The
legislation then in force was the Citizenship of Rhodesia Act
[Chapter 23].
The relevant part of s 7 of that Act reads as follows:
7. (1) If
a person who is not a citizen of Rhodesia
(a) is
of full age and capacity; and
(b) makes application in the
manner prescribed; and
(c) is qualified to be registered
as a citizen of Rhodesia;
the
Minister may
authorize the registration of the person as a
citizen of Rhodesia.
(2) A
person who makes an application in terms of subsection (1) shall
be qualified to be registered as a citizen of Rhodesia
if he
satisfies the Minister that he
(a) was
lawfully admitted to Rhodesia for
permanent residence;
and
(b) is,
at the date of his application, ordinarily resident in Rhodesia; and
(c) has,
at the date of his application, been ordinarily resident in Rhodesia
(i) in the case of a person who
has not resided in Rhodesia before the date of his application for a
period of more than five years
or periods in the aggregate amounting
to more than five years, for a period immediately preceding the date
of his application of
not less than two years
;
(ii) in
the case of a person who has resided in Rhodesia before the date of
his application for a period of more than five years or
periods in
the aggregate amounting to more than five years, for a period
immediately preceding the date of his application of not
less than
six months
;
(d)
(e)
(f) intends,
after the grant of his application, to continue, subject to the
exigencies of his employment, to reside in Rhodesia.
(3)
(4) No period during which a
person who makes an application in terms of subsection (1)
resided in Rhodesia as a visitor or in
terms of a permit issued under
an enactment permitting temporary residence in Rhodesia in force
before, on or after the appointed
day shall be counted for the
purposes of subsection (2) as a period of residence in
Rhodesia. (the emphasis is mine)
It is clear
from the above provisions that a person applying for citizenship of
Rhodesia by registration had to satisfy the Minister
that, inter
alia,
he had been lawfully admitted to Rhodesia for permanent residence.
It is also clear that in computing the periods of residence
set out
in s 7(2)(c) any period during which the applicant had resided
in the country as a temporary resident was to be ignored.
What that
means is that the periods set out in s 7(2)(c) were periods
during which the applicant was in the country as a permanent
resident
in terms of a permanent residence permit issued in terms of the
relevant Immigration Act.
That
conclusion is confirmed by the personal details of the applicant
required on the application form. The relevant application
form is
set out in the Schedule to the Citizenship (Amendment) Regulations,
1971 (No. 2), published in Rhodesia Government Notice
No. 744
of 1971 at 998-999. The relevant part of the form reads as follows:
13. Date and place of lawful
entry into Rhodesia for permanent residence: Date: Place:
14. Permanent
Residence Permit: No.: Date of Issue: Place of Issue:
15.-17.
18. (a) Have you been ordinarily
resident in Rhodesia for an unbroken period of not less than two
years from the date of issue of
your Permanent Residence Permit to
the date of this application?
Yes
No ; or
(b) Have you been ordinarily
resident in Rhodesia for an unbroken period of not less than six
months from the date of issue of your
Permanent Residence Permit to
the date of this application?
Yes No ;
Similar information was required
from an applicant in terms of the Citizenship Regulations, 1963,
published in Southern Rhodesia Government
Notice No. 955 of
1963, the Citizenship Regulations, 1967, published in Rhodesia
Government Notice No. 609 of 1967, and
the Citizenship
Regulations, 1970, published in Rhodesia Government Notice No. 215
of 1970.
In
the circumstances, it follows that a person who acquired the
citizenship of Zimbabwe by registration before 1 December 1984,
for example, and who has been ordinarily resident in Zimbabwe since
he acquired that citizenship is regarded by virtue of a written
law
as having been permanently resident in Zimbabwe since 31 December
1985. He is, therefore, qualified for registration as
a voter on
the common roll, not only in terms of para 3(1)(a), but also in
terms of para 3(1)(b) of the Schedule.
In
my view, it cannot logically be argued that a person who was a
permanent resident of Zimbabwe before he acquired the citizenship
of
Zimbabwe by registration ceased to be a permanent resident of
Zimbabwe the moment he became a citizen of Zimbabwe. There is
no
such provision in our law.
I
now wish to examine the position of a citizen of Zimbabwe by birth.
His status as a permanent resident of Zimbabwe is much stronger
than
that of a citizen of Zimbabwe by registration. He does not require
a permanent residence permit in order to become a permanent
resident
of Zimbabwe.
His
domicile, i.e. the country in which he ordinarily resides and which
he regards as his permanent home, is Zimbabwe. This permanent
home
is his domicile of origin, i.e. the domicile which he received at
birth.
Our statute
law equates domicile with permanent residence. In this regard,
s 3(1) of the Immigration Act [Chapter 4:02]
(the Act) states as follows:
Subject
to this section, a person shall be regarded, for the purposes of this
Act, as being domiciled in a country if
(a) he
resides permanently in that country; or
(b) that country is the country
to which he returns as a permanent resident.
The section,
therefore, equates domicile with permanent residence. See Grant
et Uxor v The Chief Immigration Officer
1976 (1) RLR 268 (AD) at 269D.
What
that means is that, in terms of s 3(1) of the Act, a person
domiciled in Zimbabwe either resides permanently in Zimbabwe
(i.e. as
a permanent resident) or Zimbabwe is the country to which he returns
as a permanent resident.
In
the circumstances, it follows that a citizen of Zimbabwe by birth
who, since 31 December 1985, has been ordinarily resident
in
Zimbabwe, is regarded by virtue of a written law as having been
permanently resident in Zimbabwe since 31 December 1985.
He
is, therefore, qualified for registration as a voter on the common
roll, not only in terms of para 3(1)(a) but also in
terms of
para 3(1)(b) of the Schedule.
If
it had been the intention of the legislature that subpara (1)(b)
should only apply to persons who were not citizens of Zimbabwe
it
would have said so, and para 3(1) would have been drafted so
that it read as follows:
Subject
to the provisions of this paragraph and to such residence
qualifications as may be prescribed in the Electoral Law for
inclusion
on the electoral roll of a particular constituency, any
person who has attained the age of eighteen years and who
(a) is
a citizen of Zimbabwe; or
(b) not being
a citizen of Zimbabwe, has since the 31st December
1985 been regarded by virtue of a written law as permanently resident
in Zimbabwe;
shall
be qualified for registration as a voter on the common roll.
In
my view, the fact that subpara (1)(b) of the Schedule was not
drafted in the form shown above is significant. Regardless
of what
was said in Parliament when the constitutional amendment was debated,
I am satisfied that subpara (1)(b) includes citizens
of Zimbabwe
who have been ordinarily resident in Zimbabwe since 31 December
1985. They are certainly not excluded by the wording
of the
subparagraph according to the plain meaning of the words used.
Finally
I wish to examine the provisions of para 3(3) of the Schedule.
The paragraph reads as follows:
Any
person who is registered on the electoral roll of a constituency
shall be entitled to vote at an election which is held for that
constituency unless
(a) he has then ceased to be a
citizen of Zimbabwe; or
(b) he
is then, in accordance with the provisions of subparagraph (2),
disqualified for registration; or
(c) in
the case of a person who was registered on the electoral roll by
virtue of the qualifications referred to in subparagraph (1)(b),
he has ceased to be so qualified.
In
my view, a citizen of Zimbabwe who is registered as a voter on the
common roll, and who qualifies for such registration in terms
of both
para 3(1)(a) and para 3(1)(b) of the Schedule, would not
lose the right to vote merely because he has lost one
of the two
grounds on which he qualified for registration as a voter.
In
other words, if such a registered voter ceased to be a citizen of
Zimbabwe, for whatever reason, but remained qualified for
registration
as a voter in terms of para 3(1)(b) of the
Schedule, he would not lose the right to vote. He would only lose
that right if
he ceased to be a citizen of Zimbabwe and no longer
qualified for registration as a voter in terms of para 3(1)(b)
of the Schedule.
That,
in my view, is the correct interpretation of the provisions of
para 3(3) of the Schedule.
The learned
judge in the court a quo,
therefore, correctly determined the issue. It follows that the
appeal against para 3 of the order of the court a quo
is devoid of merit and must be dismissed.
Civil
Division of the Attorney-Generals Office, appellants legal
practitioners
Gill,
Godlonton & Gerrans, respondent's legal practitioners