Judgment No. CCZ 4/18 21
Case No. CCZ 3/18
Once it is found, as I have done, that the residency requirements under s 23 are
not unconstitutional in that they do not interfere with the constituency-based nature of our
electoral system, it must follow that there is no obligation on the part of the Zimbabwe Electoral
Commission to set up polling stations outside the country. The same point has been stressed
before, by this Court. In Registrar General of Elections & Ors v Morgan Tsvangirai 2002 (1)
ZLR (S) the court found that electoral authorities are not under a legal duty to provide
machinery in foreign countries to record votes of Zimbabwean citizens registered as voters who
live there and are unable to attend personally at polling stations in their constituencies on
polling day. The exception was the category of persons specified under s 72 of the Act. The
applicants have not challenged the correctness of that judgment.
In the Bukaibenyu judgment at page 9, MALABA DCJ (as he then was) said in
part:
“The Constitution did not place an obligation upon the State to make arrangements for
voters who for personal reasons were unable to attend at the polling stations to vote.”
I find that the applicants have not established, as correctly argued for the
respondents, that they are in a similar position as the persons referred to in ss 72 and 73 of the
Act. They have not argued that they remain ordinarily resident in their constituencies in
Zimbabwe. As already determined, residency in a constituency located in Zimbabwe (actual
or deemed) is a sine qua non for eligibility to vote in national elections.
It may be observed in this respect that residency requirements are not peculiar to
Zimbabwe, as other jurisdictions have had occasion to address the same issue. The Court of
Appeal for Ontario (Canada) dealt with the rationale for and the constitutionality of, residency
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