Judgment No. CCZ 4/18 11
Case No. CCZ 3/18
(5)
The election of a President and Vice-Presidents must take place concurrently
with every general election of members of Parliament, provincial councils and
local authorities.” (my emphasis)
In terms of s 92 (4), the qualifications for registration as a voter and voting are
prescribed in the 4th Schedule to the Constitution. This is the very same Schedule that speaks
to a constituency-based election and directs one to s 23 of the Electoral Act. One significant
provision of s 92 is para (3) which makes reference to registered voters ‘throughout
Zimbabwe’. This phrase delineates geographical parameters for the Presidential election and
since the election is held concurrently with the rest of the harmonised elections, it (the phrase)
is in perfect harmony with s 160 of the Constitution which relates to electoral boundaries. The
clear meaning is that the Presidential election is to be conducted in Zimbabwe and in order for
a person to participate in it, he has to be in Zimbabwe or deemed so, and, also, must be
registered as a voter in terms of the 4th Schedule to the Constitution.
When the foregoing is considered, it becomes evident that the contention made for
the applicants that the right to vote given under s 67 (3) of the Constitution does not depend on
anything other than citizenship and age, is not legally sustainable. While it is in some cases
correct, as contended for the applicants, that a right accorded in the Constitution cannot be
attenuated by legislation, in casu, it is the Constitution itself which appears to attenuate in a
later provision, a right that it accords in an earlier one. Further, the argument by Mr Mpofu that
in terms of s 35(3) of the Constitution, the state is ‘obliged’ to follow its citizens wherever they
are in the world to enable them to vote, and that its obligation to do so is not informed by the
location of the citizen but his being a citizen, finds no support in the Constitution. It is important
to note that while a right granted by the Constitution may not always be limited through