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The right to vote: Where do citizens in the diaspora stand? - Part 2

8th April 2013

By: In On Africa IOA

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Part 1 of this article established that citizens in the diaspora still reserve the right to the franchise of voting. This paper follows on as a political survey, discussing the challenges that countries experience in implementing diaspora voting, and possible remedies. It also examines how Botswana, Mozambique and Senegal, countries that are considered to be democracy bearers in Africa, have implemented the right to vote for the diaspora.

This is followed by an examination of two of Africa’s aspiring democracies, Kenya and Zimbabwe. These two countries recently wrote new constitutions (Kenya’s has been enacted, while the Zimbabwean draft underwent a referendum in March 2013). Have these aspiring democracies utilised the opportunity provided by the exercise of constitution-making to ensure that every citizen enjoys the right to vote? Establishing the answer to this question will be seen to have interesting implications, not least because these constitution-making processes involved political parties that were previously in the opposition.

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Challenges to the diaspora vote and possible solutions

The question of diaspora voting is usually presented as a matter of principle, based on the universality of the right to vote. In reality, however, the practice of such a right is enabled by legislation and procedures put in place by politicians.(2) Politicians, by definition, are partisan individuals whose first interests are for the party they represent. The fact that such a right has to be made possible by politicians who will first consider the impact of such a law on the future of the party leads to legislators, more often than not, disabling that right for the diaspora. Such disablement is premised on the untested belief that the diaspora will mostly vote for the opposition parties (in cases where the ruling party is the reason why such people are in the diaspora). But, as will be seen in the cases of Mozambique and Zimbabwe below, it is in fact opposition parties that have been campaigning for the disabling of the voting franchise to the diaspora. To this end:

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It is also the case that international migrants are a potentially important political force whose votes can in many cases significantly affect election results. Political parties, sitting governments and oppositions are therefore likely to have different views on participation in the elections. If large groups of citizens have left the country for political reasons, it can be assumed that the ruling party will not favour extending voting rights to these groups.(3)

Most opponents of external voting argue that diasporas lack the same access to information as local voters. The argument further extends to assume that external voters do not bear the same political consequences as those who reside within the country.(4) The insinuation in such arguments is that external citizens are likely to vote from an uninformed point of view and will therefore vote unwisely. In a globalised world, connected by the internet, social networking and electronic media, such arguments can no longer hold. People are kept abreast of news in real time and information dissemination is no longer a challenge. Diasporas, in this way, retain a connection with their home country.

Botswana and the diaspora vote: Sustaining democracy?

In 1997, Botswana introduced external voting as part of a package of constitutional and electoral reforms. This was mainly because of a long period of political advocacy by opposition parties and civil society, as well as the influence of political changes and reforms that had happened in neighbouring countries such as Malawi, Mozambique, Namibia and South Africa. These countries had introduced forms of external voting and Botswana, as a long established democracy, felt obliged to do the same. P. Molutsi captures some of the reforms:

The constitutional Amendment Act of 1997, Section 4, subsection (a) reduced the voting age from 21 to 18, while the Electoral Act section 5(3) amendment of 1997 permitted citizens resident outside the country to vote externally. Other major reforms made at the same time included the establishment of the Independent Electoral Commission (IEC) and the introduction of a limit to the term of office of the president to two terms of five years each.(5)

Diaspora voting regulations were introduced because of concerns raised by opposition parties in Botswana who felt that citizens in the diaspora were being denied their democratic right to vote and it was unfair to expect them to come back home during voting time to cast their vote. Since presidential elections in Botswana are indirect (voted by parliamentarians), all citizens in the diaspora of over 18 years of age are permitted to vote every five years for Members of Parliament.(6)

Diaspora voting procedures mirror those at home. Eligible voters are required to register at the Botswanan embassies or high commissions abroad. External registration is normally conducted by embassy staff under the guidance and supervision of the IEC. The head in each country is responsible for keeping the register of external voters and updating it.

Botswana citizens in the diaspora first exercised the right to vote in the 1999 legislative elections. External voting normally takes place two weeks before the general election at home. The ballot papers are then brought to the IEC within a period of four days after the voting. In the presence of political parties, votes are counted and then allocated to relevant constituencies based on the voter’s choice. No complaints have been registered by any political party in terms of the authenticity of votes from the diaspora. However, it is becoming a concern that voter turnout for both the 1999 and 2004 election was not that impressive and that opposition parties in Botswana are also becoming lukewarm about the overall impact of the diaspora vote.(7)

Mozambique and the right to vote for the diaspora: A process worth emulating?

The provisions of the 1990 Mozambican Constitution, revised in 2004, provides for all Mozambicans living in the diaspora to vote in their countries of residence. The constitution further provides for two parliamentary seats out of a total of 250 seats to be allocated by external citizens. One is for citizens in Africa, while the other one is for the rest of the world. The reasoning behind this provision is to cater for the rights of Mozambican migrants.(8) For practical reasons, and as is the case in most countries that permit external voting, the right for the diaspora to vote hinges on certain conditions. These conditions include:

Both the Voter Registration Law and the General Elections Law emphasise that Mozambican citizens living abroad have the right to register as electors and vote only if and when the National Electoral Commission (NEC) considers it possible. … Article 9 of Law no. 18/2002 of 10 October 2002, on the institutionalisation of the systematic electoral registration for elections and referendums in Mozambique, states that: (a) electoral registration will be conducted both within the national territory and abroad; and (b) the geographical boundaries and locations for electoral registration are (i) in the national territory: the districts of Maputo city; and (ii) abroad: at diplomatic or consular missions.

For voters to be registered and for elections to be held abroad, the NEC must confirm that the material conditions and the control, follow-up, and monitoring mechanisms are in place in such external electoral districts. Even though the constitution permitted external voting from 1990, fierce opposition from the opposition party, Mozambican National Resistance (RENAMO), and low turnout for voter registration prevented this from happening. In 2004, the NEC (which was made up of 20 members, 10 from the ruling party, Mozambican Liberation Front (FRELIMO) and eight from the opposition parties led by RENAMO) voted in favour of allowing external registration for the diaspora.

As a result, 45,865 voters in Africa and 1,101 in the rest of the world were permitted to register for the vote. In December 2004, these citizens cast their votes and the turnout was 57% for those in Africa and 64% in the rest of the world.(9)

Senegal and external voting: Responsible citizenship

In 1993, Senegal convened a national conference that was meant to reform and democratise the electoral process. A set of political reforms were introduced, one of which was to put in place a system of external voting for both presidential, as well as parliamentary elections. It should be noted that this process was initiated by Senegalese citizens in the diaspora, who realised the potential power they wielded because of the amount of economic benefit they were bringing into Senegal. Many rural development programmes that the government was unable to fund came to fruition because of remittances from the diaspora.(10) Hence it became very difficult for the authorities to continue to ignore such a community:

Most overseas Senegalese use modern technology such as internet to maintain close contact with their extended families and thereby potentially exert a disproportionate influence on their networks of relations in Senegal. The government felt that providing them with an outlet in the electoral politics arena would act as a safety valve and would entail only limited costs and risks for the regime. Opposition parties saw the inclusion of external votes as an opportunity to expand their influence and revenue sources. Hence it was in the interests of all the parties to concede the vote to overseas Senegalese.(11)

Legal provisions for electoral processes in Senegal can be modified by the legislature without the need to tamper with the constitution. All Senegalese who are in the diaspora and older than 18 years, who are not active members of the armed forces and public service, are technically eligible to vote. However, for logistical purposes, such people must meet additional requirements to be able to exercise the franchise. Firstly, the law requires that there is official diplomatic representation in the country of residence. Secondly, the country of residence must provide formal permission for such elections to be conducted on its territory. Thirdly, voting will only happen in countries where registered voters reach at least a figure of 500 when registration officially closes.(12) These clearly are not difficult conditions to meet for a community that strongly want to be included in the affairs of its country. For the 2000 presidential elections in Senegal, 15 countries qualified to host a diaspora vote, with nine of them in Africa.(13) In these elections, various systems to promote transparency and fairness were observed, with all interested parties being involved.

Aspiring democracies: Is this the way to go?

Kenya

In March 2008, after a disputed and bloody election in 2007, Kenya constituted an inclusive government (IG) which was made up of the former ruling party and former opposition parties. One of the mandates of the IG was to begin a process of constitution-making which was to culminate in a referendum to approve or reject the draft constitution. Such a process did take place and, in 2010, the draft was enacted to become the country’s new constitution. As agreed during the start of the IG, the acceptance of the constitutional draft would be the final milestone towards the holding of a national election to be held under the provisions of the new constitution.(14)

An important question to ask is what this new constitution says about the diaspora vote? Indeed, and as expected, the new constitution did recognise that there are a substantial number of Kenyan citizens in the diaspora and such citizens have the right to vote in elections that happen in Kenya. This is captured in Chapter 7, Part 82 (1e), which states that “parliament shall enact legislation to provide for the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.”(15)

Without delving deeper into analysing the strengths and weaknesses of the constitution, a single glance at this clause reveals a possibility of denying the Kenyan diaspora the right to vote - the subjectivity and vagueness of ‘progressive realisation’. In November 2011, the Kenyan Cabinet made the decision to deny the diaspora the right to vote. The reasons given were that it was not possible to provide for such a process due to logistical, financial, and time constraints. This government decision was upheld by a ruling of the High Court in mid-November 2012 which found that, though the right is guaranteed constitutionally, it is not absolute and cannot be realised instantaneously, but progressively.(16) As such, avoiding the cumbersome and costly task of organising a diaspora vote is easy for a government that is able to prove to the courts that it has done something to facilitate external voting and is progressively attempting to actualise it.

Part 1 of this paper asserted that the right to vote is a universal right (existing whether or not legislation permits it). In the Kenyan situation we see legislation actively curtailing that right of citizens in the diaspora. Current legislation, through the constitutional clause quoted above, suggests that the realisation of the right to vote can be postponed or mortgaged for the convenience of the state. It can also be concluded that the constitution-making process in Kenya failed to utilise that opportunity to ensure that this universal right to vote is not impeded. 

Zimbabwe

Like Kenya, Zimbabwe has been under an IG since 2009. Similarly, this situation facilitated the writing of a new constitution. The drafting process has just been completed and the product is set to go to a referendum in 2013.(17) The Draft Constitution is widely expected to be adopted, since all major political parties that make up the IG were involved in drafting the constitution and are also campaigning for a ‘yes’ vote.(18)

The current Zimbabwean laws permit external voting for Zimbabweans through postal voting. However, that right is limited to citizens that are outside the country while in the service of the state, such as diplomats, civil servants and members of the armed forces. Zimbabwe has an estimated 3.5 million citizens in the diaspora,(19) and extending that right to only those in service of the state clearly disenfranchises millions of Zimbabweans. This aspect of the political economy attracted a lot of interest from civil society during the drafting of the constitution. Hence it is important to examine where the new constitution stands in terms of the diaspora vote, even before it is enacted.

The issue of elections in Zimbabwe is provided for in Chapter 7, Part 1 and Part 2 of the final draft constitution.(20) Unlike the new Kenyan Constitution, the Zimbabwean draft does not specify the position of the diaspora. Despite exhaustively covering the issue of citizenship (Chapter 3) and that of human rights and equality (Declaration of Rights, Chapter 4),(21) the drafters of the constitution opted for silence when it came to extending those rights to the diaspora:

First, the right to vote in the Bill of Rights, provided for in Clause 4.24 (3) is not absolute but conditional since it is written “subject to this Constitution”. The use of these words, “subject to this Constitution” as a preface to the right to vote is conditional upon other provisions in the constitution. In other words it is not an absolute right and may be limited. Yet when one considers that the right to vote was at the core of the struggle for independence, and adult suffrage is such a universally recognised right, one would expect it to be one of the most absolute rights from which there should be no derogation whatsoever.(22)

Further to this is the residence qualification that may be included in the electoral law. The Fourth Schedule of the Draft Constitution states in Clause 1(2) that an electoral law may prescribe additional residential requirements to guide the registration of voters.(23) With such a right delegated to the whims of parliament, it is likely that the interests of the parties will take precedence over those of the citizens.

With the constitution-making process being spearheaded by members of different political parties, and former opposition members being in the majority, there is an expectation that the draft will be sympathetic to voters in the diaspora. This is a result of the popular belief that the majority of the diaspora is sympathetic to the opposition. It is surprising, therefore, to discover that the opposition was rather involved in the blocking of the diaspora vote.(24)

As in the Kenyan situation, the authorities in Zimbabwe did not take the opportunity provided by the exercise of drafting a new constitution to ensure that voters in the diaspora are not disenfranchised.

Concluding remarks

The ability to vote and hence determine one’s future is a universal right that human beings should be able to exercise. However, as has been demonstrated in this paper, such a right has been disabled for diaspora citizens of a number of African countries. Such countries have pursued legalistic means in order to deny universal suffrage with an air of legitimacy. Clearly, in order to ensure that citizens in the diaspora exercise the right to vote, the starting point should be to create an enabling environment that will not be manipulated by the authorities to suit their individual and partisan needs. This will require civil society to be active in demanding not only the recognition of that right in legislation, but also its exercise in regions where citizens are largely present. Once that right has been granted, citizens in the diaspora should actually take time to exercise it so that authorities do not use voter apathy as an excuse to exclude the diaspora.

A synopsis of countries such as Botswana, Mozambique and Senegal has shown that it is possible to accord the diaspora the right to vote. If systems are put in place, all the challenges that opponents posit can be overcome. It is therefore very unfortunate that countries such as Kenya and Zimbabwe, that had the opportunity to correct this imbalance, did not utilise that chance. But either way, the right to vote for all citizens, regardless of someone’s domiciliary, remains an absolute right.

Written by Zenzo Moyo (1)

NOTES:

(1) Contact Zenzo Moyo through Consultancy Africa Intelligence’s Rights in Focus Unit (rights.focus@consultancyafrica.com). This CAI paper was developed with the assistance of Laura Clarke and was edited by Kate Morgan.
(2) Sundberg, A., ‘The history and politics of diaspora voting in home country elections’, Overseas Vote Foundation, 2007, https://www.overseasvotefoundation.org.
(3) Braun, N. and Gratschew, M., 2007. “Introduction”, in Ellis, A., et al., Voting from Abroad: The International IDEA Handbook. International Institute for Democracy and Electoral Assistance (IDEA): Stockholm.
(4) Russell, M., ‘Diaspora engagement through representation’, Diaspora Matters, 2011, http://diasporamatters.com.
(5) Molutsi, P., 2007. “Botswana: Disappointing results of external voting”, in Ellis, A., et al., Voting from Abroad: The International IDEA Handbook. International Institute for Democracy and Electoral Assistance (IDEA): Stockholm.
(6) Ibid.
(7) Ibid.
(8) Nanitelamio, S.P., 2007. “Mozambique: A system that is too subjective?”, in Ellis, A., et al., Voting from Abroad: The International IDEA Handbook. International Institute for Democracy and Electoral Assistance (IDEA): Stockholm.
(9) Ibid.
(10) Vengroff, R., 2007. “Senegal: A significant external electorate”, in Ellis, A., et al., Voting from Abroad: The International IDEA Handbook. International Institute for Democracy and Electoral Assistance (IDEA): Stockholm.
(11) Ibid.
(12) Ibid.
(13) Ibid.
(14) Mapuva, J., 2010. Government of national unity (GNU) as a conflict prevention strategy: Case of Zimbabwe and Kenya. Journal of Sustainable Development in Africa, 12(6), pp. 247-263.
(15) ‘Constitution of Kenya’, 2010, The Republic of Kenya, http://www.kenyaembassy.com..
(16) ‘Kenyans in the diaspora will not vote in the 2013 elections, says government’, Mwakilishi, 27 November 2012, http://www.mwakilishi.com.
(17) ‘Mugabe sets date for crucial referendum’, ABC News, 15 February 2013, http://www.abc.net.au.
(18) Ibid.
(19) Tungwarara, O., 2007. “Zimbabwe: Highly restrictive provisions”, in Ellis, A., et al., Voting from Abroad: The International IDEA Handbook. International Institute for Democracy and Electoral Assistance (IDEA): Stockholm.
(20) ‘Zimbabwe Draft Constitution’, 2013, Republic of Zimbabwe, http://www.copac.org.zw.
(21) Ibid.
(22) Magaisa, A.T., ‘Do Zimbabweans in the diaspora have the right to vote in elections?’, New Zimbabwe Constitution, 24 July 2012, http://newzimbabweconstitution.wordpress.com.
(23) ‘Zimbabwe Draft Constitution’, 2013, Republic of Zimbabwe, http://www.copac.org.zw.
(24) ‘MDC-T admits blocking the diaspora vote’, New Zimbabwe, 17 September 2012, http://www.newzimbabwe.com.

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