analysisBy Richard Lee
It is a decision that could potentially change the electoral game in Zimbabwe.
In a landmark ruling, the African Commission on Human and People's Rights (ACHPR) has passed a provisional measure directing the government to allow exiled Zimbabweans and those living abroad to vote in the country's referendum this Saturday and - much more critically - in the general elections tentatively scheduled for July.
It will come as a severe blow to President Mugabe and his ZANU-PF party, who have long fought to ensure that the large number of Zimbabweans who left the country in the past decade for political and economic reasons (up to 3 million by some estimates) cannot vote - knowing that the majority of them are likely to side with the MDC.
It will also be very difficult for ZANU to counter the decision since its normal rhetoric - that any criticism is part of a western, neo-colonial plot - cannot be rolled out in this case.
That leaves Mugabe and ZANU with two options - to implement the ruling as they are legally obliged to do or ignore the ACHPR and highlight once again their contempt for international law and treaties (and the rights of Zimbabweans).
"Being a party to the African Charter, Zimbabwe is bound by the ACHPR's decisions," said a statement from Zimbabwe Lawyers for Human Rights (ZLHR). "However, the organ lacks the force to implement its decisions, a situation exploited by countries such as Zimbabwe to disregard rulings."
In passing its provisional measures, the ACHPR said the complaint filed by ZLHR on behalf of five Zimbabweans - Gabriel Shumba, Kumbirai Tasuwa Muchemwa, Gilbert Chamunorwa, Diana Zimbudzana and Solomon Sairos Chikohwero - revealed "prima facie violation of the African Charter".
The ACHPR directed the government to provide all eligible voters, including the five complainants, with the same voting facilities it affords to Zimbabweans working abroad in the service of the government and to take measures to give effect to its obligations under the African Charter on Human and Peoples' Rights in accordance with Article 1 of the African Charter, including in areas of free participation in government.
In their complaint letter, Shumba, Muchemwa, Chamunorwa, Zimbudzana and Chikohwero, who are all Zimbabweans living in South Africa protested at being denied their right to vote in the forthcoming referendum and general election and alleged that the government had violated a number of Articles of the African Charter.
The five Zimbabweans say although they work in South Africa, they intend to return home in the future as they do not have citizenship or permanent resident status in that country. They also send money to relatives in Zimbabwe from time to time.
The five felt hard done, particularly because they were allowed by Zimbabwean authorities to input into the constitution making process through participating in the public consultations, where they submitted their views through the Constitution Select Committee (COPAC) website as well as attendance at the diaspora meetings held by the constitution reform body in Johannesburg in 2010 only to be barred from voting on the final document.
Zimbabwean authorities say citizens who are registered as voters but are out of the country when elections, referenda, or other electoral processes take place cannot participate due to the restrictive provisions of the Constitution as read with the Electoral Act. All Zimbabweans outside the country are barred from using the postal ballot to participate in polls except for those on government duty - and their spouses.
"In open and democratic African societies such as South Africa, Mozambique and Senegal, facilities are afforded to citizens who will be abroad on polling day to vote, even when they are not abroad on government service," said ZLHR.