summarized its view on the meaning of “prescribed by law” in The Sunday
Times v the United Kingdom, stating that “the law must be adequately accessible:
the citizen must be able to have an indication that is adequate in the
circumstances of the legal rules applicable to a given case�� [and] … a norm
cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to
enable the citizen to regulate his conduct”.26
80. A combined reading of the above laws of Zimbabwe clearly limits eligible voters
to resident citizens, and permits external voting via post to only a certain category
of persons, as argued by the Complainant. In this regard, the Commission also
observes that the Respondent State does not argue to the contrary, and as such,
the parties are in agreement as to the meaning and effect of the relevant laws. The
Commission also observes that the Complainant has not argued that the Victims
were resident in Zimbabwe at the time of the referendum or that they belonged to
the category of persons eligible to vote via post. The Complainant has also not
challenged the procedural legality of the laws, specifically, whether any of the
laws in question were enacted in compliance with the duly prescribed processes
applicable in Zimbabwe.
81. The restrictions can therefore be said to have been provided by law as both the
Constitution and the Electoral Act prescribe an objective criteria for regulating the
exercise of voting rights, based firstly on residency and secondly on the nature of
work abroad. The Commission notes that although the Respondent State has
revised its Electoral Act27 and adopted a new Constitution28 since the initial
submission of this complaint, the relevant provisions remain the same in so far as
they retain a residency requirement and limit external voting to persons in
government service.
The restriction must be based on a legitimate interest or aim
82. The Commission now examines whether the restrictions pursued a legitimate
aim or interest, and can be considered as reasonable.
83. The Complainant acknowledges that the purpose of the expression “in
accordance with the provisions of the law “is intended to provide States with the
necessary scope to regulate the specific application of the right, but submits that
the restrictions are incompatible with the human rights obligation of the
Respondent State, as they are not based on any of the legitimate grounds
Application no. 6538/74 - Case of the Sunday Times v. The United Kingdom (1979) ECHR judgement, para
49
27
Electoral Amendment Act (2018)
28
Constitution of Zimbabwe (2013)
26
20