takes it as non-contentious that either through the reading or application of the
relevant laws of Zimbabwe, the Victims could have indeed travelled back to
Zimbabwe, registered and voted in the referendum.
98. As the Commission has already decided on the legitimacy of the aims that
underlie the limitation of the right to vote to resident citizens, the outstanding
matter therefore is whether the means adopted by the Respondent State, that is
requiring non-residents to travel back to Zimbabwe, is a proportional to the aims.
99. The European Court captured this balancing act when it determined the
proportionality of a restriction on the right to participate in government, stating
in Schindler v UK that it needed to examine
the genuine interest of the applicant, as a British citizen, to participate in
parliamentary elections in his country of origin and the chosen legislative policy
of Respondent State to confine the parliamentary franchise to those citizens with
a close connection with the United Kingdom and who would therefore be most
directly affected by its laws.36
100. The Commission acknowledges that the requirement of having to travel back to
Zimbabwe would certainly have had implications for the Victims. Specifically, the
Commission has in mind the potential financial costs of travelling back to
Zimbabwe and the time that would have been taken away from the professional
or personal commitments of the Victims. The Commission is however of the view
that the difficulties presented in this situation do not go so far as to completely
bar the Victims from voting “such that the right itself becomes illusory”.37 The
Commission is mindful that in certain circumstances, the requirement of having
to travel back may indeed be so onerous as to prove prohibitive due to financial
or other personal factors. In this regard, the Commission however wishes to
reiterate its previous point that laws are intended to lay down general rules and
cannot possibly accommodate the circumstances of every individual, and that
attempting to do so may lead to arbitrariness.
101. In essence, the question is whether the general assumption should lean towards
the ability or the inability of non-residents to travel back to their home countries
to vote. The Commission is of the view that the general principle should assume
the former, and as such, the Commission observes that requiring that the Victims
should have travelled from South Africa to Zimbabwe in order to vote strikes an
acceptable balance, and is therefore a proportional limitation.
36
37
Shindler v UK (n 36 above) para 118
Constitutional Rights Project case (n 23 above)
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