provided for under Article 27 (2) of the African Charter. The Complainant
concludes that the restrictions are therefore unreasonable.
84. The Respondent State on the other hand argues that residency is an acceptable
ground for restriction, and supports this assertion by contending that
Zimbabweans living abroad are less familiar with the domestic political situation
and may therefore be unable to cast “meaningful votes”. The Respondent State
furthermore submits that Zimbabweans living abroad are not affected by the
outcome of elections and should therefore not have the same voting rights as
residents. The Respondent State also claims that it does not have the financial
resources to internationalize its elections, hence the need to have all electors
present in Zimbabwe to cast their votes.
85. As correctly indicated by the Complainant, the Commission has held in several of
its decisions that the only legitimate interests for the restriction of rights that are
compatible with the African Charter are the conditions enumerated under Article
27 (2), which states that “the rights of the African Charter shall be exercised with
due regard to the rights of others, collective security, morality and common
interest”.29 The African Charter does not however define the scope of these
conditions, which allows for interpretation on a case by case basis, taking into
consideration the peculiarities of each circumstance at hand.
86. In relation to the claims of the Respondent State as to the cost of organizing
elections that include Zimbabwean citizens living abroad, the Commission notes
that this appears to be a blanket justification, and that the argument is not
accompanied by any supporting evidence. Without evidence detailing the
additional costs that such an election would entail, the Commission would have
to rely on conjecture to make the necessary analysis. Certainly, while the
Commission recognizes that a larger electorate would naturally entail more
expenses, without specific data and evidence, it is not possible for the
Commission to truly appreciate the difference in cost between elections that
include or exclude citizens that are resident abroad. For these reasons, the
Commission is of the view that this particular aim has not been sufficiently
justified.
87. The Respondent State provides two other justifications, which will be considered
jointly, as they both relate to what the Respondent State views as the primary
reason for excluding citizens living abroad, specifically, that they are less
informed about the issues at stake and that they are not affected by the outcome
of elections.
Communication 255/02 – Garreth Anver Prince v South Africa (2004) ACHPR, para 43; Communication
15/96: Social and Economic Rights Action Centre & Another v Nigeria, (2001) ACHPR, para 165
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