Blocked from the ballot

INTRODUCTION

There is a gap in the knowledge and appreciation of disabilities and as such in some countries such as Zimbabwe, basic amenities and services have not yet been fully structured in a way that is inclusive for those people living with disabilities (PWDs). This has in turn resulted in a charity-based approach when it comes to addressing the needs of PWDs. The United Nation Convention on the Rights of Persons with Disabilities (CRPD), (2006), and its Optional Protocol, represent a paradigm shift in the treatment of PWDs, from a medical or charity perspective, to a rights-based approach wherein PWDs are viewed as being capable of claiming their rights and making decisions based on their free and informed consent. The Convention seeks to achieve the promotion, protection and full and equal enjoyment of all human rights by PWDs and respect for their inherent dignity. Zimbabwe ratified the CRPD on the 23rd September, 2013, and this ratification indicates that Zimbabwe has assumed all the obligations under the CRPD. Not only is the CRPD a human rights document, but it is also a developmental tool to be utilized by governments in favour of PWDs.

According to the Convention on the Rights of Persons with Disabilities (CRPD), persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.[1]The World Report on Disability estimates a disability prevalence of 15% of world population.[2] Although currently plans are underway to undertake a survey of the total population of PWDs in Zimbabwe, it can be estimated that 15% of Zimbabwe’s population of about 15 million people encompasses PWDs.

RIGHT OF PWDs

Section 22 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013, enunciates the rights of PWDs as national objectives. Is it further stipulated in section 67 further that “every Zimbabwean citizen has the right to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and to make political choices freely.” The ability to vote is at the core of humanhood as it is a manner in which individuals take part in the selection of who they wish to represent them at all levels of government, therefore the right to vote is an indispensable civil and political guarantee. In addition, and of marked significance to the disability discourse in Zimbabwe, is the provision for appointment of two elected Senators under section 120(1d) of the Constitution, nominated by PWDs to champion their rights.

On 9th June, 2021, Zimbabwe launched its national disability policy and this policy was crafted as a measure to assist in domesticating provisions of the CRPD and to uphold the Sustainable Development Goals agenda of “leaving no one behind.” One of the mandates of the national disability policy is to cater for the political and public life of PWDs and the policy reiterates that PWDs have a right to enjoy and exercise their right to vote or to be elected and to vote in secrecy or to be accompanied by an individual of their choice.[3]

Besides the Constitution, Zimbabwe has other legislation which regulates the electoral process. Section 57 of the Electoral Act (Chapter 2:13) highlights that voting must be by ballot and must be conducted in a manner that is stipulated in the electoral law. Secondly, it must contain the names of the nominated candidates in alphabetical order. However, most persons with disabilities find it cumbersome if not impossible to cast their vote in the way prescribed in section 57(c)(i); (ii) and (iii) of the Act.

CHALLENGES

Barriers in the electoral process for PWDs manifest in three layers namely in the pre-election period, during the election period and the post-election period.[4] Challenges faced by PWDs include failure by political parties to address issues important to voters with disabilities or recruit candidates with disabilities, party manifestos that are not in accessible formats, inaccessible registration and polling centers, poll workers not trained in administering the vote to PWDs and voter education and information on political parties or candidates not distributed in an accessible manner.

During the election period PWDs face challenges that include inter alia, a lack of privacy in the voting process, assistance in casting votes from strangers, lack of braille ballots or enlarged print for those with visual impairments, inaccessible polling stations, security forces not sensitized on how to provide a safe environment for voters with disabilities and lack of trained personnel to assist in the voting process. Furthermore, attitudinal barriers which include stereotypes and stigma of PWDs, limit access to public life and may affect the confidence of those intending to stand for public office.[5]

Additionally, there is a lack of transport to polling stations and in some instances the absence of ramps and physical infrastructure serve as a barrier to PWDs as they find it difficult to move around. Post electoral challenges include the fact that PWDs are left out in the lessons learned process, amongst others.

During the 2018 elections, notable progressive efforts were made to include PWDs in the electoral process, with at least 55 000 voters living with disabilities, participating in the voting process. Disability friendly booths were erected in some polling stations and voters were assisted in casting votes.[6] While this was progressive, it is important to note that one of the key principles entrenched in section 155(1) of the Constitution, is that elections must be conducted by secret ballot and must be free from violence and other electoral malpractices. Whilst the assisted-voter program is commendable, the process of another individual essentially voting on a blind voter’s behalf or actively participating in the process degrades the sanctity of the secret ballot principle. It is a constitutional requirement that elections must be ‘conducted by secret ballot’. Therefore, although the national disability policy is a step in the right direction in terms of acknowledging the rights of PWDs to participate in the electoral process, the notion of the accompanied vote continues to contradict the notion of the secret ballot. Two is company in this instance. The freedom of selecting one’s candidate of choice is diminished by the presence of another person, no matter who that other person is.

While the assisted-voter program is aimed at assisting PWDs cast their votes, it can be said that this process strips PWDs of the same dignity, equality and integrity it wishes to bestow on PWDs. Furthermore, the assisted-voter program opens PWDs to exploitation and exposes the process of voting to abuse.

In September 2017, Senator Nayamaybo Mashavakure, who was the representative for PWDs, appealed to the Zimbabwe Electoral Commission (ZEC) to make use of sign language and braille voter education and polling material. The High Court dismissed this application in May 2018 on the basis that there was no need for the ZEC to print ballot papers in braille because the assisted-voter program was already in place and thus it was deemed adequate inclusion of PWDs in the electoral process. This decision can be criticised because one wonders what criteria was utilised in determining that what was on the ground was adequate, furthermore how does someone that does not have any disabilities determine what is enough in a reality that they have not lived. Secondly, as mentioned earlier, assisted voting is susceptible to abuse and directly goes against the principle of the secret ballot.

Moreover, the lack of inclusion and participation of PWDs is also demonstrated in the small number of those who contested for public office in the 2018 harmonised elections. Out of 23 presidential hopefuls, only one candidate, Elton Mangoma was a person with a disability.[7]

RECOMMENDATIONS

Without the implementation of practical measures to address the barriers above and the erection of adequate monitoring and evaluation frameworks in regards to the national disability policy and the sections relating to the Constitution and other legislation, all these documents will remain paper work and mere lip service.

In conclusion, there is the need for the government of Zimbabwe to take practical measures to address all the barriers at different stages (pre-election period, election period and post-election period) of the election cycle, as discussed above. Firstly, the government and relevant stakeholders should address access-related issues, ensure that financial resources are available to promote reasonable accommodation, train poll workers to administer the vote to PWDS, facilitate access to identity documents, address issues related to voter education and include PWDs as electoral observers.

Additionally, political parties should have PWDs amongst their contesting candidates, ensure that manifestos are in accessible format, security forces must provide a safe environment for PWDs and media outlets must provide information in accessible format and overall there must be an accessible adjudication process. Finally, PWDs must be involved in the aftermath of the election. It is my assertion that if these recommendations are taken on board, PWDs will not be blocked from the ballot.

*This article was published in the Law Society of Zimbabwe “Zim Juris Magazine” Issue 1 of 2022

[1] Article 1 of the United Nations Convention on the Rights of Persons with Disabilities (2006). [2] World Health Organization and World Bank (2011). World report on disability. Malta: World Health. [3] N Maphosa, CG Moyo and B Moyo “Left in the periphery: An appraisal of voting rights for persons with disabilities in Zimbabwe” 2019 “African Disability Rights Yearbook” (2019) 7 at 112-130. [4] Maphosa et al ADRY 133. [5] Ibid. [6] Maphosa et al ADRY 136. [7] Maphosa et al ADRY 118.