Urgent
application
MUNANGATI-MANONGWA
J:
The
right to vote lies at the centre of every constitutional democracy.
Such a right falls under political rights which a citizen is entitled
to enjoy and same are constitutionally protected, and in the
Zimbabwean case, under Section 67 of the Constitution of Zimbabwe
Amendment (No 20) Act 2013 (hereinafter referred to as the
“Constitution”). The right to vote can only be exercised when one
is duly registered as a voter.
In
pursuance of this right to vote the applicants brought the present
urgent application, dragging among others, the body constitutionally
mandated to register voters, being the Zimbabwe Electoral Commission,
the 1st
respondent (hereinafter referred to as “ZEC” or “1st
respondent” interchangeably) to court on an issue pertaining to
registration of a certain class of persons referred to as “aliens,”
and for the third applicant, her registration, as voters.
Historically,
the attainment of the right to vote was earned through struggles.
Wars in their different forms were fought for the attainment and
enjoyment of political rights and freedoms amongst which is the
attainment of universal suffrage, put simply the right of all
eligible adults to vote. From the French revolution, revolutions
world over to various liberation struggles in Africa including
Zimbabwe's very own Chimurenga Liberation struggle, central to the
interests clamoured for were political rights. So important to
citizens is the right to participate in the democratic processes that
establish a government to the extent that citizens go to great
lengths in seeking to assert such rights. This case is an example of
the quest by citizens to exercise and enjoy their political rights.
On
the 29th
November 2017 I granted a final order which in essence inter
alia
allowed a certain category of “aliens” to be able to register to
vote upon production of their identity documents endorsed “alien”
coupled with production of the registrant's birth certificate
showing that such person was born in Zimbabwe; or at least one of the
parents was born in Zimbabwe; or is from the SADC region, with anyone
relying on the latter showing that he or she was ordinarily resident
in Zimbabwe as required by law. The order reads -
“IT
IS ORDERED THAT:
1.Any
person born in Zimbabwe who is of over eighteen (18) years with an
identification card endorsed alien and a birth certificate showing
that such person was born in Zimbabwe and that at least one of the
parents of such person was born in Zimbabwe or from the SADC region
with proof that he or she was ordinarily resident in Zimbabwe is
forthwith entitled to be registered by the 1st
respondent to vote without any impediment or additional requirement
other than requirement relating to all people.
2.
The 2nd
respondent shall not charge any such person described in paragraph 1
above to obtain fresh identification particulars during the period
which the biometric voter registration exercise is taking place as
per
the timelines set out by the 1st
respondent.
IT
IS CONSEQUENTLY ORDERED THAT:
3.
The 3rd
applicant together with any class of persons in a similar predicament
be and are hereby entitled to be forthwith registered as voters by
the 1st
respondent in the biometric voter registration exercise upon
production of the identification card endorsed 'alien' coupled with a
birth certificate showing that they were born in Zimbabwe to parents
from SADC region or one of whom is a Zimbabwean and proof of
residence.
4.
There shall be no order as to costs.”
In
doing so I made the following remarks which I maintain: that the
right to vote is one of the most fundamental rights which a person
enjoys in their lifetime and needs to be jealously guarded.
At
the centre of this matter was the issue of registration as voters of
the so called “aliens” who by virtue of section 36 and 43(2) of
the Constitution have become citizens. As citizens they are entitled
to enjoy political rights enshrined under section 67 of the
Constitution and in particular section 67(3) which reads:
“Subject
to this Constitution every Zimbabwean citizen who is of or over
eighteen years of age has the right-
(a)
To vote in all elections and referendums to which this constitution
or any other law applies and to do so in secret; and
(b)
To stand for election for public office and, if elected, to hold such
office.”
The
applicants, being two political parties, the Movement for Democratic
Change in their two forms, and the third applicant, one Sarah
Kachingwe, approached this court on an urgent basis alleging that
their members (for the political parties) and for the third applicant
she herself, their right to vote was in danger of infringement due to
the fact that those in possession of identity documents in the form
of cards endorsed “alien” were failing to register to vote on
account of the endorsement and/or that the second respondent has
either refused to issue them with identity documents endorsed
“citizen” or had placed onerous conditions in terms of fees and
other requirements for issuing of such identity documents.
The
applicants sought the following provisional order:
“IT
IS HEREBY ORDERED THAT:
TERMS
OF THE FINAL RELIEF SOUGHT
1.
It is hereby declared that any person born in Zimbabwe who is of or
over eighteen (18) years with an Identification Card endorsed alien
and a Birth Certificate showing that such person was born in
Zimbabwe; and that at least one of the parents of such person was
born in Zimbabwe is equal before the law and has the right to equal
protection and benefit of the law, including the right to be
registered as a voter.
2.
It is hereby further declared that the person described in paragraph
1 above has the right not to be treated in an unfairly discriminatory
manner on the grounds of their descent, ethnic or social origin, by
being subjected by the respondent directly or indirectly to a
condition, restriction or disability to which other people are not
subjected to or other people are accorded directly or indirectly a
privilege or advantage which they are not accorded.
3.
The 1st
to the 3rd
respondents to pay costs of this application if opposed to the relief
sought.
TERMS
OF THE INTERIM RELIEF GRANTED
1.
Any person born in Zimbabwe who is of or over eighteen (18) years
with an Identification Card endorsed alien and a Birth Certificate
showing that such person was born in Zimbabwe and that at least one
of the parents of such person was born in Zimbabwe or from the SADC
region is forthwith entitled to be registered by the 1st
respondent to vote without any impediment or additional requirement
other than requirements relating to all people pending the final
determination of this matter on the return date.
2.
Specifically, the 1st
respondent is required to register any such person(s) described in
paragraph 1 above as a prospective voter with immediate effect
pending the final determination of this matter on the return date.
3.
The 2nd
respondent shall not charge any such person described in paragraph 1
above to obtain fresh Identification particulars during the period
which the biometric voter registration exercise is taking place as
per the timelines set out by the 1st
respondent.
4.
The 3rd
applicant together with any class of persons in similar predicament
be and are hereby entitled to be forthwith registered as voters by
the 1st
respondent in the Biometric Voter Registration exercise upon
production of the Identification Card endorsed Alien coupled with a
Birth Certificate showing that they were born in Zimbabwe to parents
from the SADC region or one of whom is a Zimbabwean and Proof of
Residence.
SERVICE
OF THE PROVISIONAL ORDER
1.
The applicant/applicant's Legal Practitioners and/or employees be
and are hereby permitted to serve copies of this provisional order
upon the respondents or their Legal Practitioners as the case may
be.”
The
first respondent ZEC, and the second respondent, the
Registrar-General partly opposed the relief sought. The third
respondent being the Minister of Home Affairs cited in his official
capacity did not oppose the application, neither did the fourth
respondent the Zimbabwe African National Union Patriotic Front
(hereinafter referred to as (ZANU PF)). The applicants maintained
they had cited ZANU (PF) as an interested party but in my view this
was not necessary hence it is no surprise that, that party never
bothered to respond. No doubt its members may benefit from the order
if they had met such or any impediments by virtue of being 'aliens'.
At
the hearing the parties agreed that the matter was urgent and indeed
it being so, the matter proceeded as such. Further, the legal
practitioners involved rightly agreed that the resultant order was to
be a final order and that the terms of the final relief were
superfluous as they simply restated the law as espoused in the
Constitution. Further, the parties agreed that an order could be
issued as per
the applicants' draft order for clauses 1-3, leaving clause 4 as
the term to be decided upon by the court. Despite that consensus as
between the parties, I ultimately issued a different amended order
because some of the clauses agreed to were not properly couched and
superfluous, in particular, Clauses 1 and 2.
What
ultimately the parties argued upon was whether or not the first
respondent, Zimbabwe Electoral Commission should be ordered to
register as voters the so called “aliens” upon production of the
national identity card, and a birth certificate showing that they
were born in Zimbabwe of a parent who was born in Zimbabwe or from
the SADC region coupled with requirements applicable/relating to all
other people like proof of residence.
This
legal issue arises from the historical constituent of the Zimbabwean
society which consists of a certain class of persons which the
Constitution has acknowledged in sections 36 and 43(2) to be
citizens. These persons had been labelled “aliens” with their
identity documents duly endorsed as such. The Shorter Oxford English
Dictionary defines an “alien”
as a “stranger,
a foreigner, a resident of foreign origin.”
Given the circumstances of these persons which included their place
of birth and parental origins, the label of “alien” was not in my
view appropriate given the aforementioned definition. Constitutional
intervention brought clarity to the issue of this class of “aliens”.
The relevant part of section 36 which impacts upon this case provides
-
“1.
Persons are Zimbabwean citizens by birth if they were born in
Zimbabwe and, when they were born –
(a)
Either their mother or their father was a Zimbabwean citizen;”
And
the relevant section of Section 43 reads -
(2)
Every person who was born in Zimbabwe before the publication day is a
Zimbabwean citizen by birth if—
(a)
one or both of his or her parents was a citizen of a country which
became a member of the Southern
African
Development Community established by the treaty signed at Windhoek in
the Republic of Namibia on the 17th
August, 1992; and
(b)
he or she was ordinarily resident in Zimbabwe on the publication
day.”
Put
simply section 43(2)
provides
that any person who was born in Zimbabwe before 22 May 2013 is a
citizen by birth if one or both of his parents was a citizen of a
SADC member State and he or she was ordinarily resident in Zimbabwe
as at that date.
These
sections were in my view borne of the realization that a certain part
of the citizenry was legally left out and had to go through certain
processes to assert their citizenship when to all practical intents
and purposes they were indeed citizens of Zimbabwe given their birth
status and parental history.
It
is a fact that Southern Africa experienced migrations from different
countries and in the 1950s – 1960 people from Malawi came to the
then Southern Rhodesia to look for employment. Mozambique and South
Africa are countries which also had their people coming to Zimbabwe
either as asylum seekers, or refugees, when South Africa was still
under apartheid and Mozambique experienced displacement of its
citizens due to war. The people of neighbouring Botswana and Zambia
have also got a history with Zimbabwe from the liberation struggle
where Zimbabwean liberation armies got accommodated there as well as
in Mozambique and Tanzania. All this resulted in intermarriages
between these people and Zimbabweans and families being created from
associations. As a result, a significant part of the Zimbabwean
society is constituted by the offspring of such persons and despite
being born in Zimbabwe they had been labelled “aliens”. A new
Zimbabwean Constitution which came into operation on the 22nd
May 2013 gave these persons full citizenship status with the
entitlement to all rights, benefits and privileges attendant upon a
citizen hence this application.
First
and second applicants have projected a representative approach in
asserting that their members have been unable to register to vote as
their identity cards are endorsed “alien” and by reason of that
have been turned away. Sarah Kachingwe, the third applicant
demonstrated the predicament an alien finds himself or herself in.
She was born on the 5th
January 1960 in Zimbabwe. Her late father was from Malawi and her
mother is a Zimbabwean. All this information is on her birth
certificate. She holds a national identity card duly endorsed
“alien”. She is a confirmed resident of Epworth and when she went
to register as a voter the first respondent's officials refused to
entertain her referring her to the second respondent's office for
regularisation of her identification card. It is also worth noting
that this applicant had however under the old law been registered as
a citizen of Zimbabwe and has placed before the court the certificate
of such registration.
She
alleges that when she went to the second respondent's offices to
get an identity card, the second respondent's officials demanded a
staggering payment of $5,000-00 which she was unable to pay as she is
not gainfully employed. Due to this she approached court as she felt
her political rights were infringed and, sought the court's
intervention to enable her to assert her fundamental rights as a
citizen who is entitled to all rights, benefits and privileges
attendant to a Zimbabwean citizen specifically the right to vote.
The
first respondent in its position has not denied the allegation that
it turned the third applicant away nor other applicants duly
represented by the first and second applicants. In fact there is
evidence by way of a report on the Biometric Voter Registration
Statistics for phase 1 and phase 2 as at 8 November 2017 (1600hrs)
which indicated that thousands of persons were turned away by its
officials for various reasons including being “alien”. The
reports which showed figures from various provinces does not state
how many were turned away for the reason of being “alien” and in
what circumstances. I note that this reason appears in reports from 8
provinces out of the 10 provinces that constitute Zimbabwe. It is
only reports from Matabeleland South and Masvingo that did not have
such an indication. The only conclusion is that the issue of “aliens”
is a reality and I am bound to believe the first and second
applicants when they allege that a significant number of people have
been affected.
In
their application the first and second applicants allege that they
together with the first respondent ZEC and the fourth respondent Zanu
PF set up a high level political platform chaired by the Honourable
Justice Makarau
who also represented the first respondent on the platform together
with other members of ZEC. The parties had deliberated on the issue
of aliens and agreed it was feasible to have them registering to vote
using their identity cards endorsed “alien” coupled with a birth
certificate pointing to birth and parentage of Zimbabwean or SADC
origins. However the first respondent was comfortable with a
directive from the court.
The
first respondent has not categorically denied this.
Whilst
I am not bound by whatever discussion that may have ensued between
ZEC and the political parties, I note that the first respondent has
not projected an independent opposition or stance of its own. In its
initial opposition, it took a stance that, the Registrar-General, the
second respondent, has denied refusing to issue identity documents
endorsed “citizen” to the class of persons represented by the
applicants nor imposing unduly onerous conditions. It asserted that
the Registrar-General has assured ZEC that he is prepared to issue
identity documents to the concerned aliens which documents identify
them as citizens. It took the position that since the
Registrar-General had clarified the issue and made an undertaking the
matter stood resolved.
The
first respondent further argued that if the second respondent were to
renege on the undertaking the applicants could re-approach the court.
In
the initial affidavit the court expected more in terms of the
position ZEC was adopting not a regurgitation of the Registrar
General's position. This expectation arises out of the fact that
ZEC is the body constitutionally mandated to deal with the issue of
voter registration and compilation of voters' rolls and registers.
See section 239(c) and (d). This is a pertinent issue to which an
independent position must have been adopted, moreso when the order
sought is against the first respondent who when the order is granted
is faced with its implementation. The position adopted did not assist
the court as expected, moreso, given the special position ZEC
occupies viz
the issue at hand. Despite the fact that ZEC is the first respondent,
it had to await the second respondent's opposing affidavit perhaps
for a good reason which I struggled to appreciate.
In
his opposition and supplementary affidavits the Registrar-General
opposed the relief sought on the basis that all such persons in the
position of the applicant should simply approach his office and
obtain an identity document showing that they are citizens. He denied
that his office demanded an exorbitant amount as alleged by the third
applicant nor demanded renunciation of citizenship as a requirement
to issuance of an identity card to an “alien” in the category in
issue. The second respondent argued that foreigners who are not
citizens of Zimbabwe also possess the same documents as the “aliens”
in issue and hence it would not augur to allow the applicant's
members and the third respondent to approach the first respondent
with an identity document inscribed “alien” plus a birth
certificate.
Be
that as it may, this remained a bold averment as the second
respondent did not provide information which proves the point that
any other alien's birth certificate and national identity card
would be similar to the ones given to these under consideration whose
birth was in Zimbabwe with parentage hailing from Zimbabwe or the
SADC region.
The
second respondent also raised the issue that, granting the
dispensation is likely to induce production of many counterfeit birth
certificates which the first respondent's officers cannot identify
as, they have no capacity to distinguish between a counterfeit birth
certificate and an original birth certificate. To buttress this
point, the second respondent, alleged that a birth certificate simply
has information on the child unlike an identification document which
“is based on the features which include the photographs, finger
print, bar code and signature of the holder….”
Clearly
there is no supportive evidence that the granting of the order will
result in production of counterfeit birth certificates. The people
under consideration already have identity cards serve that they are
endorsed “alien” and in normal circumstances identity cards are
issued to persons with birth certificates. The issue of fake
documents does not apply to birth certificates only, even metal
identity cards could be fake and as argued by Mr Mwonzora
in his answering affidavit “we cannot stop using passports or
drivers' licences or even United States dollar notes because one or
two criminals have attempted to produce fake ones”.
I
agree with these sentiments.
In
any administration producing a watertight system is a challenge. It
is a fact that ordinary Zimbabweans when registering to vote are
producing identity documents including metal ones which bore no bar
codes nor a signature, and ZEC has no way of knowing the authenticity
or otherwise. They have to presume authenticity.
Mr
Halimani
for the applicants argued that the fear of the use of counterfeit or
fake birth certificates was baseless. This is because the registrant
would not only have a birth certificate, but will also be in
possession of his identity card which will reflect not only his
details but his photograph as well. The only difference with the rest
of the identity documents produced by other registrants is that it is
endorsed “alien”.
This
indeed is the correct scenario.
Of
interest is the fact that the second respondent annexed to his
supplementary affidavit a specimen of an authentic birth certificate.
The information is clear and informative such that one wonders how it
is that the second respondent alleges that the first respondent would
be unable to interpret a birth certificate. The names on the specimen
appear as “HELLEN MATANDA” giving the sex, place and date of
birth of the holder. The names of the father are indicated as JOSEPH
ISAAC MATANDA who was born in ZIMBABWE with the National Identity
document card indicating district of issue and district of origin. As
for the mother WINDI CHASARA, she was born in Goromonzi and the
information on her national identity card being duly provided. A
comparison with third applicant's birth certificate shows that her
parents' origin are from Zimbabwe and Malawi respectively and her
birth certificate shows her birth place as Zimbabwe.
I
thus do not consider the second respondent's argument to be
meritorious.
Nothing has moved me to believe that the first respondent's
officials would not be able to perceive the requirements stated in
section 36 or 43 of the Constitution.
In
the absence of such a demonstration I also found quiet baffling the
argument by the second respondent that the birth certificate issued
to different categories of people do not reflect the citizenship
classification of the “birth certificate holder” (my emphasis).
If
a child is born in Zimbabwe of a Zimbabwean citizen parent, what
classification would deviate from a conclusion that the child
concerned is a Zimbabwean citizen in the light of section 36. In
Mawere
v Registrar General & Others CCZ27/13
Garwe JA stated as follows:
“Section
36 is not made subject to any other section in the Constitution. It
stands alone. The ordinary grammatical meaning of the section is
clear and allows of no ambiguity. A person born in Zimbabwe to a
parent who, at the time of birth, was a Zimbabwean citizen, is a
Zimbabwean citizen. That section does not oblige a person in
this category to do anything further to qualify for Zimbabwean
citizenship.”
The
effect of the above findings by the Constitutional Court renders
redundant the classification argument by the Registrar-General, that
the concerned person's identity card is endorsed “alien”
becomes cosmetic and of no legal significance or importance as the
person needs not do anything further as he or she automatically is a
citizen by virtue of his or her circumstances.
There
seems to be a lack of understanding of the provisions of section 43
of the Constitution by the second respondent given the examples he
gives in his supplementary affidavit in view of the relief sought. In
one instance he argued that a birth certificate coupled with a
national identity document endorsed “alien” does not expressly
reflect the citizenship status of the potential registrant.
This
to me is a question of fact, was the potential registrant born in
Zimbabwe to one or both parents of SADC origin and whether the
registrant was ordinarily resident in Zimbabwe before 22 May 2013.
The birth certificate would reflect the information on place of birth
and origins of parents involved. Citizenship is based on the facts as
prescribed by the law. The issue of proof of residence would rest on
the registrant to satisfy the officials on that aspect. Further, it
was argued, this will result in a flawed process as other people who
are holders of identity documents endorsed “alien” may end up
registering as voters. This becomes more intriguing if one considers
that the second respondent in his opposing affidavit annexed a
dispensation directive issued by the Government during the harmonised
elections of 2013. I find it imperative to reproduce same as is for a
proper appreciation of the issue at hand.
“PRESS
STATEMENT
HARMONISED
ELECTIONS 2013
Voter
Registration: Clarification on Aliens.
The
Honourable Minister of Justice, Legal and Parliamentary Affairs Hon
Patrick Chinamasa (MP) advised the public that all citizens of
Zimbabwe who are 18 years and above are eligible to register as
voters. This applies to the following persons:
Citizens
by birth
(i)
This refers to persons born in Zimbabwe where both parents are
citizens of Zimbabwe by birth, or
(ii)
Persons born in Zimbabwe where either parent is a citizen of Zimbabwe
by birth, some of whom are holding aliens' identity cards or
documents.
It
should be noted that there are different categories of “Aliens”
as indicated below;
(a)
A child born in Zimbabwe where either parent is a Zimbabwean citizen
by birth and the other parent being a foreign national who did not
renounce foreign citizenship.
(b)
Any person who arrives in Zimbabwe and resides in Zimbabwe for a
period of six months or more is issued with an identity document
denoting the citizenship status as “Alien” (AA).
(c)
Refugees are classified as aliens (RFG).
The
category of aliens we are referring to who qualify to register to
vote are those persons who are born in Zimbabwe where either parent
is a citizen of Zimbabwe and those whose parents have been in
Zimbabwe for a long time (prior to 1980). This covers children whose
parents originated from Malawi, Zambia,Mozambique,Botswana,South
Africa, Tanzania, and others within the region.
Requirements
for Voter Registration
Documents
required for one to register as a voter:
(a)
Full original birth certificate for persons born in Zimbabwe together
with;
(b)
National identity documents (metal, polythene-synthetic or legible
green waiting pass with holder's photograph); Or
(a)
Valid Zimbabwean passport and;
(d)
Proof of residence.”
The
above press statement was clear as regards the “aliens” that were
being given the dispensation. Equally this application is clear as to
the class of persons for whom relief is sought, which incidentally is
the same class granted that dispensation in the 2013 harmonised
election. Whilst there may be different categories of “aliens”
the relief sought is clear that it covers those born in Zimbabwe to
either a Zimbabwean citizen, or persons born in Zimbabwe before 2013
where one parent was a citizen or both parents were citizens of a
SADC country and the person is ordinarily resident in Zimbabwe. The
argument by the second respondent that because there are different
categories of 'aliens' confusion will reign does not hold water
given the specificity in the class that sought this relief.
It
is important for litigants to appreciate the nature of relief being
sought in order for an appropriate opposition to be presented.
Failure to do so will result in a litigant going on a wild goose
chase.
The
first respondent sought to argue that the dispensation sought worked
in 2013 as the Registrar-General had the data at his disposal and now
the Registrar is not involved. Suffice it to say that registration
then was decentralised and no evidence was given by the
Registrar-General himself that during that period they had to do a
special verification exercise on the documents produced by “aliens.”
Apart from bold averments the Registrar-General failed to demonstrate
how the voter's roll would be distorted if the proposed course of
action is adopted.
Evidence
presented by the applicants on the Registrar-General's office's
reluctance to co-operate in registration issues remains unchallenged
in particular that his officers in September 2017 continued to charge
for issuance of documents despite a waiver by Government in terms of
section 78(1) of the Public Finance Management Act [Chapter
22:09].
Applicants averred it had to take the then ZANU PF Secretary for
Administration Dr Ignatius Chombo to order the second respondent to
comply. To then leave such an important issue in the hands of the
Registrar-General where the parties herein had seen reason and agreed
on the proposed course would not be in the interest of justice, more
so when ZEC is now the body responsible for the management of the
voter's roll.
It
is not a secret that the final position taken by ZEC is informed by
the Registrar-General. The following statements extracted from Mr
Magade's supplementary affidavit are informative:
“7.
Had there been no acknowledgement of his constitutional duties
by the Registrar- General the special dispensation may have been
necessary but that is not the case.
8.
In the result, and upon the strength of the representations by the
Registrar-General, as appear in Annexure “A” here to (the
Registrar-General's supplementary affidavit) the Commission is of
the view that there need not be any special dispensation relating to
production of birth certificates extended to the third applicant and
persons in similar circumstances.”
I
interpret these statements to imply that, for ZEC, the
Registrar-General has spoken so shall be it. There is no indication
on its part how in their own opinion the dispensation would
compromise the voter's roll and impact upon ZEC's integrity. It
has been made clear by the first respondent that the crux of the
commission's objection is the Registrar-General's affidavit which
brought up issues in their consultation. As this is the situation,
having found the grounds raised by the Registrar-General to be of no
merit the result is the crumbling of the first respondent's
opposition by virtue of solely being based on the Registrar-General's
position.
The
only independent fact raised by the first respondent is that allowing
the relief sought to prevail creates an unfair advantage for persons
in the class of the third applicant as against the rest of the
citizenry. This is premised on the fact that no other classes of
citizens will be allowed to register to vote outside production of
identity documents provided for in the Electoral Act [Chapter
2:13]
as a birth certificate is not part of the definition of proof of
identity. According to Mr Kanengoni
for
the first respondent, this creates an additional right. He argued
that the Electoral Act defines proof of identity as “identity
document, valid passport and a valid driver's licence” hence a
birth certificate is not covered.
To
me, it is clear that there is no violation of the Electoral Act. The
definition of proof of identity in the said Act reads:
“proof
of identity” means a valid Zimbabwe passport, or a notice or
identity document issued in terms of
section 7 of the National Registration Act [Chapter
10:17],
or a valid driver's licence containing an
identity number assigned to the holder thereof under the National
Registration Act [Chapter 10:17];”
A
look at section 7 of the National Registration Act [Chapter 10:17]
shows that there is no perceived differentiation. The section speaks
to the identity of a person and the accuracy of the information
followed by the issuance of an identity document in a form
prescribed: and thus the document would contain the person's
photograph and such other particulars of the person as directed by
the Minister. No argument was presented by the 1st
respondent that the identity cards held by the persons in issue are
not issued in terms of Section 7 of the National Registration Act.
The said section reads as follows:
“Issue
of identity documents
(1)
If a registration officer is satisfied as to the identity of an
applicant for registration and the accuracy of
any
information given in connection with the application for
registration, he shall issue to the applicant a notice in writing
indicating the date on which the applicant has applied for
registration and the place at which and time when the applicant may
receive his identity document.
(2)
When an applicant for registration surrenders to a registration
officer the notice issued to him in terms of subsection (1) at the
place and within the period specified in that notice, the
registration officer shall, if he is satisfied as to the identity of
the applicant, issue to him an identity document which shall -
(a)
be in a form prescribed and of materials approved by the Minister;
and
(b)
contain a photograph and such other particulars of the registered
person as the Minister may direct.”
The
persons concerned herein are producing an identity card, it is only
that they need to go further and prove that indeed they are citizens
by referring to their birth certificates. How it can be said to be an
additional right is puzzling. Any other citizen need only produce an
identity card or valid passport and proof of residence. If anything
it becomes onerous for the class of persons in issue, because it is
them who need to go the extra mile to prove that they are covered by
the Constitution in asserting their endowed rights. In passing, I
need state that an Act of Parliament cannot come in the way of the
full enjoyment of a right bestowed by the Constitution. The argument
that the granting of the dispensation provides more rights to the
class of persons in issue has no merit and deserves to be discarded
without further ado. Should there be a category of citizens who have
any issues and feel discriminated upon, it is incumbent upon them to
bring up such issues. The first respondent cannot plead their case.
The law will assist the diligent and those who seek to assert their
rights as the applicants have done.
Overall,
in my view, the only pertinent issue which should have exercised the
litigants' mind should have been the challenges presented by
section 43(2)(b) which entail proving that the person relying on the
section was ordinarily resident in Zimbabwe on the publication day of
the Constitution being the 22 May 2013. This is an additional
requirement for one to qualify as a citizen under that section. The
issue of being born in Zimbabwe before May 2013 to one or both
parents who are citizens of a SADC member country would not be a
challenge as the birth certificate would clearly stipulate this
information. None of the parties raised this issue which in my view
ZEC as the body implementing the voter registration exercise might
have considered as a challenge in implementing the relief sought.
Without any submissions on possible challenges likely to be
encountered on this note, the court simply had to assume there were
none.
The
national voter registration blitz will end in December 2017. After
that, voter registration will continue at the usual 63 or so voter
registration centres resulting in prospective registrants meeting
considerable costs to access those centres. It was therefore
pertinent that the relief that was sought be granted given the
strength of the applicant's case and the circumstances attendant
thereto. The balance of convenience was in favour of the applicants.
The courts would be failing in their duty to breathe life into
constitutional provisions if but for perceived administrative
niceties they deny relief where same is justified. It is due to the
aforegoing reasons that I granted the stated relief to the so called
“aliens” who practically and legally are Zimbabwean citizens with
every right to enjoy the privileges and constitutionally protected
rights attendant to their true status.
Wintertons,
applicant's legal practitioners
Nyika
Kanengoni & Partners,
1st
respondent's legal practitioners
