Women can now get passports for their children

In Zimbabwe where a woman is married she is not the legal guardian of her child. A test case taken up by the Zimbabwe Women Lawyers Association (ZWALA) established that both parents of a minor child can assist a child to obtain a passport. This is a victory for all women married both under customary and general law who wish to get a passport for their minor child.

According to Section 3 of the Guardianship of Minors Act the father of children born in wedlock is the guardian of the children. As a result of this provision married women who apply for passports for their children have had their applications refused on the grounds that they are not the guardians of the children and the Registrar General has demanded that the father be the one who personally appears before him and signs the forms on behalf of the child. Further S23 (3) of the Constitution allows for discrimination in matters of personal law as well as in matters of African customary law. At customary law the father is deemed the guardian of a child born in wedlock as in terms of general law.

However, International Conventions ratified by Zimbabwe and the SADC Gender Protocol, call for joint guardianship of minors and non discrimination. The SADC Protocol endeavours to enshrine gender equality and equity in Constitutions which is not compromised by any provisions or laws. Zimbabwe Women Lawyers Association (ZWLA) therefore instituted court proceedings as Test case litigation challenging this practice in the case of Margaret Dongo v Registrar General (HC 6695/06) and (SC292/08).

On the 24 January 2006 Margaret Dongo approached the Registrar General’s office in Harare at the Passports offices as she sought to apply for a passport for her then minor child. Since the application was for a minor child Part 5 of the Zimbabwean passport application form requires a Declaration by the father or other legal guardian. Dongo duly completed this section on behalf of her minor child, but the Registrar’s office refused to accept her application, insisting that only the father of the minor child could assist in such application.

The Constitution of Zimbabwe which is the Supreme Law of the Land allows for the dual operation of customary law and general law. Section 23 of the Constitution, which is a non-discrimination clause outlaws discrimination. However the grounds provided for are not exhaustive and this section has a claw back close which allows discrimination in Section 23 (3) (a) in matters of personal law as well as in matters of African customary law. This therefore has the effect of negating provisions of gender equality as customary law is patriarchal in nature, and thus allows the further disempowerment of women. These clauses have in the past been used to negate the advancement of women’s human rights particularly in matters of personal law.

The challenge of the recognition of customary law is that it is fraught with practices that undermine women’s human rights such as polygamy, pledging of girls, widow inheritance and early marriages. See for instance in the case of Magaya v Magaya 1999 (1) ZLR where the Court held that a daughter could not inherit intestate from the estate of her late father in terms of African customary law and in that case awarded the immovable property which was the subject of the dispute to a younger male heir.

After receiving many similar cases, the Zimbabwe Women Lawyers Association (ZWLA) embarked on test case litigation to challenge the constitutionality of the Registrar General’s Action. The Challenge of using test case litigation as a strategy for law reform is that Court process is slow. This case ran from 2006 to 2008 when it came before the Supreme Court. By the time judgement came in 2011 after the Dongo’s son was already a major.

However, the case establishes an important precedent. In passing judgment the Judge highlighted that the application of a passport did not constitute a juristic act. This means the application of a passport is not an act where guardianship of a minor is being exercised, and hence both parents could apply for their child’s passport. While this judgment is favourable to women it did not address the constitutional issues raised. But the judgement serves as a step towards non-discrimination. The result of the judgement is that steady streams of women now obtain travel documents for their children in the absence of their husbands.

There still is need to amend the constitution and ZWLA has been actively participating in the ongoing constitution making process, and upraising women on the effect of these and other discriminatory practices. Such actions can be replicated in other jurisdictions in the SADC region as most African constitutions have both customary law and general law operating which usually has the effect of negating women’s human rights.