ACCESS TO DOCUMENTATION: AN ANALYSIS OF THE WHEELER CASE AND HOW COMMUNITIES CAN USE IT TO ACCESS DOCUMENTATION.

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  • ACCESS TO DOCUMENTATION: AN ANALYSIS OF THE WHEELER CASE AND HOW COMMUNITIES CAN USE IT TO ACCESS DOCUMENTATION.
Background Sometime in September 2020, Zimbabwe Human Rights Commission (ZHRC), an independent human rights institution, launched a report which reflected on the state of access to documentation in Zimbabwe. The report was a consolidation of the findings on the “National Inquiry on Access to Documentation in Zimbabwe”. The full report is accessible on http://www.zhrc.org.zw/wp-content/uploads/2020/11/NI-Report-1.pdf In its report, the commission recorded about two million cases of undocumented Zimbabweans. The report cites a number of challenges that are being faced by Zimbabweans in accessing documentation. Among the challenges is lack of a national policy on documentation, lack of adequate decentralization of the Department of the Registrar General (DRG) and inadequate human resources. Other challenges included generational non-documentation; rigidity in application of laws governing registration, economic challenges, and lack of human rights based approach in service delivery, marginalization of minority groups among others. THE CASE OF MR WHEELER On the 9th of November 2020 Mr Wheeler took the Registrar General to the Supreme Court on appeal seeking an order compelling the Registrar General to declare him a Zimbabwean citizen thereby conferring him with all the attendant benefits and duties of a citizen. In this case, The Supreme Court of Zimbabwe discussed Section 36 of the Constitution, particularly S36(2), a provision concerning citizenship and the rights and duties flowing from there. The facts of the case. Mr Wheeler, an Australian Citizen who was born of Zimbabwean parents who were ordinarily residents of Zimbabwe and who was resident of Australia. Upon approaching the Registrar General with an application to be awarded citizenship and all the national identity documents that flow from the citizenship, Mr Wheeler’s request was denied. He approached the High Court which ruled in favor of the Registrar General. Mr Wheeler then appealed to the Supreme Court against the High Court’s decision. The Supreme Court ordered that Mr Wheeler be entitled to Zimbabwean Citizenship as he was born of Zimbabwean parents, though born in Australia. The Court further ordered that the rights of Zimbabwean citizens are but not limited to citizen identity card, passport or other travel documents and an unconditional permanent resident in Zimbabwe and ordered the Registrar General to issue Mr Wheeler the national identity documents. WHAT DOES THE LAW SAY? Chapter 3 of the Constitution addresses the question of Zimbabwean citizenship. Section 35 states the following: “ (1) Persons are Zimbabwean citizens by birth, descent or registration. (2) All Zimbabwean citizens are equally entitled to the rights, privileges and benefits of citizenship and are equally subject to the duties and obligations of citizenship. (3) All Zimbabwean citizens are entitled to the following rights and benefits in addition to any others granted to them by law- To the protection of the State wherever they may be; To passport and other travel documents and To birth certificates and other identity documents issued by the State… Without the documentation, citizenship cannot be fully enjoyed. For citizens to enjoy their rights, such as the right to participate in governance, right to work, right to food, housing, medical care and necessary social services, right to education, and the right to participate in cultural life; their national identity must have been properly and legally established through national identity documents. As rightly put by the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, “these human rights are not country-specific. They are not a reward for good behavior, or particular to a specific era or social group. There are rights of people of every colour, from every race and ethnic group; whether or not they have disabilities, citizens or migrants; no matter their sex, their class, their caste, their creed, their age, or sexual orientation. Inaccessibility of documents directly violates these rights, all persons with citizenship, by birth or by registration, must enjoy without being discriminated against.” The law demands that for citizens to enjoy their fundamental rights as captured in chapter 4 of the constitution, documents of identity must be easily accessible. REFLECTIONS AND CONCLUSION ZimRights celebrates the Supreme Court’s decision as about two million Zimbabweans remain undocumented and fail to obtain identity documents, with one of the major reasons being the overwhelming institutional processes. In this case, the Court conclusively ruled on and affirmed the rights of citizens and duties and obligations of the duty bearers to ensure the declared and affirmed citizens enjoy their rights as citizens. The substance of citizenship is, in no small way, a function of modern constitutional arrangements which are based on the notion of popular sovereignty and the equality of citizens and the ability of citizens to access and enjoy their rights. ZimRights advises community members who have been highlighted in the report by the ZHRC’s National Inquiry on Documentation to approach the Courts and seek the enforcement of their right to identity and access to documentation. In light of the Supreme Court’s judgment and the National Inquiry by the Zimbabwe Human Rights Commission, ZimRights calls upon the government of Zimbabwe to reflect on the importance, impact, and complexities of translating traditional approaches regarding requirements for accessing national identity to accommodate current situations. More importantly, the government and all its agencies must accommodate marginalized communities, minority groups, orphans and abandoned children, children of victims of the Gukurahundi incident, and other problems currently faced by communities in accessing documentation. Article by Rumbidzai Francisca Zengwa Rumbidzai Francisca Zengwa is a Legal Practitioner. She coordinates ZimRights’ Community Justice Programme. Comments on this article can be send here or to: francisca@zimrights.org.zw

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