N AT I O N A L I N Q U I R Y R E P O R T ZIMBABWE HUMAN RIGHTS COMMISSION For Human Dignity 6.2.3 Discriminatory Provisions Section 56 (2) of the Constitution provides for equality between women and men, including the right to equal opportunities in political, economic, cultural and social spheres. Further, section 80(2) of the Constitution elaborates on equality in the guardianship of minors. Additionally, section 56(3) prohibits discrimination on grounds of status including whether one was born in or out of wedlock. Section 19 (1) of the Constitution states that the state must adopt policies and measures to ensure that in matters relating to children, the best interests of the children concerned are paramount. Interestingly, section 12 (2)(b) of the BDR Act provides that a registrar shall not enter in the register the name of any person as the father of a child born out of wedlock, except— if the mother of the child is dead or has abandoned or deserted the child, (emphasis added) upon the request of the person acknowledging himself to be the father of the child. The language in this provision is first and foremost discriminatory as it singles out children born out of wedlock, which not only affects their right to access documentation but also their social well-being. Cognisant of the fact that equality and non-discrimination are enshrined in the Constitution, the said section 12 of the BDR Act allows fathers to register children without the need for joint request with a maternal relative in the event that the mother is deceased, abandoned or deserted the child. Evidence on the ground reveals that there is a mis-interpretation and mis-application of this section by the DRG officials who tend to place more weight on the provisions of section 12(2)(a) of the same Act which provides for joint request for registration by the mother and father when interpreting section 12 (2)(b).They do so instead of seeking a way of arriving at the best possible solution to resolve difficult circumstances faced by fathers who have custody of children whose mothers have died or abandoned and deserted them. The births of a significant number of children are un-registered because fathers cannot meet the requirements to bring maternal relatives who are unknown or whose whereabouts are unknown or refuse to co-operate. Fathers across all provinces testified that they were frustrated by their failure to register their children in the absence of the mother. The stringent internal DRG requirement of maternal relatives as the only witnesses should be removed because it is not prescribed by law. Suggestions were made that there be consideration of other members of the community like traditional leaders, local leadership and neighbours who can attest that a certain man is the father of the child. 6.2.4 Lack of Legislation Regulating Issuance of Passports Applications for passports and other travel documents can be made at Provincial DRG offices or foreign missions. The DRG’s office has indicated that their internal passport rules require that an applicant comes personally with copies of a birth certificate, national identity document and passport sized photos. Similarly, renewal and replacement of passports and travel documents requires the same documentation as an initial application without which none can be issued. This is observed as unnecessary since applicants for renewal or replacement would be dealing with the same issuer of all these documents. This encumbers people with administrative processes which are not prescribed by the law and lack administrative sense/coherence in view of the fact that the DRG’s office already possesses this information in their data base. This situation exists due to the lack of legislation which prescribes the application requirements and the fees payable. Internal policies and regulations for Government institutions should be developed in compliance with the law and should not take away rights provided for by statute. There is therefore, need that such policies be urgently reviewed and aligned with the Constitution and other laws of the country. 6.2.5 Registration of Children Born of Separated Parents A challenge was noted in relation to women with civil marriages but on separation with their husbands without dissolution of the marriage by the High Court, who have children with other men. In such instances, these women face challenges in registering children born outside the civil marriage due to the legal presumption that husbands with whom they are in the undissolved civil marriage are the fathers, unless the husband co-operates and deposes to an affidavit declining paternity of the child born outside of the civil marriage. This issue requires further analysis and review by the DRG. 6.2.6 Citizenship Act Section 36 of the Constitution allows for dual citizenship to all citizens of Zimbabwe by birth. However, Section 9 of the Citizenship of Zimbabwe Act prohibits dual citizenship. It is therefore, unconstitutional insofar as it applies to citizens by birth and needs to be aligned to the Constitution. 49 49