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Editor’s Memo

Catch 22

By Vincent kahiya

I READ with interest recently of Judith Todd’s plight in a heartfelt mailing from her. She has

been done a wounding injustice by our government and judicial system that needs to be more widely known.

Judith was born in Zimbabwe in 1943. But in 2001 she was refused a passport by Registrar-General Tobaiwa Mudede on the grounds that she was entitled to New Zealand citizenship because her father, former Prime Minister Sir Garfield Todd, was born there. She had never possessed New Zealand citizenship nor applied for it.

In May 2002 the High Court ordered Mudede to renew her Zimbabwe passport. Instead he appealed against the High Court ruling to the Supreme Court while reluctantly issuing a temporary passport of one year’s duration in which he pre-empted any judgement by the Supreme Court by declaring that Judith was a permanent resident of Zimbabwe, thus not a citizen.

In February 2003, in what she describes as “an agonisingly confused and confusing judgement”, the Supreme Court declared that Judith was a citizen of both New Zealand and Zimbabwe and concluded: “For the avoidance of doubt, the respondent has two days from the handing down of this judgement within which to renounce her New Zealand citizenship in accordance with the New Zealand Citizenship Act.

“In the event of her failure to do so, she will lose her Zimbabwean citizenship by operation of the law.”

Despite the unreasonable expectation that this matter could be resolved within two days, Judith duly applied to the New Zealand authorities as required.

But then another hurdle presented itself. The New Zealand government responded by saying that her application for renunciation could not be processed as she had never laid claim to New Zealand citizenship. In other words, they could not help her renounce what she did not have.

Her temporary passport expired in July 2003 and she was stranded in Bulawayo with no citizenship and no travel documents.

Her lawyers took the matter up with the Minister of Home Affairs, the Deputy Minister, and Permanent Secretary on the grounds that obviously the Supreme Court had erred in finding that she was a citizen of New Zealand. They were made aware of the New Zealand government’s response.

Her lawyers were then given the impression that there had been a conference of Home Affairs officials on this matter and that Mudede had been instructed by his superiors to recognise her citizenship of Zimbabwe and to issue a passport to her forthwith.

But this was not to be. Instead, Mudede’s lawyer wrote to Judith’s lawyers to state that as far as they were concerned the matter of her citizenship ended at the Supreme Court and any problems arising thereafter were not their concern.

So despite the fact that she had been caught in a bureaucratic morass, a classic Catch 22 situation, Judith was obliged to live with the consequences.

In the end the New Zealand authorities came to the rescue by issuing her with a New Zealand passport.

But what we have here is a manifest injustice to a citizen. The Supreme Court clearly misdirected itself in declaring Judith to be a New Zealand citizen when she was not. The lightning speed with which she was required to act was entirely unreasonable and, it might be added, in marked contrast to the snail’s pace operations of the Supreme Court. One may be forgiven for thinking the time-span allotted was designed to prevent her from fulfilling the ruling.

In pointing out that they could not help her renounce a citizenship she never possessed the New Zealand authorities identified the obvious shortcoming in Zimbabwe’s legislation and, indeed, in the judicial ruling.

Many other embassies and high commissions in Harare adopted a similar view thus casting former Zimbabwean citizens into a legal no man’s land where they became stateless.

This was clearly the intention. As a result over a million people lost their citizenship and thus their right to vote in the 2002 presidential poll. It was clearly the duty of the judicial/administrative system to correct its error, once it became apparent, and grant Judith the citizenship to which she was entitled by birth.

Her birthright had been stolen from her by the state. Her father, by the way, was placed on a list of people expressly not allowed to vote despite the fact that he had been a Zimbabwean Senator as well as a former prime minister with a record of support for majority rule.

There is an unhealthy perception taking root in this country that the Supreme Court sees its duty as upholding the decisions of the executive rather than extending to individuals the relief to which they are entitled by constitutional right.

If that view persists the very foundation of a law-based society will be undermined because confidence in the judiciary will erode.

Judith Todd’s case is symptomatic of the failure of the justice system to protect individuals from a predatory state intent on depriving them of their rights. That is the sorry reality today.

We have in this country a fine record of senior judges unimpressed by the pretensions of the state and prepared to do their duty by affirming the rights of applicants appearing before them. JR Dendy Young (later Chief Justice of Botswana), Enoch Dumbutshena, and Anthony Gubbay come to mind.

On the other hand there have been those who saw their duty as adopting the perspectives of the government of the day. Chief Justice Hector McDonald falls squarely unto that category given his record of helpful rulings in the 1970s.

I have no doubt in my mind that posterity will respect judges who are unafraid of executive power and exercise their authority on behalf of powerless individuals who insist upon the upholding of their rights. That is their duty and we expect nothing less from them.

Meanwhile, one of the first tasks of a democratic government must be to restore citizenship to all those who have been so unjustifiably deprived of it for manifestly partisan purposes.

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