guest column Paul Kaseke
For some time now, Zimbabweans have not been able to renew their passports or obtain new ones due to what the Registrar-General’s office has termed ‘an acute shortage of passport paper’.
It almost seems like the RG’s office has become like the biblical Pharaoh, who would not let the Israelites leave Egypt.
In this edition, we explore the legal position on this matter and what the State’s obligations are in this respect.
I should start by pointing out that the Zimbabwe Human Rights Commission has already described the situation as a violation of human rights and has promised to investigate the matter.
Many people are wondering why the commission would link the passport saga to a violation of human rights. Surely, the issuing of passports for people to travel is not a basic right and seems more like a luxury.
No, that is not so. Our Constitution adequately deals with this in quite a lot of detail.
The drafters of the Constitution inserted provisions that speak to these against the backdrop of unreasonable and excessive delays by the RG’s office to issue passports in the past.
Section 35 (3) (b) of the Constitution specifically states that Zimbabwean citizens have the right to passports and other travel documents.
A passport is, therefore, not a privilege bestowed on citizens by the State; it is a constitutional right that must be issued when requested.
I should highlight that this right is not like some rights that must be realised progressively within the available resources of the State. This right must, as a matter of urgency, be realised and it will not be a defence for the State to allege that it does not have the means to achieve the realisation of that right.
The government is, therefore, compelled by our Constitution to provide these documents on request. The State’s continued failure to provide these documents is a direct violation of the Constitution.
Additionally, s66(1) (c) of our Constitution, which houses the right to movement, further states that every citizen has the right to a passport or other travel documents. The duplication of the right shows just how important the drafters of the Constitution and the citizenry that voted for its enactment view the issuing of passports.
Again, there is no qualification of the right, which leads one to conclude that the State has an ongoing and urgent duty to ensure that citizens have passports when so requested.
Passports are documents that are essential in applications for permits in other countries since the permit is usually attached to the passport. Passports are generally seen as ‘official documents issued by a government, certifying the holder’s identity and citizenship and entitling them to travel under its protection to and from foreign countries’.
This, therefore, means that without such a passport, one is not able to leave the country and enter another country.
Section 66(2) (c) of our Constitution creates an additional right; the right to leave Zimbabwe.
This right is obviously frustrated by the failure of the State to issue passports on request. Collectively, the trinity of rights I have referred to above, which I have in other instances referred to as the ‘3 -fold Passport rights’, compel the State to issue passports without delay.
Interestingly, Treasury is busy with the purchasing of cars for ministers and MPs, so the question of resources does not arise. Government is failing to prioritise and chooses instead to commit itself to fruitless expenditure while ignoring constitutional obligations.
There is no constitutional obligation to provide cars for ministers and MPs, but there are three different obligations that oblige the State to provide passports and yet the government chooses to allocate funds to non-essential matters.
Apart from the three rights I have set out, the right of dignity, which is inherent in all people resident in Zimbabwe, is also violated by a continued failure to issue passports.
The sight of long winding queues and people who are failing to access health care outside the country is nothing short of inhumane. No country should ever have its people stranded domestically because they cannot access passports that might guarantee them a chance to access better healthcare, employment or education.
Many have resorted to sleeping at the Makombe Building and this demonstrates how the actions of the State continue to violate the dignity of people, contrary to s51 of the Constitution.
Lastly, s68 of the Constitution provides for the right to administrative justice.
This right bears specific importance whenever the State is involved in the provision of bureaucratic services such as the issuing of passports and ID documents. Section 68 states that ‘every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair’.
In Kenya, where a similar constitutional right exists, the courts have, in numerous cases, held that a delay of four months in issuing identity documents is a violation of the right to prompt and efficient administrative conduct.
I have no doubt that if (and when) brought before our courts and upon a proper interpretation of s68, the conduct of the RG’s office will be deemed unconstitutional for the same reasons.
Our Administrative Justice Act also requires government to ‘act within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned’.
On all accounts, the State is failing to execute its legal obligations to issue passports in a timeous and reasonable manner.
Passports and ID documents are really basic documents and any functional State should be able to provide these. Zimbabwe cannot be open for business if we cannot get these basic rights. More importantly, government needs to learn to prioritise constitutional obligations before splurging on unnecessary and fruitless expenditure…just saying!