Andrew William Tashanduka Bere and The Registrar General and The Chief Immigration Officer vs Minister of Home Affairs and Cultural Heritage

### Preamble
1
HMA 35-19
HC 88-19
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ANDREW WILLIAM TASHANDUKA BERE

and

THE REGISTRAR GENERAL

and

THE CHIEF IMMIGRATION OFFICER

vs

MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE

HIGH COURT OF ZIMBABWE

WAMAMBO J.

MASVINGO, 25TH & 31st July, 2019

Opposed Matter

R. Chavi for the applicant

K. Munatsi for the respondents

WAMAMBO J:  The applicant seeks relief couched as follows: -

“1.	It is declared that Andrew William Tashanduka Bere is a citizen of Zimbabwe by birth with entitlement to dual citizenship.

2.	1st respondent is directed to issue the applicant with a regular external birth certificate, national ID, passport and marriage certificate within 21 days of the date of this order

3.	2nd respondent is to endorse in the applicant’s USA issued passport that he is entitled to remain in Zimbabwe indefinitely

4.	2nd respondent to refund the applicant the sum $1 000 paid by the applicant for the issue of a permit on 19 April 2018

5.	A party that opposes this application to pay costs. There shall be no order as to costs if the matter is unopposed.”

The applicant in his founding affidavit avers as follows: -

He was born on 23 May 1990- in Cincinnati, Ohio, United States of America and is a citizen of that country. His father is Farirai Felex Bere a Zimbabwean by birth. His father’s Zimbabwean birth certificate and identification document are attached to the application. The said documents reflect that applicant’s father was born on 4 April 1956 at Shumbayaonda Village, Ndanga, Zimbabwe. Applicant’s mother is Kathy Bere (nee Gray) who married his father on 8 July 1989 in the United States of America.

Applicant avers that he is a Zimbabwean citizen by birth flowing from the above set of facts. From the time of his birth to 2012 he has visited Zimbabwe once every year on a United States of America passport. Since 17 August 2012 he has not left Zimbabwe. He avers that the 2013 Constitution of Zimbabwe changed the law pertaining to citizenship. By virtue of section 36(2) of the Constitution he is a citizen of Zimbabwe by birth because when he was born his father was ordinarily resident in Zimbabwe. He is now settled in Zimbabwe having found a wife who he customarily married in Zimbabwe in 2013. The marriage was soon to be formalised as a marriage in terms of Chapter 5:11 on 21 April 2018. From this marriage three children were born. The marriage certificate and children’s birth certificates are attached.

In the course of his stay in Zimbabwe he has obtained a birth certificate, national identity card and passport. He was, charged, and appeared at Chiredzi Magistrates Court on allegations of contravening section 29(1)(a) of the Immigration Act (Chapter 4:02) and fraud as defined in section 136(1)(a) of the Criminal Law (Codification and Reform) Act, [Chapter 09:23]. As read from the charge sheet and state outline the charges emanate from applicant overstaying in Zimbabwe and presenting counterfeit documents namely a birth certificate, identification document and passport at Chiredzi Magistrates Court. These documents were presented to the Magistrate sitting at Chiredzi by applicant through his legal practitioner in a bail application after he was arrested pursuant to a warrant of arrest issued through INTERPOL to satisfy an extradition application made by United States of America government.

According to the state outlie an INTERPOL detective based at Interpol Offices in Harare took the above documents for verification. Anomalies were discovered. These were that the applicant’s birth certificate number ULO/25850/90 does not appear in the Registrar General’s records. Further that the identification number purportedly issued to applicant is a duplication of the one issued to one Joice Mbandeni, who was born on 16 July 1957 at Chipinge. I have to comment here that indeed the registration numbers are similar. I observe however that the last two differ. The last two numbers on Joice Mbandeni’s identification document are 83 while those for applicant are 13. Apart from that the identification document number are exactly the same.

Applicant avers that in March 2018 when he appeared before the Magistrates Court, Chiredzi for extradition purposes to the United States of America on allegations of wire fraud the Magistrate was not convinced that the extradition application was in order. He was then discharged.

The applicant makes the allegation that he suspects that there is a conspiracy between the respondents to have him deported after the extradition processes failed. He is of the view that the conspiracy is to satisfy a political or other expediency. It is however apparent that he does not add flesh to these assertions in any form.

Applicant is supported in his application by his father. The father’s status as being ordinary resident or not at the time of applicant’s birth if of fundamental importance if regard is had to section 36(2) of the Constitution.

In his supporting affidavit Farirai Felex Bere (applicant’s father, hereinafter called Mr Bere) avers as follows: -

He resides at D942 Woodpecker, Westwood, Chiredzi and also 10892 Lemarie Drive, Cincinnati, Ohio, 45241, United States of America. He is employed by City of Cincinnati as a City Planner and is a religious leader, business person and farmer. When applicant was born he was living and working in the United States of America on a temporary residence permit. He maintains homes in Zimbabwe and United States of America. He was born, raised and educated in Zimbabwe. In 1983 he taught ad Chiredzi Christian Secondary School. He owns residences in Zaka, Chilonga and Chiredzi. He is also a beneficiary of the land resettlement program having been officially availed 100 hectares of land on the banks of Lundi or Runde river.

He is a Bishop for a church called Jesus Christ Freed Church at Chilonga which church was founded in the 1950s. He visits Zimbabwe at least twice every year and has not been absent from Zimbabwe for a continuous period in excess of 5 years. He is not an American citizen but a permanent resident. Up to 2005 he has been travelling using a Zimbabwean passport.

Mr Bere makes the observation that the criminal charges applicant faces have not been finalised.

The respondents oppose the application. The 1st respondent filed an opposing affidavit wherein he avers as follows: -

He disputes that applicant is a Zimbabwean citizen by birth. He disputes that applicant’s father was ordinarily resident in Zimbabwe at the time of applicant’s birth. The United States of America embassy confirm in a document attached that Mr Bere has always been permanently resident in the United States of America since the late 1980s. Applicant faces a pending criminal case flowing from a falsified birth certificate which states that he was born at Mutare General Hospital when in truth and in fact he was born in the United States of America. The Mutare Provincial Hospital birth records do not reflect applicant as one of the babies born at the said institution on 23 May, 1990. The 1st respondent also traverses the details of the counterfeit features on applicant’s birth certificate and identity document.

He avers that applicant’s documents were provisionally cancelled on the basis that they were obtained by means of fraud.

According to the 1st respondent there is no conspiracy plot against applicant by the respondents. Applicants documents can only be regularised after the outcome of the criminal proceedings against him.

The extradition proceedings are still pending. The counterfeit documents held by applicant have not been handed over for cancellation.

Second respondent’s opposing affidavit raises the following issues: -

Because of where applicant was born and the nationality he holds he is a foreign national regulated under the Immigration Act [Chapter 4:02] in so far as his entry, exit and extending his stay in Zimbabwe is concerned. Having a Zimbabwean birth certificate and national identification document is not necessarily proof that one is a Zimbabwean resident. Documents held by applicant qualify him to be an American. Applicant entered Zimbabwe on an American passport on 20 April 2012 and lawfully extended his stay up to 17 August 2012. Thereafter he continued to reside in Zimbabwe unlawfully up to the time of his arrest on 29 March 2018. Mr Bere has not proven that he was ordinary resident in Zimbabwe when applicant was born.

Section 36(2) of the Constitution of Zimbabwe reads as follows: -

“(2)	Persons born outside Zimbabwe are Zimbabwean citizens by birth if, when they were born, either of their parents was a Zimbabwean citizen and ---

Ordinarily resident in Zimbabwe, or

Working outside Zimbabwe for the state or an international organisation”

On the issue of the court’s interpretation of the meaning of “ordinary resident” the applicant’s counsel cited mostly Canadian case law. He also cited the local cases of Whitehead v Registrar General and Others 2015 ZLR 582 (S) and Mawere v Registrar General and Others 2013 (1) ZLR 578 (CC) among others. Respondents’ counsel also cited a number of authorities among them Macrae v Macrae [1949] 2 ALL ER 34, Cohen v CLR 1946 AD 174.

I am grateful to both counsel for their industry.

Ms Munatsi for the respondent in oral argument clarified her stance as follows:-

She rests her main argument on the fact that upon an interpretation of s 36(2) of the Constitution applicant does not meet the criteria. This, because his father was not ordinarily resident in Zimbabwe when he was born. Further, that in the light of apparently forged documents, a pending criminal case, Section 39(2) of the Constitution then becomes relevant.

Section 39(2) of the Constitution reads as follows:-

(2)	Zimbabwean citizenship by birth may be revoked if –

(a)	 the citizenship was acquired by fraud, false representations or concealment of a material fact by any person, or

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Mr Chavi, for the applicant emphasised that by virtue of applicant’s father possessing only a residence permit when applicant was born this suggests that he was ordinarily resident in Zimbabwe for the reasons averred in Mr Bere’s founding affidavit.

I now proceed to determine whether as at 23 May 1990 (when applicant was born) his father was ordinarily resident in Zimbabwe. In doing so, I am placing emphasis on the provisions of section 36(2) of the Constitution.

In Rattigan & Others v Chief Immigration Officer & Others 1994 (2) ZLR 54 (S) at page 57 GUBBAY CJ said;

“What is to be avoided is the imparting of a narrow, artificial, rigid and pedantic interpretation, to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose. All relevant provisions are to be considered as a whole and where rights and freedoms are conferred on persons, derogations therefrom as far as the language permits, should be narrowly and strictly construed.”

In Government of the Republic of Namibia and Another v Cultura 2000 and Another 1994 (1) SA 407 (NMS) at 418 F – H MAHOMED CJ said;

“A Constitution is an organic instrument. Although it is enacted in the form of a statute, it is sui generis. It must be broadly, liberally and purposively interpreted so as to avoid the “austerity of tabulated legalism” and so as to enable it to continue to play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of a nation.”

Also see Minister of Home Affairs v Bickle & Others 1984(2) SA 439 (ZS). It is with the above in mind that I will interpret s 36(2) of the Constitution on the facts before me.

I have also read the matter of Farai Daniel Madzimbamuto v The Registrar General and 3 Others CCZ 5/14 which is related to this case. However, the distinction is that it involved an applicant who was born in Zimbabwe.

Both counsel however did not refer me to the local case of Chidoda v Mhangaki 1996(2) ZLR 105 (S) which is relevant to this case.

The Supreme Court was in that case grappling with the interpretation of the words “ordinarily resident”.

KORSAH JA put the issue thus: -

“One and only one issue engages attention in this case. That issue is: -, Whether the appellant was ordinarily resident in the Municipality of Masvingo for the five years immediately preceding the mayoral elections of June 1996. The circumstances out of which this question arises are simple enough,”

To reach a resolution of the issue expressed above KORSAH JA at page 113 H to 114 A said;

“To be ordinarily resident in a place there must be some degree of continuity of abode apart from incidental or temporary absence. To be ordinarily resident in a place is a matter of fact to be deduced from all surrounding circumstances: Gout v Cimitian [1922] IAC 105 at 109 – 110.

The learned Judge proceeded at page 114 F – H as follows: -

“I doubt very much whether it were possible for a person be ordinarily resident in two places at the same time, for as SOMERVELL J observed in Macrae v Macrae (2) [1949] 2 ALL ER 34 at 36.

“Ordinary residence -------- can be changed in a day. A man is ordinarily resident in one place up to a particular day. He them cuts the connection he has with that place – in this case (Macrae v Macrae (2) he left his wife, in another case he may have disposed of his house and makes arrangements to have his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home, for, at any rate, an indefinite period, as from that date he is ordinary resident at that place.”

An application of the principles as enunciated in the Chidoda v Mhangaki case (supra) leads me to the conclusion that applicant’s father was not ordinarily resident in Zimbabwe when applicant was born for the following reason:

He was married in the United States of America to an American wife.

He made a home in America. He was employed in America. He visited Zimbabwe. The frequency of visits has not been proven, however. The allegation that he was a pastor running a church, are just bald assertions without proof. He may have been allocated land to farm by the Government of Zimbabwe but his visits and involvement on that land have not been proven.

What is clear is that he has been residing, working and carrying a livelihood in America since before 1990 when applicant was born. He was to all intents and purposes settled in America.

There is more in applicant’s disfavour namely the circumstances under which he became the subject of an extradition application, the questionable birth certificate, identification document and marriage certificate.

The first respondent has clearly made out a case reflecting negatively on the applicant. The possible situation in the circumstances is that applicant may be hiding in Zimbabwe from crimes he committed in America. Transforming him into a Zimbabwean as per the relief he seeks is not advisable. The alleged falsifications of the personal documents applicant obtained in Zimbabwe has been sufficiently explained and demonstrated by first respondent. On applicant’s side he has blamed errors by possible government officials. This coming from a person who overstayed in Zimbabwe since 17 August 2012 to date.

For the above reasons I am of the considered view that the application is devoid of merit.

To that end, I make the following order: -

The application is dismissed with costs.

Ross Chavi Law Office, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, respondents’ legal practitioners