EDITH ZEWELANI NAWAKWI (Female) v THE ATTORNEY GENERAL (1991) S.J.

(H.C.)

HIGH COURT
MR. JUSTICE C, M. MUSUMALI
24TH DAY OF JUNE, 1991
1990/HP/1724

Flynote
Freedom of movement - whether passport office requires both parents' consents to include
children on passports - single parent family - recognision under Zambian Law.

Headnote
The applicant was an unmarried mother of two boys. She was aa Zambian citizen and had held
two Zambian passports. The first one, which was expired at the time she brought this action,
was No. ZA 088728 (IDI). Her two children were endorsed in that passport, although one of
them, the younger one was later deleted from it because he was issued with a travel document
in London to enable him travel alone from London to Lusaka. That travel document had since
expired, she said.Following the expiry of the first passport she applied for its renewal and the
inclusion of her children in it. She got a new passport she said, but her children were refused
to be included in it.She madesought various applications to the court.

Held:
(i) the petitioner has been unfairly discriminated against on the ground if sex
(ii) the petitioner’s children’s particulars be indorsed in her present
passport without a requirement for her to furnish fresh affidavit or
other fresh documents in respect of them,
(iii) a single parent family headed by a male or female is a recognised family unit in the
Zambian society
(iv) a passport is part of the freedom of movement and as such it is a right for every
Zambian to have one or be indorsed in one unless there is a valid legal excuse barring
such possession or endorsement; and
(v) A mother of a child does not need to get the consent of the father to have her child/ren
included in her passport or for him/or them to be eligible for obtaining passports or
travel documents.

For the Applicant: Mrs L. Mushota and Associates

For the Respondent Mr. E. Sewanyana - State Advocate
_________________________________________
Judgment
MR. JUSTICE C, M MUSUMALI.: delivered the judgment of the court.

This is a petition filed by the Applicant in which she is asking the court to make a number of
declarations. Those declarations are, as summarised in paragraph 12 of her said petition that:

(1) She has been and continues to be unfairly discriminated against on the ground of sex.
(2) Since she had previously furnished the Department of Passport and Citizenship with
satisfactory documentary evidence as to the personal particulars and social status of
the two children (i.e David Kayivwambile Siwakwi, born 31/7/83 at Lusaka and Mbwiga
 Mlozi Siwakwi born on 10/6/88 in London) the officers of the (said) Department are
estopped by record and past conduct from refusing the application to endorse on the
Petitioner’s new passport the personal particulars of the said children of her single
parent family.
(3) A single parent family headed by a female be recognised as a family unit in the Zambia
society.
(4) Upon the birth of a child to a single mother, the name of the father shall only be
included on the child’s birth certificate if the father is physically present at the
Registrar General’s office on the day of the Registration of the child’s birth, otherwise,
the single mother should be declared the sole guardian and custodian of the child
without undue administrative impediments.

AND such other Orders or Directions or Reliefs as shall to the court seem appropriate
for the purpose of enforcing or securing the enforcement of Articles 13 and 25 of the
(Republican) Constitution in relation to the petitioner.

(5) A passport is a right which is incidental to and consequent upon the petitioner’s
citizenship. Thus the inclusion of the petitioner’s Zambian children’s particulars on her
passport is a matter which is a natural incidence and consequence of both the
petitioner’s and the children’s Zambia Citizenship; and
(6) Consequently upon (5) the petitioner’s said children have been, are being and are
likely in the future to be hindered in their enjoyment of freedom of movement out of
and back into Zambia, otherwise guaranteed them under Article 24 of the Constitution.

She also prays for the costs of this action to be granted to her. The petition was based on the
provisions of Articles 13, 25 and 29 of the Republican Constitution:

ARTICLE 13 Provides as follows:

It is recognised and declared that every person in Zambia has been and shall continue to be
entitled to the fundamental rights and freedoms of the individual, that is to say, the right
whatever his race, place of origin, political opinions, colour, creed or sex, but subject to the
limitations contained in Article 4 (which has since been amended) and in this Part, to each and
all of the following, namely:

(a) Life, liberty, security of the person and the protection of the law;
(b) Freedom of conscience, expression, assembly and association; and
(c) Protection for the privacy of his home and other property without compensation;

And the provisions of this Part shall have effect for the purpose of affording protection to those
rights and freedoms subject to such limitations of that protection as are contained in Article 4
and in those provision, being limitations designed to ensure that the enjoyment of the said
rights and freedoms by any individual does not prejudice the rights and freedoms of others on
the public interests.

ARTICLE 25 provides as follows leaving out provisions which are irrelevant to this case:

(1) Subject to the provisions of clauses (4) (5) and (7) no law shall make nay provision
that is discriminatory either of itself or in its effect.
(2) Subject to the provisions of clauses (6) (7) and (8), no person shall be treated in a
discriminatory manner by any person acting by virtue of any written law or in the
 performance of the functions of any public office or any public authority.
(3) In this Article , the expression “discriminatory” means affording different persons
attributable wholly or mainly to their respective descriptions by race, tribe, place of
origin, political opinions colour or creed whereby persons of one such description are
subjected to disabilities or restrictions to which persons of another such description are
not made subject or are accorded privileges or advantages which are not accorded to
persons of another such description.
(4) Clause (1) shall not apply to any law so far as that law makes provisions -
(a) ------------------------------------------------------------------------------------------
(b) ------------------------------------------------------------------------------------------
(c) With respect to adoption, marriage, divorce, burial, devolution of property on death or
other matters of personal law;
(d) --------------------------------------------------------------------------------------; or
(e) Whereby persons of any such description as is mentioned in clause (3) may be
subjected to any disability or restriction or may be accorded any privilege or advantage
which, having regard to its nature and to special circumstances pertaining to those
persons or to persons of any other such description, is reasonably justifiable in a
democratic society
(5) ------------------------------------------------------------------------------------------
(6) Clause (2) shall not apply to anything which is expressly or by necessary implication
authorised to be done by any such provision of law as is referred to in clause (4) or (5)

(7) Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this Article to the extent that it is shown that
the law in question makes provision whereby persons of any such description as is
mentioned in clause (3) may be subjected to any restriction on the rights and freedoms
guaranteed by Articles ----, -----,-----,------, and 24, being such a restriction as is
authorised by Article ---(----), ----(----), -----(----), -----(----) and 24 (3) as the case
may be
(8)
------------------------------------------------------------------------------------------
---------

And Article 29 provides as follows, leaving out what is not relevant in this case:

(1) Subject to the provisions of clause (6), if any person alleges that any of the provisions
of Article 13 to 27 (inclusive) has been, is being or is likely to be contravened in relation
to him, then without prejudice to any other action with respect to the same matter
which is lawfully available, that person may apply to the High Court for redress
(2) The High Court shall have original jurisdiction -
(a) To hear and determine any application made by any person in pursuance
of clause (1);
(b) -----------------------------------------------------------------------------------------
and may, subject to the provisions of clause (8), make such orders, issue such writs
and give such directions as it may consider appropriate for the purpose of enforcing or
securing the enforcement of any of the provisions of Article 13 to 27 (inclusive)

(3) --------------------------------------------------------------------------------------------------
-
(4) --------------------------------------------------------------------------------------------------
-
(5) --------------------------------------------------------------------------------------------------
-
(6) --------------------------------------------------------------------------------------------------
-
(7) --------------------------------------------------------------------------------------------------
-
(8) --------------------------------------------------------------------------------------------------
-

In this case I heard the evidence of the petitioner only. She told the court that she is
not married; that she is a mother of two boys. Kayivwambile Siwakwi aged seven and
Mbwiza Mlozi Siwakwi aged two and a half years; that Kayivwambile was born in the
University Teaching Hospital Lusaka, and the other child in the West Minister Hospital
London. She went on and said that she is a Zambian citizen. She has held Zambian
Passports: The first one, which is now expired was No. ZA 088728 (IDI) Her two
children were endorsed in that passport, she said; although one of them, the younger
one was later deleted from it because he was issued with at travel document in London
to enable him travel alone from London to Lusaka. That travel document has since
expired, she said.

Following the expiry of the first passport she applied for its renewal and the inclusion of
her children in it. She got a new passport she said, but her children were refused to be
included in it.

She then explained that when she had the first child, in order to get his birth certificate
she was made to swear an affidavit showing that (1) she was the mother of that child
and (2) he was born out of wedlock. After that she applied to the passport office for his
inclusion in her passport.

Again she was asked to swear an affidavit similar to the one she had sworn to get the
child’s birth certificates. She swore that affidavit and had the child included in the
passport i.e the first passport.

She went on and said that she did not have any problems to include the second child in
her passport. This was because his father filled in all the relevant documents in London
and they were handed in and processed by the Zambian High Commission. She
attacked that practice because it recognises a foreign male, as was the case in this case
as the father of her second child is a Tanzanian, but refuses to recognise a Zambian
Female, who is a parent of a child.

The petitioner then explained that when she was issued the second passport, she was again
asked to swear fresh affidavit of the sort she had sworn and filed to get Kayivwambile’s birth
certificate and to have him included in the expired passport. She then drew the attention of
the passport officer who was handling her application to the presence of the details he wanted
to know about her and her children in those affidavits and in Mbwiga’s expired travel
documents, which were in the possession of that (passport) office. The officer told her that
much as he appreciated that the regulations and procedures he was enforcing were unfair to
women, there was nothing he could do about them, but follow them. Explaining the
implication of the application of those regulations and procedures to her second child it was
that she had to get the consent of the Tanzanian father to the inclusion of that child in her
Zambian passport. It meant also that she had to swear those affidavits every time she was
renewing her passport and/or whenever she had a new child as a single parent. These
procedures were lengthy, costly, discriminatory and demeaning to her, she said. She therefore
decided to petition against these procedures.

Talking about the specific forms which are used by the Passport Office she said that Form D
which is the ‘Application of children or child under the age of Sixteen Years to be added to
Passport of a Relative, is discriminatory because only the father is recognised as the legal
custodian of a child. Yet the mother of a child is the only one who will really know who the
father of the child is/was.

Maternity is the only thing that no one will question, she said. She then said that the word
"father" ”on Form D should have been used in a broader sense to indicate physical and
emotional support for the child/children, at least in the case of single parent family headed by
a woman.

The respondent did not call any witness/es). They intimated that they would only be putting in
written submissions. That was on the 21st of March 1991, no such submissions had been
received from them by this court. Mrs Mushota for the applicant sent in hers at the beginning
of May.

Upon consideration of the evidence and said submissions in this case I have found the
following facts as proved; that:

(1) The petitioner is a Zambian.

(2) She is single.
(3) She is the mother of David Kayivwambile Siwakwi and Mbwiga Mlozi Siwakwi.
(4) David will be eight years old on 31st July 1991 and Mbwiga three years old on 10th
June 1991.
(5) David’s unknown father is/was a Zambian.
Mbwiga’s unknown father is/was a Tanzanian.
I have used the words is/was because both or either of those men may/could have died
since the 21st March 1991 when the petitioner last appeared and gave evidence before
this court in this case.
(6) The Plaintiff applied for and was issued with a Zambian passport number Za 088728.
This passport was issued on 24th June 1980.
(7) On the 8th of October 1985 David’s personal particulars were endorsed in that
passport. The procedure she went through before David’s particulars were endorsed in
the said passport will be explained later in this judgment. Mbwiga’s particulars were
endorsed in the passport in London. I will also explain how that was done in the course
of this judgment.
(8) As time went on, that passport expired. The applicant then applied for a new passport
and that her two children’s particulars should also appear.
(9) She was issued the new passport No. ZB10738; but her children were endorsed in it.
(10) In order to have those children endorsed in the new passport she was asked to swear
fresh affidavits in respect of them to show their parentage.
(11) She was not keen to swear fresh affidavits.
(12) Because of her refusal to comply with the fresh affidavits requirement her children were
not and I think have not up to now been endorsed in her new passport.

In this matter it was not disputed that in order to get the birth certificate of David the
petitioner was asked by the office of the Registrar of Births, Deaths and Marriages to swear an
affidavit showing David’s parentage. That was done and the birth certificate Number
LUS/67/84 was issued. She then took that certificate to the Passport Office and applied for the
endorsing of David’s particulars in her passport. She was again asked to swear an affidavit,
identical to the one she had sworn for the birth certificate. The essence of that/those
affidavit/s was that they showed that the petitioner was the mother of the child/children and
that they were born out of wedlock. Upon production of that affidavit to the passport office,
David’s particulars were endorsed in the first passport, as already found.

As for Mbwiga, his endorsement was done in London at the Zambian High Commission with
relative ease. This is because his Tanzanian father was in attendance and filled-in all the
relevant documents.

The facts revealed by this case show that a mother of a child is not regarded by the
Government to be an equal parent to a father. The father has been made to have more say
over the affairs of a child at least in so far as the endorsement of the particulars of the child
and the issuing to a child of a passport or a travel document are concerned. This has been
done by the Government of this country through the institution of the practice of asking for a
father’s letter of consent when matters of passports and travel documents affecting children
have had to be dealt with at Passport Offices; as well as when obtaining children’s birth
certificates, at least during the life times of the fathers. This practice is discriminatory to
mothers on no other basis than the fact that they are females.

Yet the mother is the one who must have conceived and carried that child in her womb for nine
months more or less and then gone to the maternity ward to deliver. Having delivered she is
again the one with the responsibility of looking after that child through the tender stages,
feeding it and doing all the motherly chores until it gets out of its infancy. Some fathers have
had to do those chores mothers do for infants but those have been in cases where due to one
reason or the other the mother is not able to do those herself. Such situations are exceptions
to the general rule. The mother, in a normal situation, continues to perform some very
essential roles in the up-bringing of the children. The father also plays equally important
roles, if he is a responsible father. In my considered view it is not at all justified from
whatever angle the issue is looked at, for a father to treat himself or to be treated by the
institutions of society to be more entitled to the affairs of his child/ren than the mother of that
child or those children. The mother is as much an authority over the affairs of her child/ren as
the father is. There would of course be some cases where one of the parents may lose,
temporarily or forever, his/her share of that entitlement. Such a situation may arise where a
parent abandons a child or children or becomes so mentally sick that the best interests of the
child or children would dictate his/her exclusion from him/her or them. Each such case would
of course depend on its own facts.

The realities of these times have brought about another dimension to this problem of child/ren
male parentage. This case now before this court is one in point. Here the petitioner is both
the father and mother of the two children. She is an unmarried mother. She is bringing up
her two children without a husband. Now is it fair for this society to have to require of her to
have been or to be married in order for certain things to be possible to be done for her
children? The answer, in my considered view, is in the negative! It is in the negative because
firstly the reality of her situation and of many others like her, is that she has illegitimate
children; and secondly because discrimination based on genda only has to be eliminated from
our society. Men and Women are partners and not only partners but equal partners in most
human endeavours. They must thus be treated equally.

I noticed at the bottom right side of From D the words October 1963. I interpreted this to
mean that either that was the month and year when that Form came into effect or that that
was the month and year when the Form was printed or reprinted as the case may be. It may
then be argued that that form did not emanate from the Zambian Government but was one of
the colonial left-overs, which is still to be redressed by the Zambian Government. My answer
to this is that this country has been independent for more than a quarter of a century now,
and it does not need such a long time to comb public service of remnants of colonial
discriminatory practices. It is my view that this form ought to have been rectified when the
Zambian Court of Arms which it carries were put on it. So there can be no excuse for its use
in its form in independent Zambia.

Going back to the facts of this case Zambia has to accord every mother of a child, single or
married, the same powers that the father enjoys. Anything less would not be justified. The
fear that the mothers may be stealing children if they are allowed to include their young
children in their passports is a very unreasonable argument because in all honesty they are
entitled to have those children where they want them to go. One cannot steal what belongs to
oneself. It should be a matter between the father and the mother of a child to resolve as to
whether to allow a child to go to country A and not to B. If they cannot agree then one or
both of them should be free to apply to court for a solution. Such a situation would not arise
in the case of single parent.

Talking about passports, I think it is opportune to say here that the holding of a passport by a
Zambian is not a privilege. It is not a privilege because he/she has a right of movement
enshrined in the Constitution: Article 24 of the Constitution. In order to travel outside the
country a Zambian Citizen needs a valid Zambian passport or travel document. Just as they
don’t get permission from the authorities to travel from one part of the country to another, so
do they not need to get permission to travel outside the country. Since they cannot travel
outside the country without passports, they are entitled to have them, unless legal restrictions
attaching to the freedom of movement imposed by the Constitution validly apply.

During cross-examination of the petitioner, the respondent raised the question the locus standi
of the petitioner in these proceedings. Their argument appeared to have been that since she
has been issued the passport she applied for, she has no cause of action in this matter as the
aggrieved parties are her children and not herself. To this argument I have to say that since
the children in question have not yet attained maturity to be able to sue on their own and the
petitioner is a Zambian citizen she has legal standing as a petitioner in this case. In other
words she has the locus standi to sue the state or indeed any other person when she feels that
the interests of her children so dictate.

It is imperative to also say one or two things about the offices of the Registrar of Births,
Deaths and Marriages as well as the Passport Office and some of the procedures they have put
in place there. The first issue is whether or not those offices are public offices which fall under
Article 25(2) of the Constitution. My answer is that they are public offices. They are public
offices because they belong to the Zambian Civil Service i.e they are offices of the Government
of the Republic of Zambia. Article 25 Clause 3 defines the expression ‘discriminatory’ as used
in that Article. That definition does not include ‘sex’ or ‘gender’. Be that as it may it is my very
considered view that the intentions of the framers of this Constitution when they passed the
Bill of Rights (PART III) of the Constitution) could never have been to discriminate between
males and females in the way the Passport Office and its sister Department have been doing.
I have no doubt in my mind therefore that if these practices were to have been brought up to
the attention of those people who were passing this Constitution into law they would have not
sanctioned them. I am not sanctioning them either. Forms A and D of the Passport Office
have not been issued, on the basis of any legal provision. And even if they were so issued,
that law would be unconstitutional as it would be discriminatory between mothers and fathers
in matters relating to their children’s inclusion in the mothers’ passports or getting passports
or travel document, for no good reason than the fact that one is a female and the other a
male.

That discrimination is unacceptable and untenable legally or otherwise in these times of

enlightenment.

Further this court did not appreciate the logic in the refusal by the Passport Office to transfer
all details which were in the expired passport; in particular those relating to the children and
asking the petitioner to start all over again swearing affidavits. It is my considered view and I
hold that in a case such as the petitioner’s the practice of the Passport Office should from now
onwards be to renew a passport of a Zambian female with all the details and/or endorsements
which were on the expired one. Common sense dictates this approach to the one that has
been in use over all these years.

Thus when all is said and considered I find and hold that (1) the petitioner has been unfairly
discriminated against on the ground if sex (2) the petitioner’s children’s particulars be
endorsed in her present passport without a requirement for her to furnish fresh affidavit or
other fresh documents in respect of them, (3) a single parent family headed by a male or
female is a recognised family unit in the Zambian society (4) a passport is part of the freedom
of movement and as such it is a right for every Zambian to have one or be endorsed in one
unless there is a valid legal excuse barring such possession or endorsement; and (5) A mother
of a child does not need to get the consent of the father to have her child/ren included in her
passport or for him/her or them to be eligible for obtaining passports or travel documents.
Either parent has the in alienable right to be a recommender, in whatever form the
recommendation is required to be made, for the child or children. This applies to birth
certificates and passports in this country as they do to other things.

I also award the costs of this action to the petitioner!

1990