REPORTABLE ZLR (12)

Judgment No. SC 13/05

Civil Application No. 312/01

NOMSA JONASI-OGUNDIPE v (1) CHIEF IMMIGRATION OFFICER (2) MINISTER OF HOME AFFAIRS (3) THE ATTORNEY GENERAL

SUPREME COURT OF ZIMBABWE

SANDURA  JA, ZIYAMBI JA & GWAUNZA JA

HARARE, FEBRUARY 8 & JUNE 2, 2005

S Machiridza, for the applicant

CR Mudenda, for the respondents

GWAUNZA JA: The applicant is a Zimbabwean citizen, married to one Samson Olugbenga Ogundipe, (‘Samson’) who is a Nigerian national. Samson was declared a prohibited immigrant and deported from Zimbabwe on 9 May 2001. The applicant contends that the deportation of her husband constitutes a contravention of her right to freedom of movement as enshrined in s 22(1) of the Constitution of Zimbabwe. This right has been interpreted in a long line of cases¹ to include the right of a Zimbabwean spouse to reside in Zimbabwe with her alien husband.

The applicant accordingly seeks an order in these terms:

“1. That applicant’s right under s 22(1) of the Constitution of Zimbabwe to freedom of movement that is to say the right to reside in any part of Zimbabwe has been contravened by the actions of the first and second respondents.

2. That by virtue of the Applicant’s right under s 22(1) of the Constitution of Zimbabwe to have her husband residing with her in any part of Zimbabwe:

2.1 first respondent issue to Samson Ogundipe within 30 days hereof such written authority as is necessary to enable him to travel back to Zimbabwe and to stay in Zimbabwe on the same standing as any alien who is a permanent resident.

2.2 first respondent consider Samson Ogundipe’s application for permanent residence status.

3. That the costs of this application are to be borne by the first respondent.”

The background to the matter is as follows:

The applicant met Samson in 1994. He had entered Zimbabwe on a visitor’s permit the same year. The two got married in 1996. The applicant asserts but has tendered no proof thereof, that at the time of their marriage, Samson was lawfully in Zimbabwe. In other words, it is the applicant’s submission that his visitor’s permit had been extended or renewed after the lapse of its initial period of validity. Since temporary visitors’ permits are endorsed on the visitor’s passport, all it would have taken would have been for the applicant to submit the relevant pages of Samson’s passport to prove her assertions. She has not done so and implores the Court to accept this fact on the strength of her word.

Be that as it may, the applicant now concedes that after their marriage in 1996, Samson had stayed in Zimbabwe with her, without a valid permit as required by the Immigration Act [Chapter 4:02]. It is submitted on her behalf that she and her husband had assumed, erroneously, that their marriage had regularised Samson’s stay in the country.

It is not in dispute that immigration officials came across documents pertaining to Samson’s application for a residence permit, at the office or home of a fellow Nigerian who was subsequently deported. The discovery of these papers resulted in Samson being tracked down and deported for being in the country illegally. The appellant has, it seems, decided to abandon the fiction that Samson had at some point after the marriage, gone back to Nigeria, and attempted to apply for a residence permit from there.

This, however, does not protect the applicant from the adverse inferences that the respondent urges this Court to draw from her and Samson’s deceitful conduct. The conduct translated to a letter written by the applicant to the Chief Immigration Officer, in April, 2001 and an application for a visitor’s permit signed by Samson on 9 April 2001. In both these documents, the applicant and Samson deliberately misrepresented facts – in effect lied – that Samson had gone back to Nigeria at some ungiven date, and was applying, with the support of the applicant, for a residence permit.

The true position as revealed in the papers before this Court is that Samson continued to stay in Zimbabwe despite the expiry of his visitor’s permit issued in 1994, before his marriage to the applicant. He was an illegal immigrant at the time of the marriage, and he remained in Zimbabwe illegally for five years after the marriage. Whether or not the parties truthfully laboured under the misconception that their marriage had “naturalised” Samson, the fact remained that until his deportation, no serious effort had been made by him or the applicant to obtain a residence permit for him.

Five months after his deportation, the applicant launched these proceedings. In paragraph 2.2 of her heads of argument, it is argued thus:

“Applicant submits that the deportation and endorsement of her husband’s passport infringes on her constitutional rights and negates the purpose of having a marriage …”

The applicant argues in addition that her husband “became ‘eligible’ for consideration as a prohibited person in any event after the marriage date and thus the status of a prohibited person could not attach (to him)”.

I am not persuaded by these contentions.

In the absence of any proof that Samson was in Zimbabwe lawfully at the time of the marriage, I find that he was at that time an illegal immigrant. In terms of s 14(1)(i)of the Immigration Act, [Chapter 4:02] that fact, per se, rendered him a prohibited person. The section reads as follows:

“(1) Subject to this Act, the following persons are prohibited persons –

(a) – (h) …

(i) any person who has entered or remained in Zimbabwe in contravention of this Act or a repealed Act, whether or not he has been prosecuted for such contravention”.

The relevant part of the Act is s 29(1), which provides that no alien shall enter, be or remain in Zimbabwe unless he is in possession of a valid permit or visitors entry certificate.

My interpretation of Sub-section(1)(i) above is that one does not need to be formally declared a prohibited person, for him to be one. He becomes one by the mere fact of being in Zimbabwe in contravention of the Act. In casu, the applicant’s husband was a prohibited person from before his marriage to the applicant. He remained a prohibited immigrant until the day he was deported. The endorsement of his passport merely confirmed this reality. His marriage to the applicant did not convert his status from prohibited to non prohibited person. To attain the latter status, he would still need the requisite permit. This point was stressed by this Court in Edwards v Chief Immigration Officer 2000(1) ZLR 485(S) at 487 E-F where GUBBAY CJ quoted, with approval, the following passage in the High Court case involving the same parties(HB 107/96):

“In the absence of authority to the contrary, I find that marriage, per se, does not entitle an alien wife of a Zimbabwe citizen to reside in the country without the relevant permit issued in terms of the provisions of the Immigration Act and Regulations”.

The alien wife in the Edwards case was, like the applicant’s husband in casu, a prohibited person in terms of s 14 of the Act.

In the same judgment, the learned Chief Justice addressed the same argument being advanced by the applicant, that is, that as a spouse, her husband was protected from being declared a prohibited person by virtue of s 15(2) of the Immigration Act. The learned Chief Justice stated as follows at page 489 E-F:

“It is implicit that s 15(2) classifies persons or classes of persons who are not regarded as prohibited persons under s 14. Thus the actuality of being a prohibited person at the date of her marriage to a citizen of Zimbabwe effectively disqualified the appellant from becoming a non-prohibited person under para (d) to s 15 (2) of the Act. A contrary interpretation would give rise to the ability of a prohibited person to evade the restriction against entry or removal from Zimbabwe by marriage to a Zimbabwean citizen”.

It is contended for the applicant that the case at hand is distinguishable from Edwards’ case. I do not agree. As long as it is accepted that in casu the applicant’s husband was a prohibited person at the time of his marriage to her, the case is not distinguishable from Edwards’ case, supra.

What has to be determined now is whether the fact of her husband being a prohibited immigrant has the effect of negating the applicant’s entitlement to have him reside with her in Zimbabwe. In other words how are the State’s interests in deciding who does or does not stay within its borders, to be balanced against the constitutional right of a Zimbabwean citizen’s right to freedom of movement, in particular the right to have her spouse reside with her in Zimbabwe.

This is a matter that this Court has already had occasion to address. (See Kenderjian v Chief Immigration Officer 2000 (1) ZLR 697 (S), Edwards v Chief Immigration Officer supra and Bhatti & Anor v Chief Immigration Officer & Anor 2001 (2) ZLR 114(H)).

The following passage in Bhatti’s case (supra) at p 123 F is in my view particularly instructive:

“To hold that aliens absolutely cannot be deported from Zimbabwe if they are married to, or are children of, citizens is to completely ignore the complex relationships and responsibilities that both national and international law impose on the aliens themselves, the States of origin and residence and the citizens of the State of residence, which one learned author has expressed thus:

‘The admission of aliens into a State immediately calls into existence certain correlative rights and duties. The alien has rights to the protection of the local law. He owes a duty to observe that law and assumes a relationship towards the State of his residence sometimes referred to as ‘temporary allegiance’.

The State has the right to expect that the alien shall observe its laws and that his conduct shall not be incompatible with the good order of the State and of the community in which he resides or sojourns. It has the obligation to give him that degree of protection for his person and property, which he and his State have the right to expect under local law, under international law, and under treaties and conventions between his State and the State of residence. Failure of the alien or of the State to observe these requirements may give rise to responsibility in varying degrees, the alien being amenable to the local law or subject to expulsion from the State, or both, and the State being responsible to the alien or to the State of which he is a national”: Hackworth, Digest of International Law (1943), vol 5 pp 471-472 quoted in Dixon & McCorquodale, Cases and Material on International Law, Blackstone Press Ltd, London, 1991 p 428”.

It is submitted for the respondent that the applicant’s husband was declared a prohibited immigrant and deported because he had defied the laws of the country by staying for a period in excess of five years without a valid residence permit. He, in other words, breached the duty imposed on an alien to observe the laws of his host country and conduct himself in a manner compatible with the good order of the State. I am satisfied his conduct constituted a threat to public order.

As indicated, it is the State’s interests in the light of such conduct that must now be balanced against the applicant’s entitlement to have her husband stay with her in Zimbabwe. In arguing against the applicant’s entitlement, it is contended for the respondent, correctly, that the right to freedom of movement is not absolute, since it is subject to the public interest limitations stipulated in paragraph (a) of s 22(3) of the Constitution, so long as these restrictions are reasonably justifiable in an democratic society.³ Specifically, the applicant’s right to reside with her foreign spouse must be balanced against the public interest considerations that dictated the deportation of her husband. (See Bhatti’s case, supra.)

This principle was re-stated in more categoric terms in Kenderjian’s case (supra) where it was stated as follows at page 701 E-F:

“The removal of prohibited persons – which one can understand as being considered necessary in a situation as serious as this one – is a prerogative of the State. It is my belief that the restriction upon the use of such prerogative by the rights safeguarded under s 22 of the Constitution, should only be sanctioned in well defined cases. This is not one of them. A contrary decision by this Court would set a dangerous precedent in which the existence of a genuine marriage to a citizen of Zimbabwe could be relied upon to place an alien guilty of committing the most serious of crimes beyond the reach of the immigration authorities.”

Even though the applicant’s husband did not commit a ‘most serious’ crime – indeed he was not even prosecuted – I am satisfied the principle applies with equal force in casu. I say so because, in my view, his conduct was aggravated by the actions of his wife, who is the applicant. By the same actions, which, I find, invite some censure, the applicant also jeopardized her chances of succeeding in this application. Instead of encouraging her husband to go back to Nigeria and submit his application for a residence permit from there (thereby submitting himself to the law), the applicant actively and knowingly aided and abbetted him in his continued defiance of the law. When discovery was imminent, she sought to mislead the authorities by creating, through the letter already referred to, the fiction that Samson was properly applying for a residence permit from outside Zimbabwe. Her actions were therefore no different from those of one who seeks to defeat the ends of justice.

Having realized the futility of trying to circumvent the law, the applicant now turns to the same law for relief that in effect would restore to her husband the same privilege - that is, residency in Zimbabwe - that he had with her help, illicitly enjoyed before he was deported. It does not in my opinion, augur well for the maintenance of law and public order that citizens feel they can on one hand exhibit disdain for the law and on the other and when it suits them, turn back to the same law to seek protection of their rights. In the case at hand, I have no doubt that but for her dishonest conduct, and barring any other undesirable circumstances, the applicant’s efforts to secure her husband’s lawful residence in Zimbabwe would have stood a better chance of success.

When the law as outlined above is applied to the circumstances of this case, I find that the scales tilt in favour of considerations of public interest. Like in the Kenderjian’s case, the State in casu exercised its prerogative to remove a prohibited immigrant from the country. On the basis of that authority, I am not persuaded this case is one that is so “well defined” as to justify restriction on the use of such prerogative, by the rights safeguarded under s 22 of the Constitution.

The application must therefore, on that ground, fail.

The respondents made a half hearted attempt to oppose the application on the ground that the marriage of the applicant and her husband was one of convenience. However the evidence used to support this allegation is the same evidence that the respondents knew, and the Court has accepted, to be false. The applicant has admitted she and her husband stayed together as man and wife for five years after their marriage under the supposed mistaken belief that the marriage had legalised his stay in Zimbabwe. This effectively removes the basis of the respondents’ assertion that by her admission, the applicant and her husband had never stayed together as husband and wife, and had therefore, contracted a marriage of convenience. Thus the respondents, had they been inclined to pursue this ground of objection, would not have been able to prove it.

In the final analysis, I find that the applicant has failed to prove her case.

Accordingly, the application is dismissed with costs.

SANDURA  JA: I agree.

ZIYAMBI JA: I agree.

Muzangaza Mandaza & Tomana, applicant’s legal practitioners

Attorney-General’s Office, respondent's legal practitioners