Zimbabwe: Rattigan and Others v. Chief Immigration Officer
Source: Zimbabwe Supreme Court
Rattigan and Others v Chief Immigration Officer 1994(2) ZLR 54(SC)
RATTIGAN AND OTHERS v CHIEF IMMIGRATION OFFICER,
ZIMBABWE, AND OTHERS 1995 (2) SA 182 (ZS)
ZIMBABWE SUPREME COURT
GUBBAY CJ, McNALLY JA, KORSAH JA, EBRAHIM JA and MUCHECHETERE JA
1994 May 26; June 13 Judgment No SC 64/94;
Cases Nos 45/94 and 92/94
Constitutional law – Human rights – Fundamental rights in terms of chap Ill of Constitution of Zimbabwe – Ambit of Section II ‘the key or umbrella provision’ under which all rights and freedoms must be subsumed – Provisions of s 11 encapsulating in general terms sum total of individual’s rights and freedoms, which may be expanded upon in ensuing ss 12-23 in Declaration of Rights.
Constitutional law – Human rights – Fundamental rights in terms of chap III of Constitution of Zimbabwe – Right to freedom of movement in terms of s 22(1) of Constitution of Zimbabwe – Embodied in provisions of s 22(l) are (i) right to move freely throughout Zimbabwe; (ii) right to reside in any part of Zimbabwe; (iii) right to enter and leave Zimbabwe; and (iv) immunity from expulsion from Zimbabwe – Having regard to nature of marriage relationship, decision of Chief Immigration Officer to prohibit alien husbands of women who are citizens of Zimbabwe from residing in Zimbabwe and from living with their wives there in conflict with s 11, read with s 22 (1), of Constitution.
Husband and wife – Marriage – Nature of marriage relationship – Marriage a juristic act sui generis, giving rise to physical, moral and spiritual community of life, a consortium omnis vitae – Duties of cohabitation, loyalty, fidelity and mutual assistance and support flow from such relationship – Marriage the most fundamental institution known to mankind – Having regard to nature of marriage relationship, decision of Chief Immigration Officer to prohibit alien husbands of women who are citizens of Zimbabwe from residing in Zimbabwe and from living with their wives there in conflict with s 11, read with s 22(l), of Constitution of Zimbabwe.
The Court affirmed the dictum in its judgment in In re Munhumeso and Others 1995 (1) SA 551 (ZS) at 556A/B-C that the upgraded status of the provisions of s 11 of the Constitution of Zimbabwe from a preamble in each of the four earlier Constitutions to a numbered section, signified that it is to be regarded as conferring substantive rights on the individual, and not merely a guide to the intention of the framers in enacting chap III of the Constitution. The Court accepted that s 11 is ‘the key or umbrella provision’ in the Declaration of Rights under which all rights and freedoms must be subsumed, and that it encapsulates the sum total of the individual’s rights and freedoms in general terms, which may be expanded upon in the expository, elaborating or limiting ensuing sections, ss 12-23. (At 186E/F-F/G, G-G/H.)
The dicta in Dow v Attorney-General  LRC (Const) 623 (CA, Botswana) at 636e-637c and 6691-670c approved and applied.
Subsection (1) of s 22 of the Constitution of Zimbabwe mandates that ‘no person shall be deprived of his freedom of movement’. Embodied in such protection are: (i) the right
to move freely throughout Zimbabwe; (ii) the right to reside in any part of Zimbabwe; (iii) the right to enter and leave Zimbabwe; and (iv) immunity from expulsion from Zimbabwe. (At 187A-B.)
Marriage is a juristic act sui generis. It gives rise to a physical, moral and spiritual community of life – a consortium omnis vitae. It obliges the husband and wife to live together for life (more realistically, for as long as the marriage endures) and to confer sexual privileges exclusively upon each other. Conjugal love embraces three components: (i) eros (passion); (ii) philia (companionship); and (iii) agape (self-giving brotherly love). The duties of cohabitation, loyalty, fidelity and mutual assistance and support flow from the marital relationship. To live together as spouses in community of life, to afford each other marital privileges and to be ever faithful, are the inherent commands which lie at the very heart of marriage. (At 188B-D.) Marriages are almost invariably entered into by parties who have deep affection for one another and who intend to devote the remainder of their lives together. Although the condition of matrimony does not, as a concept of law, make the spouses one flesh – una caro – it none the less embodies the obligations to found a home, to cohabit, to have children and to live together as a family unit. It is the most fundamental institution known to mankind -‘the first step from barbarism’ and ‘the true basis of human progress’. (At 189E/F-G.)
Taking s 11 of the Constitution of Zimbabwe in conjunction with s 22(l) and interpreting the whole generously and purposively so as to eschew the ‘austerity of tabulated legalism’, it has to be concluded that to prohibit alien husbands from residing in Zimbabwe and so disabling them from living with their wives in the country of which they (the wives) are citizens and to which they owe allegiance, is in effect to undermine and devalue the protection of freedom of movement accorded to each of the wives as a member of a family unit. (At 190H/I-I/J.)
The Court accordingly declared that the right of the applicants under s 22(l) of the Constitution of Zimbabwe to freedom of movement, ie the right to move freely throughout Zimbabwe, the right to reside in any part of Zimbabwe and the right to enter and to leave Zimbabwe, had been contravened by the decision of the first respondent not to permit their alien husbands to reside with them in Zimbabwe. (At 191A/B-C.)
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