Source: All Africa
Women married under Chapter 5.11 of the Marriages Act can now retain their maiden names and be allowed to acquire birth certificates for their children without hassles.
Harare lawyer Mr Lawman Chimuriwo and his wife Ms Cynthia Aufi last month filed a constitutional application challenging the policy, saying it was unconstitutional.
Before the case was heard, the RG's Department, through its lawyers, instructed its Gweru office to issue the birth certificate.
Despite the issuance of the birth certificate, the family's lawyer Advocate Thabani Mpofu, maintained that he was pursuing the case for the Supreme Court to declare the policy unconstitutional for the benefit of the whole nation.
"As far as I am concerned, we are not withdrawing the Supreme Court application. I am actually preparing heads of argument for filing at the Supreme Court in respect of the matter," said Adv Mpofu.
He said his client would not withdraw the application despite the issuance of the birth certificate.
"What prompted the filing of this application was the existence of an unlawful policy. There is no indication that the policy has been done away with.
"That being the case, there is still something for the court to determine. A constitutional application by its nature carries issues of public interest and the court should make a ruling for the benefit of the nation," said Adv Mpofu.
"Take notice that the first and second respondents (Registrar of Birth and Deaths and the Gweru District Registrar of Births) intend to oppose this application on the grounds set out in the affidavit and documents to be filed shortly . . . "
Both Mr Chimuriwo and his lawyers confirmed they had not received the RG's response to the application.
Tavonga was born on June 4, 2011 in Gweru and his mother Ms Aufi stated in the court application that she was asked to first change her maiden surname to that of her husband as a condition for her to obtain a birth certificate for her son.
According to the couple, officials at the RG's Office informed them that the issue of relinquishing the maiden name was a policy from the RG.
That did not go down well with the couple resulting in them filing a constitutional application challenging the policy.
According to their application, there was no law in Zimbabwe that supported the policy and that it was in breach of certain provisions of the Constitution of Zimbabwe.
The couple, married under the Marriages Act Chapter 5:11 argues that the policy is not supported by any law and that its son should not be deprived of his right to identity in Zimbabwe.
It is their argument that the change of the mother's name was not an obligation at law although it was her entitlement as a legally married woman. The mother, armed with her identity particulars and the child's birth record, went to the Registrar-General's Office in Gweru to obtain the boy's birth certificate.
The officials refused to help her, ordering her to first relinquish her maiden name before obtaining the birth certificate.
The officials told her they were following a directive by the RG compelling all women married under Chapter 5:11 of the Marriages Act to revoke their maiden names.
Mr Chimuriwo, in his affidavit, argued that the RG had no powers to withhold his son's identity over a policy that has no legal backing.
"Respondents (RG and the Gweru office) do not have the equitable jurisdiction to withhold the minor child's identity on the basis of a policy position that does not enjoy the support of the law," said Mr Chimuriwo.
He added that the denial of a birth certificate would also translate to the denial of other rights such as free movement.
Mr Chimuriwo argues that such deprivation constituted inhuman treatment to the child.
"Every human being is entitled to a name recognised and accepted as such under the formal State framework. The refusal to formalise the fact of the name is inconsistent with the child's humanity. Put differently, such refusal constitutes inhuman treatment and is in contravention of section 15 (1) of the Constitution of Zimbabwe."
"This is for the simple reason that the idea of a name is inseparable from the idea of humanity. I have not known of a human being who has no name," he said.
Ms Aufi says she does not believe that any of the respondents has the right to require that she renounce her maiden name as "a quid - pro - quo for the registration of my child's birth."
"Registration of birth is not a commodity that can be acquired upon parting with consideration. My own husband has not required that I renounce my name. As a matter of fact I am not willing to," she said.