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Mudede disgraced
Ray Matikinye, The Zimbabwe Independent
January 26, 2007

http://www.theindependent.co.zw/viewinfo.cfm?linkid=11&id=9900&siteID=1

THE High Court in Harare yesterday blocked Registrar-General Tobaiwa Mudede’s bid to withdraw publisher Trevor Ncube’s Zimbabwean citizenship after counsel from the Attorney-General’s Office abandoned the case.

Ncube sued Mudede in the High Court late last year after the RG stripped him of his Zimbabwean citizenship on the grounds that his father was of Zambian origin.

In a landmark judgement regarding the Citizenship Act, High Court judge, Justice Chinembiri Bhunu ordered Mudede to restore Ncube’s Zimbabwean citizenship immediately and to renew his passport within seven days. He also ordered Mudede not to interfere with Ncube’s possession and use of his passport. Punitive costs were awarded against Mudede.

Justice Bhunu described Mudede’s conduct as "alarming" and contemptuous of his previous rulings.

Mudede lost a similar case against Ncube, publisher of the Zimbabwe Independent and The Standard newspapers as well as the Mail & Guardian in South Africa, after he attempted to seize his passport in 2005. His attorney, Sternford Moyo, described the latest bid as "repeating conduct that has taken a sinister dimension".

On Wednesday Justice Bhunu postponed the case to allow additional submissions by Moyo, who secured a sworn opinion on Zambian law from Lusaka advocate Nchima Nchito. Nchito’s submission, which states that any person entitled to Zambian citizenship and who has acquired the citizenship of another country automatically loses entitlement to claim Zambian citizenship.

"This serves to refute the contention by the RG that Ncube was Zambian. Zambia does not permit dual citizenship," said Nchito.

Mudede was represented by Virginia Mabiza who appeared with Ernest Jena, both from the Attorney-General’s office. The state lawyers abandoned the arguments by the Registrar-General after considering the position under Zambian law. They argued however that the RG and the Minister of Home Affairs — cited as the second respondents — should not be ordered to pay costs saying they had made a genuine error of law. However, Mudede’s application was dismissed with punitive costs.

Justice Bhunu in his ruling pointed out that the abandonment of the case by the Attorney-General’s office "was not an act of charity but due to compelling legal realities".

In his submission, Moyo said a punitive order by the court was necessary for the abuse of office of the type that Ncube described in his submission.

He said it was evident that Mudede had taken a position on the matter without seeking legal advice from the AG’s office, hence the AG’s office did not take responsibility in preparing the heads of argument.

Moyo also submitted that Mudede had acted without examining foreign statutes such as the Zambian law. Neither did he take into account government’s position which shows that cabinet was concerned with the requirement to file renunciations even if applicants don’t hold foreign citizenship.

"Equity demands that a party who has been compelled to approach the courts for assistance and is shown to have good grounds for invoking assistance be compensated to cover losses and costs incurred," Moyo said.

"The applicant was subjected to an unnecessary, unlawful and bureaucratic attempt to denationalise him. If you fail to do so, it might be construed as acquiescence to abuse of office by the applicant."

In his judgement, Justice Bhunu said Ncube had fully complied with the requirement by the RG’s office. "Therefore it is remiss to refuse to renew his passport on some spurious reasons."

He ruled that the attempted denationalisation was unlawful, illegal, null and void, and that it was in defiance of his December 2005 ruling following the seizure of Ncube’s passport on arrival in Bulawayo.

In a statement Ncube said he was delighted that the court had ruled in his favour, "as he had expected".

"The courts have stopped the gross abuse of power by Tobaiwa Mudede and all those who were behind this act," Ncube said.

"More importantly, this decision by the High Court makes it clear that all those Zimbabweans by birth whose parents were born outside Zimbabwe need not fear further harassment and abuse from the Registrar-General’s office regarding the legitimacy of their citizenship."

Ncube condemned the attempt to use citizenship as a tool "to fight perceived political enemies and to settle personal scores" adding that Zimbabwe now needs to ensure that its citizenship laws are progressive.

He said the ruling removed the fear of being denationalised from an estimated 1,5 million Zimbabwean citizens, whose parents are of foreign extraction.

Mudede has successfully withdrawn citizenship from activist and government critic Judith Todd among others because both her parents were citizens of New Zealand. He also withdrew the citizenship of MDC computer

wizard Topper Whitehead who was in the process of unravelling Zanu PF’s electoral rigging in the controversial 2002 presidential election.

Mudede lost a civil action against the Independent in 2004.

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