MAVANGIRA J:
This matter was heard on 24 March 2011. On 31 March 2011 this court issued an
order in the following terms:
“IT IS DECLARED THAT:
1. The applicant
is a citizen of Zimbabwe by birth in terms of section 5 of the Constitution of
Zimbabwe.
2. The
provisions of section 9(7) of the Citizenship of Zimbabwe Act, Chapter 4:01
insofar as it relates to citizenship by birth, are ultra vires the powers the powers vested in the Parliament of
Zimbabwe in terms of section 9 of the Constitution of Zimbabwe and are in
consequence of no force and effect.
ACCORDINGLY IT IS ORDERED THAT:
1.
The first respondent shall within 14 days of the date
of this order renew the applicant's Zimbabwe passport.
2.
The first respondent shall pay the applicant's costs of
suit.”
The following
are the reasons why this court granted the relief sought.
The
facts of this matter are that the applicant's father was born in Mozambique in
1941. He came to Zimbabwe in about 1955 when he was still young and lived most
of his life in Zimbabwe. At some stage he became a citizen of Zimbabwe. He died
in Harare on 8 February 2008
The
applicant's mother was born in Zimbabwe. She was a citizen of Zimbabwe by
birth. She lived all her life in Zimbabwe and died in Harare on 18 April 2008
The
applicant was born in Zimbabwe on 29 April 1967. He is the holder of a Zimbabwe
National Identity document. On 19 June 2000, the applicant was issued with a
Zimbabwe passport on the basis that he was a Zimbabwean citizen. The passport
expired on 18 June 2010 when the applicant was in Canada where he is living and
working. Before its expiry the applicant submitted an application form to renew
his Zimbabwe passport. He submitted the form to the first respondent through
the Zimbabwe Embassy in Canada. The first respondent has refused to grant the
application for a renewal.
The
first respondent's reasons for adopting the stance which he has taken with the
applicant may be summarised as follows. Firstly, he argues that contrary to
section 9 (1) of the Citizenship of Zimbabwe Act, [Chapter 4:01], the applicant
was a dual citizen of Zimbabwe and Mozambique and that as a consequence, and in
terms of section 9 (7) of the Act, the applicant has lost his Zimbabwe
citizenship. Secondly, he argues that before the applicant is entitled to apply
for a new Zimbabwe passport, he has, in the first instance, to renounce
Mozambique citizenship in terms of Mozambican law. Then, in accordance with the
provisions of section 14 (1) (b) of the Act, he has to apply to the second
respondent to be restored as a Zimbabwe citizen in terms thereof. Furthermore,
that in this instance the applicant will have restoration of citizenship by
registration and not by birth. The applicant, it is argued, will suffer no
prejudice by being a citizen of Zimbabwe by registration rather than by birth.
Only if and when the said application is approved will the first respondent
recognise the applicant as a citizen of Zimbabwe.
The
first respondent's third argument appears to be that the law relating to
citizenship which applies to the applicant's case is that contained in Chapter
II of the Constitution of Zimbabwe as set out in the Schedule to the Zimbabwe
Constitution Order (SI 1979/1600) as amended but only up to and including
Constitution Amendment No. 14 of 1996). The first respondent would appear to
consider that in dealing with the applicant's case, the provisions of
Constitution Amendment No. 19 (Act 1 of 2009) are not relevant. The first
respondent appears to imply that if the applicant becomes a citizen of Zimbabwe
again, he concedes that he would be obliged to issue the applicant with a new
Zimbabwe passport.
Initially,
Mrs. Chimbaru for the respondents
made detailed submissions in line with the above summary, in opposition of the
application. Her submissions were also in line with the heads of argument filed
on behalf of the respondents. She highlighted that despite his protestation and
claims to the contrary, the applicant is a citizen of Mozambique and that as he
had not proved that he had renounced his Mozambican citizenship he had fallen
foul of Zimbabwean law which prohibited dual citizenship. She submitted that he
had therefore, by operation of law, lost Zimbabwean citizenship. As a result,
the first respondent was entitled to refuse to renew his Zimbabwe passport on
the ground that he also held Mozambican citizenship by descent, which
citizenship he had not renounced. However when the court asked her to make
submissions regarding the effect of this court's decision in Ricarudo Manyere v Registrar General of
Citizenship and Minister of Home Affairs HH87/2002, a matter in which the
facts are on all fours with the facts of the present matter and which was cited
in the applicant's heads of argument, she readily conceded that the opposition
mounted by the respondents in this matter cannot be sustained.
The
court was of the view that the concession, though belated, was properly made.
The following are the reasons why the court was of the view that the concession
was properly made and further to that, that the applicant had laid sufficient
basis to justify the granting of the order which he sought and which the court
proceeded to grant soon after (a few days after) the hearing. It needs to be
mentioned that the applicant's heads of argument have been most useful to the
court in the articulation of the justification for the granting of the order
which this court granted on 31 March 2011.
In
Citizenship Law in Africa: A Comparative
Study, by Bronwen Manby, it is stated that the term “citizenship” in law
denotes a legal bond between an individual and the State in which the State
recognises and guarantees that individual's rights. It is stated that the most
common rights of citizenship are the right to permanently reside within the
State, the right to vote, the right to be elected to public office, the right
to freedom of movement within and outside the State, which includes the right
to a passport issued by the State, and the right to diplomatic protection by
the State.
In
general terms the concept of Zimbabwe citizenship is set out in section 4 of
Chapter II of the Constitution of Zimbabwe as amended, up to and including the
last amendment which was Constitution Amendment
No. 19 (Act 1/2009) as follows:
“Zimbabwe Citizenship
(1) There is common Zimbabwean citizenship and all
citizens are equal, that is to say citizens are entitled, subject to this
Constitution, to the rights, privileges and benefits of citizenship and are subject
to the duties and obligations of citizenship.
(2) It is the duty of every Zimbabwean citizen -
(a) to observe
this Constitution and to respect its ideals and institutions; and
(b) to respect the national flag and the national
anthem; and
(c) to the best of his or he ability, to defende
Zimbabwe in time of need.
(3) Every Zimbabwean citizen is entitled to the
protection of the State wherever he or she may be.
(4) Zimbabwean citizenship may be acquired by birth, descent
or registration.
[Section substituted by section 3 of Act No.1 of 2009
(Amendment No.19]
Section
9 (1), (2) and (7) of the Citizenship of Zimbabwe Act states:
“Prohibition of dual citizenship
(1) Subject to this section, no citizen of Zimbabwe who
is of full age and sound mind shall be entitled to be a citizen of a foreign
country.
(2) A citizen of Zimbabwe of full age who, by
voluntary act other than marriage, acquires the citizenship of a foreign country
shall immediately cease to be a citizen of Zimbabwe.
…………………………………….
7) A citizen of Zimbabwe of full age who -
(a) at the date of commencement of the Citizenship
Amendment Act, 2001, is also a citizen of a foreign country; or
(b) at any time before that date, had renounced or
purported to renounce his citizenship of a foreign country and has, despite
such renunciation, retained his citizenship of that country;
Shall cease to be a citizen of Zimbabwe six months
after that date unless, before the expiry of that period, he has effectively
renounced his foreign citizenship in accordance with the law of that country
and has made a declaration confirming such renunciation in the form and manner
prescribed.
[Subsection substituted by Act 12 of 2001.]
From
a reading of this section, it appears that all persons affected by the
provision had the period from 6 July 2001 to 6 January 2002 within which to
renounce their alleged foreign citizenship, after which period they would cease
to be a citizen of Zimbabwe by operation of law. Non compliance with section 9
(7) would result in being classified as a non-citizen and thus an alien.
Section 2 of the Immigration Act defines the word “alien” as “a person who is
not a Zimbabwe citizen.” A reading of the section also makes it dear that it
applies only to those people who are in actual fact citizens of a foreign
country and not to people who may have some potential claim to foreign citizenship
but who have taken no steps to take up that potential claim. This
interpretation has already been made/stated/enunciated by this court in a
number of cases which I will shortly refer to.
In
casu the first respondents' stance is
that because one of the applicant's parents, his father, was born in a foreign
country, the applicant has to renounce foreign citizenship in order to retain
his Zimbabwe citizenship, even though he has taken no voluntary or active steps
to acquire such foreign citizenship. The first respondent has been brought
before these courts in a number of cases in which the applicants were aggrieved
after the first respondent made decisions on the basis of this same
interpretation. The following are some of such cases.
In
Morgan Tsvangirai v Registrar-General and
Ors HH 29/2002 ADAM J stated at p 50 of the cyclostyled judgment:-
“The first
respondent, if he is demanding from Zimbabwe her citizen, or both of whose
parents were born in a foreign country that they renounce their foreign citizenship,
then he is flagrantly acting ultra vires
s 3(2) of the Citizenship of Zimbabwe Act. His conduct would certainly be
unlawful”
In Ricarudo Manyere v Registrar General of Citizenship and Minister of
Home Affairs (supra) the
applicant's father had also been born in Mozambique. The facts in that matter
are virtually identical to the facts of the instant matter. The first
respondent raised therein the same arguments as he has raised in casu. The court rejected them all.
OMERJEE J stated at pp3-4 of the cyclostyled judgment:
“He (the first
respondent) then goes on to say that the applicant is a Mozambican citizen by
descent and repeats that assertion three times. Mere repetition of a bald
statement does not convert it into a statement of fact, becoming as it were
sacrosanct and incapable of determination by a court”.
As
already stated, the pertinent facts in that matter are virtually identical to
the facts of this matter. OMERJEE J's judgment in that matter, as well as ADAM
J's judgment in the Tsvangirai case (supra),
are clear and extensive as to the correct legal position. Other instructive
cases include the following: Job Sibanda
v The Registrar General of Citizenship N.O. HH 3626/02; Lewis Uriri v Registrar General of
Citizenship and Anor HH 7128/03. Similar arguments by the first respondent
were also rejected in Trevor Ncube v The
Registrar General and Anor HH 7316/06 by BHUNU J who in that matter awarded
costs on the higher scale against the first respondent.
This erroneous interpretation of s
9(7) adopted by the first respondent results in a scenario where a person, in
this case, the applicant, is deprived of the only citizenship he has, thereby
rendering him stateless.
It was submitted that the provisions
of s 9 are not applicable firstly, because the applicant was not as at 6 July
2001, a dual citizen of Zimbabwe and Mozambique. Consequently, s 9(7) of the
Act did not apply to him. Secondly, the applicant has never been a citizen of a
foreign country and thus he has not breached the provisions of s 9(1) of the
Act. Thirdly, and as he had not acquired a foreign citizenship, s 9(2) of the
Act does not apply to him. On the facts presented to the court, the submissions
were found to be justified.
It was also submitted before this
court that the concept of citizenship in this jurisdiction first arose in 1949
with the promulgation of the Southern Rhodesian and British Nationality Act
1949 (No. 13 of 1949). Furthermore, that there were related and similar
statutes promulgated in the United Kingdom and in other colonies of the United
Kingdom at that time. Section 6(1) and (2) of that Act was headed “Citizenship
by Birth” and it provided:
“6(1) Subject to
the provisions of sub-section (3) of this section, every person who was born
before the commencement of this Act shall on the date of commencement of this
Act become a Southern Rhodesian citizen by birth if he was born on or after the
12th day of September 1890 within the territories which at the
commencement of this Act are comprised in Southern Rhodesia.
(2) Subject to
the provisions of subsection (3) of this section, every person born in Southern
Rhodesia after the commencement of this Act shall be a Southern Rhodesian
citizen by birth”.
The next statute relating to
citizenship in this jurisdiction was the Citizenship of Rhodesia and Nyasaland
Act 1957. (No. 12 of 1957 which was promulgated during the Federation. Section
6 of that statute was in similar terms as the 1949 Act.
Thereafter came the Citizenship of
Rhodesia and British Nationality Act 1963 (No. 63 of 1963). This statute is
relevant to this particular case as the applicant who was born on 29 April
1967, was born whilst it was in force. It is therefore relevant in relation to
the provisions of s 5 of the Constitution.
Section 6 of the 1963 Act provided:
“6(1) A person
born in Southern Rhodesia on or after the date of commencement of this Act
(this, in terms of s 2, was defined as “on the date of dissolution of the
former Federation) shall be a citizen of Southern Rhodesia by birth unless –
(a) At
the time of the birth of the person his father
-
(i)
Possessed such immunity from suit and legal proceedings
as is accorded to
an envoy of a foreign sovereign power
accredited to Her Majesty; and
(ii)
Was not a citizen of Southern Rhodesia.
Or
(b) At
the time of the birth of the person –
(i)
His father was an enemy alien: and
(ii)
His mother was interned in a place set aside for the
interment of enemy
aliens or the place of the birth of the
person was under occupation by the
enemy.
(2) A person who was, immediately before the
date of commencement of this
Act –
(a) A former citizen by birth; and
(b) A
citizen of the former Federation; shall on that date become a citizen of
Southern Rhodesia by birth”.
Thereafter
came the Citizenship of Rhodesia and British Nationality Amendment Act 1967
(Act 25 of 1967). It amended s 6(1) of the 1963 Act by the insertion after para
(b) of the following paragraph:
“or
(c) At the time
of the birth of the person his father was a prohibited immigrant in
terms of a law relating to immigration in
force in Rhodesia or was not lawfully
residing in Rhodesia in terms of such law:
Provided that
if subsequent to his birth his father is accepted for permanent residence in
Rhodesia under a law relating to immigration in force in Rhodesia, he shall be
a citizen of Rhodesia by birth”.
Following thereon was the
Citizenship of Rhodesia Act 1970 which was amended in 1972 and 1973 and
published in the Revised Edition of the statutes in 1974. Section 5 of the
original 1970 Act dealt with citizenship by birth in the same manner as s 6 of
the 1963 Act as amended by the 1967 Act. However, in terms of Act 49/72, which
was incorporated into Chapter 23 of the 1974 Revised Edition of the Statutes, a
new subsection was added after s 5(1)(c) which stated:
“5(1)(d)
in the case of a person so born on or after the 12th January 1973,
at the time of his birth his father or, in the case of an illegitimate child,
his mother was –
(i)
Not a citizen of Rhodesia, and
(ii) Not ordinarily resident in
Rhodesia”
Thus up to the time of Independence,
the main criteria for citizenship was the place of birth of the person
concerned. However, in 1972, the origin and citizenship of the person's parents
at the time of that person's birth became more relevant.
With the incidence of Independence
the main laws relating to Citizenship of Zimbabwe were published as a Schedule
to the Zimbabwe Constitution Order 1979 (S.I. 1979/1600 of the United Kingdom).
[Cap 11] of the Constitution deals
with citizenship. Section 4 of [Cap 11]
of the original Constitution as promulgated in 1979 stated:
“4. A person
who, immediately before the appointed day, was or was deemed to be a citizen by
birth, descent or registration shall, on and after that date, be a citizen of
Zimbabwe by birth, descent or registration, as the case may be”.
Section 5(1) of
the Constitution as originally promulgated in 1979 provided for citizenship by
birth in respect of persons born in this country on or after 18 April 1980 in
the same manner as that provided in s 5 of the Citizenship of Rhodesia Act [Cap 23] in the 1974 Revised Edition.
This meant that the place of birth of the person concerned was still the main
criterion.
The next relevant amendment to
citizenship laws was the Constitution Amendment No. 14 (Act 14/1996) which came
into effect on 6 December 1996. The original s 4 relating to persons born
before 1980 had provisions which were the same as those relating to persons
born in the period from Independence on 18 April 1980 to 6 December 1996.
However, the original s 5 was substantially amended for persons born on or
after 6 December 1996. The relevant portions of s 5 as amended by Constitution
Amendment No. 14 (Act 1/1996) were as follows:-
“5(1) A person born in Zimbabwe on or after the
appointed day but before the
date of
commencement of the Constitution of Zimbabwe Amendment (No. 14) Act, 1996,
shall be a citizen of Zimbabwe by birth, unless …. (the remainder is as in s 5
of the original 1979 Constitution).
(2) ……………
(3) A person born in
Zimbabwe on or after the date of commencement of the Constitution of Zimbabwe
Amendment (No. 14) Act, 1996, shall be a citizen of Zimbabwe by birth if at the
time of his birth his father or his mother is a citizen of Zimbabwe”.
Thus Constitution Amendment No. 14
made the citizenship of the person's parents equally important to the place of
birth of the person concerned. For a person to be a citizen by birth of
Zimbabwe, he or she had to be born in Zimbabwe and his or her mother or father
had to be a citizen of Zimbabwe at the time of his or her birth.
The most recent amendment to the
citizenship in Zimbabwe was by Constitution Amendment No. 19 (Act 1/2009) which
came into effect on 13 February 2009. That Constitution Amendment repealed [Cap 11] in toto and substituted
it in substantially different terms. The original s 4 which stated that
citizens before 18 April 1980 were citizens after that date, does not appear in
the new [Cap 11]. In its place there
is a section which deals with the concept of citizenship and which has already
been quoted earlier in this judgment (that is s 4 of [Cap 11] of the Constitution of Zimbabwe, as amended up to and
including the last amendment, which was Constitution Amendment No. 19 (Act
1/2009)).
“Zimbabwean citizenship
(1) There
is a common Zimbabwean citizenship and all citizens are equal, that is to say
citizens are entitled, subject to this Constitution, to the rights, privileges
and benefits of citizenship and are subject to the duties and obligations of
citizenship.
(2) It
is the duty of every Zimbabwean citizen.
(a) To
observe this Constitution and to respect its ideals and institutions; and
(b) To
respect the national flag and the national anthem; and
(c) To
the best of his or her ability, to defend Zimbabwe in time of need.
(3) Every
Zimbabwean citizen is entitled to the protection of the State
wherever he or she may be.
(4) Zimbabwean
citizenship may be acquired by birth, descent or registration.
[Section substituted by section 3 of Act No. 1 of 2009
(Amendment No. 19)]
Section
9 (1),(2) and (7) of the Citizenship of Zimbabwe Act states:
“Prohibition of dual citizenship
(1)
Subject to this section, no citizen of Zimbabwe
who is of full age and sound mind shall be entitled to be a citizen of a
foreign country.
(2)
A citizen of Zimbabwe of full age who, voluntary
act other marriage, acquires the citizenship of a foreign country shall
immediately cease to be a citizen of Zimbabwe.
…………………
(7) A citizen of Zimbabwe of full age
who
(a) at the date of commencement of the
Citizenship of Zimbabwe
Amendment
Act, 2001 is also a citizen of
A
foreign country; or
(b) at any
time before that date, had renounced or purported to renounce his citizenship
of a foreign country and has, despite such renunciation, retained his
citizenship of that country; shall cease to be a citizen of Zimbabwe six months
after that date unless, before the expiry of that period, he has effectively
renounced his foreign citizenship in accordance with the law of that foreign
country and has made a declaration confirming such renunciation in the form and
manner prescribed.
[Subsection substituted by Act 12 of 2001.]
The
new s 5 deals with citizenship by birth as did the original one. However, its
provisions are materially different from the original one. Section 5(1) as it
is now states:-
“5(1) Everyone born in Zimbabwe is a
Zimbabwean citizen by birth if, when he or she was born-
(a)
Either
of his or her parent was a Zimbabwean citizen; or
(b)
Either
of his or her grandparents was a Zimbabwean citizen by birth or descent”.
Thus for a person born in Zimbabwe to
be a citizen by birth of Zimbabwe, the above
subsection must be complied with.
Furthermore, this section is the sole provision in terms of which a person born
in Zimbabwe can qualify as a citizen by birth of Zimbabwe as the previous s 5
was repealed and is of no force or effect. In casu the applicant qualifies as a citizen by birth of Zimbabwe in
terms of s 5 (1)(a) in that when he was born “either of his parents was a
Zimbabwean citizen”. The undisputed facts are that when he was born his mother
was a Zimbabwean citizen.
The
first respondent referred in his opposing affidavit and attached a copy of
the provisions of s 5(a)(ii) of the
Constitution. He states that this is the relevant provision of the law in
relation to this case and contends that it has not been complied with by the
applicant. However, that provision was repealed by Constitution Amendment No.
19 of 2009 and therefore of no force or effect. The first respondent's stance
is thus without any legal basis and cannot prevail.
The
following submission also made in the applicant's heads of argument is
instructive. The preamble to the Citizenship of Zimbabwe Act 1984 contains the
provisions of ss 4, 5, 6 and 7 of the Constitution as at 18 April 1980. These
sections have since been repealed and substituted in the Constitution itself.
The preamble to the 1984 Act is therefore out of date and I would venture to
suggest may require up-dating especially in view of the provisions of s 6 of
the Interpretation Act, [Cap 1:01]
which provides:
“6. The preamble to an enactment and any punctuation
in an enactment shall form part of the enactment and may be used as aids to the
construction of the enactment”.
With
regards the declaration in para 2 of the order granted by this court as quoted
earlier in this judgment, the applicant's heads of argument have been again of
great assistance in the articulation of the reasons warranting the granting of
the same. This is the declaration that the provisions of s 9(7) of the
Citizenship of Zimbabwe Act are ultra
vires s 9 of the Constitution.
Section
27(1) of the 1949 Citizenship Act provided as follows:-
“A
Southern Rhodesian citizen who is a citizen by registration or a neutralized
person shall cease to be a Southern Rhodesian citizen if he is deprived of his
citizenship by an order made under this section…..”
Then,
a citizen by birth of Southern Rhodesia could not be deprived of his or her
citizenship. Even then, in the case of citizenship by registration or
naturalization, the section required that prior notice be given and an
opportunity afforded to the person concerned to make representations to a
judicial body, the High Court, against the action which was proposed to be
taken against him. Sections 27(5) and (6) of that Act provided:-
“27(5) Before making an order under this section the
Governor shall cause to be served on the person against whom an order is
proposed to be made a notice in writing informing him of the ground on which it
is proposed to be made and of his right, upon making application therefor in
the prescribed manner, to have his case referred for enquiry.
(6) If the person against whom the order is proposed
to be made applies in the prescribed manner for an enquiry, the Governor shall
refer the case for enquiry and report, in accordance with the rules of court,
to the High Court”.
The
1957 Citizenship Act also only allowed for deprivation of citizenship if the
person concerned was a citizen by registration or naturalization not by birth.
Section 27(1) of the 1957 Act was in similar terms to s 27(1) of the 1949 Act.
As with the 1949 Act, s 27(4) and (5) provided that prior notice had to be
given and an opportunity afforded to the person concerned to make representations
to a Commissioner who had to be qualified as a judge or senior advocate allowed
for deprivation of citizenship if the person concerned was a citizen by
registration or naturalization, not by birth. This was provided for in s 18(1)
of the Act. Section 18(4) and 18(5) was similar to s 27(4) and (5) of the
previous Act. However, the 1963 Act introduced a provision which was not in
existence before. Section 23 provided as follows:-
“A citizen of Southern Rhodesia of full age and
capacity who, while outside Southern Rhodesia, by some voluntary and formal
act, other than marriage, becomes a national of a foreign country shall
thereupon cease to be a citizen of Southern Rhodesia”.
As submitted by Mr Elliot, “citizenship” in the above
section was not qualified and must therefore have inclined citizenship by
birth. However, for a person to lose citizenship, the person had to be outside
the country and become a foreign citizen by “some voluntary and formal act,
other than marriage”.
In the 1970 Citizenship Act s 15 (s
16 in the 1974 Revised Edition) only allowed for deprivation of citizenship in
the ease of citizenship by registration. Section 15(3) and (4) contained
similar provisions as in previous Acts regarding the right to notice and to be
heard by a judicial body. Section 16(1)(a)(b) provided for deprivation of
citizenship if a person was declared a prohibited immigrant or was deported but
this could only have related to citizenship by registration. There was no power
given to the Minister to deprive a citizen by birth of citizenship except in
terms of s 16(1)(c) which was in the same terms as s 23 of the previous Act.
At Independence Citizenship laws were
elevated from an Act of Parliament to the Constitution. I would agree with Mr Elliot that this signified the
importance of citizenship. Section 9 of the 1979 Constitution stated:-
“(9) An act of Parliament may make provision, not in
consistent with this Chapter, in respect of citizenship and, without prejudice
to the generality of the foregoing, for-
(a)
……..
(b)
Subject to the
provisions of s 8 (which provided for dual citizenship) and provided that a
person shall not thereby be rendered stateless –
(i)
the circumstances in which a person who
is a citizen of Zimbabwe, other than by birth, and who becomes a citizen of
some other country or person who is a citizen of some other country and who
becomes a citizen of Zimbabwe shall cease to be a citizen of Zimbabwe.
(ii)
depriving any
person, other than a citizen by birth or descent, of his citizenship of
Zimbabwe; and depriving any person, other than a citizen by birth or descent,
of his citizenship of Zimbabwe; and
(c)
the renunciation
by any person of his citizenship of Zimbabwe”
Thus in terms of the
above provision, a citizen by birth of Zimbabwe could not, under
any
circumstances, be deprived of his or her right to citizenship.
In
terms of s 3 of the Constitution Amendment Act No….. (Act 1/2003, the original
s 9 was repealed and substituted by a new s 9 which stated:-
“(9) Notwithstanding the provisions of this Chapter,
an Act of Parliament may make provision in respect of citizenship and, without
prejudice to the generality of the foregoing, may provide for-
(a)
the acquisition
of citizenship of Zimbabwe by persons who are not eligible or who are no longer
eligible to become citizens of Zimbabwe under this Chapter;
(b)
the circumstances
in which a person may cease to be a citizen of Zimbabwe.
(c)
the deprivation
of any person of his citizenship of Zimbabwe;
(d)
the renunciation
by any person of his citizenship of Zimbabwe:
Provided that no such law shall provide for the
cessation by, or deprivation of, any person of his citizenship of Zimbabwe
where such person is a citizen thereof by birth except on the grounds that he
is or has become a citizen of some other country.
This
provision introduced a significant amendment of the citizenship laws in
Zimbabwe as it specifically empowered Parliament, for the first time, to pass a
law to provide that a citizen by birth could be deprived of citizenship but
that this was only limited to “on the grounds that he is or has become a
citizen of some other country”.
Following
the 1983 Constitutional Amendment, a new Citizenship of Zimbabwe Act was
promulgated by Act 23 of 1984 and in terms of the 1984 Revised Edition of the
statues became [Cap 4:01]. Section 9
of that Act is headed “Prohibition of dual citizenship”, subsections (1) and
(2) of section 9 of the Act have remained in un-amended and state as follows:
“9(1) Subject to this section, no citizen of Zimbabwe
who is of full age and sound mind
shall be entitled to be a citizen of a
foreign country.
(2) A citizen of Zimbabwe of full age who, by
voluntary act other than marriage,
acquires
the citizenship of a foreign country shall immediately cease to be a citizen
of Zimbabwe”.
The original s 9(7) stated as
follows:-
“9(7) A
citizen of Zimbabwe of full age who on 1 December, 1984, is also a citizen of a
foreign country shall cease to be a citizen of Zimbabwe one year after that
date unless, on or before the expiry of that period, he has renounced for his
foreign citizenship in the form and manner prescribed”.
The
form and manner which was prescribed provided for renunciation in terms of
Zimbabwe law. In Carr v Registrar-General 2000(2) ZLR 433(5), the Registrar General
argued that in order to effectively
renounce a foreign citizenship. This had to be done in terms of the foreign law
concerned. However the Supreme Court ruled that s 9(7) did not provide for this
and that renunciation in terms of Zimbabwe law was sufficient. Following this
decision, the Citizenship of Zimbabwe Amendment Act (12/2001) was promulgated
and came into effect on 6 July 2001. Section 9(7) was repealed and substituted.
The new s 9(7) which is still in force reads:-
“9(7) A citizen of Zimbabwe of full
age who –
(a)
at the date of
commencement of the Citizenship of Zimbabwe Amendment Act, 2001, is also a
citizen of a foreign country; or
(b)
at any time
before that date, had renounced or purported to renounce his citizenship of a
foreign country and has, despite such renunciation, retained his citizenship of
that country; shall cease to be a citizen of Zimbabwe six months after that
date unless, before the expiry of that period, he has effectively renounced his
foreign citizenship in accordance with the law of that foreign country and has
made a declaration confirming such renunciation in the form and manner
prescribed”
The Citizenship of Zimbabwe Amendment
Act 2003 (Act 12/2003) dealt with persons
who were born in Zimbabwe of “migrant
workers” from “SADC countries”. In terms of the Act and the regulations
published in terms thereof (S.I. 101 A/2004), these citizens were regarded as
having lost their citizenship and were therefore required to apply to “restore”
their citizenship.
In
2009 s 9 of the Constitution was repealed and substituted, as was the whole of
[Cap 11] of the Constitution by
Constitution Amendment No. 19 (Act 1/2009) which came into effect on 13
February 2009. This is the section which is now in force: It provides:-
“9. An Act of Parliament may provide
for-
(a)
the prohibition
of dual citizenship;
(b)
procedures for
the renunciation of citizenship;
(c)
the circumstances
in which persons qualify for or lose their citizenship by descent or
registration; and
(d)
any other matters
regarding citizenship”.
As submitted by Mr Elliot, this new s 9 of the Constitution
has completely overhauled the
law relating to citizenship by birth
of Zimbabwe and has restored the position to what it was prior to the
promulgation of Constitution Amendment No. 3 (Act 1/1983). The power given to
Parliament in relation to deprivation of citizenship is that contained in s
9(c) which specifically empowers Parliament to provide for “the circumstances
in which persons qualify for or lose their citizenship by descent or
registration”. There is no provision empowering Parliament to pass laws to
provide for deprivation of citizenship in the case of citizenship by birth. The
previous s 9 contained the proviso quoted earlier but the current s 9 does not
contain such or any equivalent provision.
The
current s 8 of the Constitution is headed “Citizenship and Immigration Board”.
There was no equivalent provision in the repealed s 8 which was in fact left
vacant after the original s 8, which provided for dual citizenship was repealed
by Act 1/1983. The up-to-date s 8 states in subsection (9) that an Act of
Parliament “must” provide for the establishment of a Citizenship and
Immigration Board to be responsible by registration”. It specifically does not
empower the board to revoke citizenship by birth.
Thus
a person who is a citizen by birth cannot be deprived of his or her citizenship
thereby confirming the paramount importance which the Constitution rightly
assigns to citizenship by birth. I find persuasive Mr Elliot's submission that although subsection (d) of s 9 stated that
Parliament may provide for “any other matters regarding citizenship”, this
subsection must be read in the context of the preceding subsections and cannot
be interpreted to give Parliament unlimited powers.
Another
aspect of citizenship by birth is that s 4 of the 1979 Constitution stated inter alia that a person who was a
citizen by birth immediately before 18 April 1980 was on and after that day a
citizen of Zimbabwe by birth. This section remained as it was originally until
Constitution Amendment No. 19. Section 5 of the 1979 Constitution as amended by
Act 14/1996 applies different criteria to qualify as a citizen by birth
depending on whether the person concerned was born between 18 April 1980 and 6
December 1996 and after 6 December 1996. In the [Cap 11] introduced by Act 1/2009, the previous s 4 has been
repealed and its provisions have completely disappeared. The new s 5 is the
only provision relating to citizenship by birth. It contains one Act of
criteria and its provisions apply to anyone born in Zimbabwe regardless of when
he or she was born comes within its provisions.
The
reference to Article 15 of the Universal Declaration of Human Rights is also
opposite. The Article provides:
“1. Everyone
has the right to a nationality.
2. No
one shall be arbitrarily deprived of his nationality nor denied the right
to
change his nationality.
Section 9 of the Constitution
prescribes the powers of Parliament in relation to
citizenship
and it does not empower Parliament to deprive a citizen by birth of his or her
citizenship
of Zimbabwe. I also find persuasive the submissions that the effect of s 5(1)
of the
Constitution
is that if a person fulfils the requirements set out therein, then he or she is
a citizen
by birth of
Zimbabwe. Furthermore, that the effect of s 9 as read with s 5(1) of the
Constitution is
that a person
who qualifies as a citizen by birth in terms of s 5(1) cannot be deprived, and
cannot
have been
deprived of that citizenship by default or in any other manner during his or
her
lifetime.
In the circumstances, if the above
analysis is correct, which in my view it is, then s 9 (7)
of the
Citizenship of Zimbabwe Act not only breaches the provisions of Article 15 of
the
Universal
Declaration of Human Rights, but it is also ultra
vires s 9 of the Constitution of
Zimbabwe in
so far as that provision relates to citizens by birth of Zimbabwe.
The above was
found to be sufficient justification for the granting of the order quoted at
the
beginning of
this judgment.
Zimbabwe
Lawyers for Human Rights, applicant's
legal practitioners
Civil Division of the
Attorney-General's Office, respondent's legal
practitioners