Constitutional Law re: Dual Citizenship and Citizenship by Birth, Descent or Registration

CC04-15 : MUTUMWA DZIVA MAWERE vs REGISTRAR GENERAL and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA, and CHIWESHE AJA

This is an application, filed on the basis of urgency, in which the applicant seeks a declaratur that, being a citizen by birth, he is entitled to dual citizenship and that the law does not require of him to renounce his foreign citizenship before he can be issued with a Zimbabwean national identity document. After ...

After hearing submissions from counsel, the court issued the following order:-

“It is ordered that:-

1. The applicant, Mutumwa Dziva Mawere, born 11 January 1960, is a citizen of Zimbabwe by birth in terms of Section 36(1) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013.

2. The first respondent is interdicted from demanding of the applicant to first renounce his foreign–acquired citizenship before he can be issued with a national identity document.

3. The first respondent is directed to issue the applicant with a national registration document forthwith, and, in any event, before the voter registration process being conducted by the second respondent in terms of Section 6(3) of the Sixth Schedule to the Constitution is concluded.

4. The first respondent pay the costs of this application.”

The court further indicated that the full reasons for the order would be made available in due course.

What follows are the reasons.

BACKGROUND

The applicant was born in Bindura, Zimbabwe, on 11 January 1960. Both of his parents were also born in Zimbabwe. On 10 July 2002, the applicant acquired the citizenship of South Africa by registration.

In order to register as a voter in national elections that were scheduled to take place in 2013, the applicant approached the offices of the first respondent in order to procure a duplicate national identity document, having lost the original. He was advised that for as long as he remained a South African citizen, he would not be eligible for a Zimbabwean national identity document.

It is not in dispute that prior to the enactment of the new Constitution, the law prohibited dual citizenship. In terms of the law then in operation, the applicant was required to renounce his South African citizenship before he could be eligible for Zimbabwean citizenship. Only then would he have been eligible for a Zimbabwean national identity card.

On 22 May 2013, the Constitution of Zimbabwe Amendment (No.20) Act, 2013, (“the Constitution”) was gazetted and became operational. Section 36 of the Constitution provides, in relevant part:

“1. Persons are Zimbabwean citizens by birth if they were born in Zimbabwe, and, when they were born –

(a) Either their mother or their father was a Zimbabwean citizen; or

(b)…, (not relevant)..,.”

The dispute in the present matter revolves around the interpretation to be accorded to the above provision and whether in terms of the Constitution it is now permissible for a person in the position of the applicant to enjoy both Zimbabwean and South African citizenship. Put differently, the question is whether the applicant is required to do anything more in order to qualify as a citizen.

THE APPLICANT'S SUBMISSIONS

It is the applicant's submission that citizenship by birth may only be revoked in two situations;

(i) The first is where citizenship is acquired by fraud, false representation or concealment of a material fact by any person. See section 39(2)(a) of the Constitution.

(ii) The second is where the nationality or parentage of a child found in Zimbabwe, who is or appears to be less than fifteen years of age and whose nationality and parents are unknown and is presumed to be a Zimbabwean citizen by birth, becomes known.

The applicant further submits that although section 42 of the Constitution empowers Parliament to pass an enactment prohibiting dual citizenship, such prohibition is in respect of citizens by descent or registration. Such enactment must, in any event, be consistent with the provisions of Chapter 3 of the Constitution. Therefore, the prohibition of dual citizenship for citizens by birth, whose parents were born in Zimbabwe, as provided for in section 9 of the Citizenship of Zimbabwe Act [Chapter 4:01] would be inconsistent with Chapter 3 of the Constitution, and, consequently, null and void. Had the intention been to prohibit dual citizenship in respect of citizens by birth, the Constitution would have expressly made provision for the potentiality of such prohibition in section 42(e).

The applicant further submits that contrary to submissions by the first respondent, there is no residency requirement in terms of the law for citizens by birth whose parents were born in Zimbabwe. Section 43(2) of the Constitution, in particular, applies to a person born in Zimbabwe, was ordinarily resident in Zimbabwe on the publication day and at least one of his or her parents was a citizen of a SADC member State.

THE FIRST RESPONDENT'S SUBMISSIONS

The first respondent, the Registrar-General, does not agree. His argument is as follows:-

In terms of section 43(1) of the Constitution, the applicant was not a Zimbabwean citizen before 22 May 2013 when the new Constitution came into operation. He was a South African citizen. He could not therefore have metamorphasized into a citizen by birth immediately after that date solely because of the provisions of section 36(1).

Having previously lost his citizenship, he needs to perform a formal act to have the citizenship restored to him. Such restoration can only be in terms of an Act of Parliament still to be passed in terms of section 42, which Act would prescribe the procedure to be followed by persons wishing to have their citizenship restored in terms of section 42(d) of the Constitution.

THE RELEVANT CONSTITUTIONAL PROVISIONS

Sections 35 to 43 of the Constitution deal with the question of citizenship. Amongst other things, citizens are entitled to passports and travel documents as well as birth certificates and other identity documents issued by the State. Section 35 makes it clear that citizenship is by birth, descent or registration.

As already noted, section 36 states that a person is a citizen by birth, inter alia, if such person was born in Zimbabwe to either a mother or father who was a Zimbabwean citizen.

Section 38 provides for citizenship by registration to three classes of persons. These are;

(a) Persons who have been married to Zimbabwean citizens and satisfy other conditions prescribed by an Act of Parliament;

(b) Persons who have been continuously and lawfully resident in Zimbabwe for a period of at least ten years; and

Section 39 provides for the revocation of citizenship, but only in respect of two types of citizenship.

(a) The first is citizenship by registration.

Such citizenship may be revoked if the acquisition of citizenship was through fraud, false representation or concealment of a material fact, or, during war situations, the person concerned unlawfully trades, communicates or associates with any business that is carried out to assist an enemy.

(b) The second is citizenship by birth.

Such citizenship may be revoked if it is acquired by fraud, false representation or concealment of a material fact, or, in the case of a child found in Zimbabwe who appears to be less than fifteen years of age and is presumed to be a citizen by birth in terms of section 36(3), the person's nationality or parentage becomes known and it is established that such person was a citizen of another country.

Section 42 provides for the enactment of a law, consistent with Chapter 3, providing for;

(a) The procedures to be followed in acquiring citizenship by registration;

(b) The voluntary renunciation of Zimbabwean citizenship;

(d) The restoration of Zimbabwean citizenship;

(e) The prohibition of dual citizenship in respect of citizenship by registration or descent; and

(f) Any other issues to give effect to Chapter 3.

Section 43, on the other hand, provides that every person who, before 22 May 2013, was a citizen continues to be one after that date. It also provides that any person who was born in Zimbabwe before 22 May 2013 is a citizen by birth if one or both of his parents was a citizen of a SADC member State and he or she was ordinarily resident in Zimbabwe as at that date…..,.

WHETHER APPLICANT NEEDS TO RENOUNCE HIS FOREIGN CITIZENSHIP FIRST

The first respondent's argument is that since the applicant had already lost his citizenship prior to the enactment of the Constitution, he needs to go through other procedures, to be provided for in an Act of Parliament still to be passed, in order to have his citizenship restored and that only then would he be entitled to citizenship in terms of the current Constitution, together with the benefits that citizens enjoy.

Bearing in mind that the provisions in Chapter 3 of the Constitution must be read together, one must, I think, start by looking at the language used in section 36 of the Constitution. As already noted, the section provides, in simple and clear language, that a person “is a Zimbabwean citizen by birth if he or she was born in Zimbabwe and when born either his or her mother or father was a Zimbabwean citizen.”

Section 36 is not made subject to any other section in the Constitution. It stands alone. The ordinary grammatical meaning of the section is clear and allows of no ambiguity. A person born in Zimbabwe to a parent who, at the time of birth, was a Zimbabwean citizen, is a Zimbabwean citizen. That section does not oblige a person in this category to do anything further to qualify for Zimbabwean citizenship.

Section 36(1), however, needs to be considered in the context of the other provisions of Chapter 3 of the Constitution.

Section 38 provides for citizenship by registration to persons married to a Zimbabwean citizen or who have been continuously and lawfully resident in Zimbabwe for at least ten years, and, in both cases, satisfy other conditions prescribed by an Act of Parliament. Also included in this category are children, who are not ordinarily citizens, but are adopted by a Zimbabwean citizen.

This class of citizenship becomes relevant in cases where citizenship is sought to be revoked by the State.

Section 39 deals with the circumstances in which citizenship may be revoked. Such revocation is limited to citizenship by registration and citizenship by birth in cases where such citizenship was acquired by false representation or where it is established that, a child below fifteen years of age, who is presumed, in terms of section 36(3) of the Constitution, to be a citizen by birth, is a citizen of another country.

What is significant about section 39 is that it does not provide for the revocation of the citizenship of a person who is born in Zimbabwe to a Zimbabwean parent as provided in section 36(1) of the Constitution.

Read against section 39, the necessary corollary is that citizenship acquired in terms of section 36(1) cannot be revoked by the State under any circumstances.

One must, however, go further and consider the provisions of section 42 and 43 of the Constitution. It is, I think, convenient to consider section 43(1) first.

Section 43(1) is a neutral provision which simply restates that any person who, before 22 May 2013, was a Zimbabwean citizen, continues to be a Zimbabwean citizen after that date.

Of significance is the fact that the citizenship referred to in that section is not confined to citizenship by birth only. Citizenship by descent and registration is also included. This is a savings provision, intended to put beyond dispute that any person who enjoyed any type of citizenship before 22 May 2013 would continue to be a citizen after that date and would, consequently, enjoy all the benefits of citizenship bestowed on a citizen in terms of section 35 of the Constitution.

Section 42 provides for the passing of an Act of Parliament to deal with the following:-

(a) The procedures to be followed in acquiring citizenship by registration;

(b) The voluntary renunciation of Zimbabwean citizenship;

(d) The restoration of Zimbabwean citizenship;

(e) The prohibition of dual citizenship in respect of citizens by descent or registration; and

(f) Generally giving effect to the provisions of Chapter 3 of the Constitution.

A number of observations must be made from the above provisions.

(i) First, section 42 makes it possible for Parliament to enact legislation to deal with the various aspects of citizenship itemised in that section.

(ii) Second, such legislation must be consistent with Chapter 3 of the Constitution. In other words, such legislation may not allow for the derogation of any rights conferred in terms of Chapter 3.

(iii) Third, the section makes it clear that such legislation may deal with the prohibition of dual citizenship in respect of citizenship by descent or registration only. It does not provide for the prohibition of dual citizenship in respect of persons who are citizens by birth.

(iv) Fourth, the section provides for the enactment of legislation dealing with the restoration of Zimbabwean citizenship. It is implicit that the Constitution envisages a situation where citizenship is lost but an application is then made for the restoration of such citizenship.

(v) Fifth, it is clear that citizenship can be lost in a number of situations. It may be revoked in terms of section 39 of the Constitution. It may also be the result of voluntary renunciation, as provided for in section 42(b), or the prohibition of dual citizenship in terms of section 43(e) of the Construction.

In all these situations, any affected person may apply for the restoration of Zimbabwean citizenship. An Act of Parliament will provide details on how such citizenship can be restored.

Section 42 does not, and cannot, have an overriding effect on the other provisions of Chapter 3. If anything, it complements these other provisions and is not inconsistent with them.

Consequently, on a proper reading of all the provisions of Chapter 3, the inference is irresistible that dual citizenship, in respect of citizens by birth, is not proscribed. Such citizenship exists by operation of law.

It was for the above reasons that, after hearing counsel, we made the order reflected in paragraph 2 of this judgment.

CC05-14 : FARAI MADZIMBAMUTO vs THE REGISTRAR GENERAL and PRINCIPAL DIRECTOR OF IMMIGRATION and MINISTER OF HOME AFFAIRS and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

The applicant is a citizen of Zimbabwe by birth. He initially sought a declaratory order confirming his right to a Zimbabwean passport and certain ancillary relief. He also sought an order compelling the second respondent to endorse his South African passport with an unrestricted and indefinite residence permit. THE BACKGROUND The appellant was born in Zimbabwe. One of his ...

THE BACKGROUND

The appellant was born in Zimbabwe. One of his parents is Zimbabwean by birth while the other is South African by birth. Sometime in 2003 the applicant left on a Zimbabwean passport for the United Kingdom in order to take up employment in that country. On the expiry of his passport, he attempted to get a new one through the Zimbabwean Embassy in London but was referred to Harare, the embassy no longer having the capacity to issue passports.

The applicant returned home briefly, but, due to the chaotic situation and long queues then prevailing at the passport office, he failed to submit an application for a passport. He returned to the United Kingdom where he was able to obtain a South African passport by virtue of his mother's birth in South Africa.

In mid-2012, the applicant returned home permanently. Upon presentation of his South African passport to the second respondent's officials, he was advised to apply for a residence permit, which he did. A 2-year residence, expiring on 16 August 2014, was granted to him by the second respondent.

When the new Constitution was promulgated, the applicant applied to the second respondent for his acceptance as a citizen, and, therefore, a permanent resident, by making an endorsement of his permanent residence status on his South African passport. The application was declined with the advice that the applicant should first acquire a Zimbabwean passport. On 28 October 2013, the applicant wrote to the second respondent advising that he now had a Zimbabwean passport and requesting an endorsement of his permanent residence status on his South African passport.

No response has been received to date.

THE ORDER SOUGHT

At the hearing, the Court was advised that the order initially sought against the first respondent was no longer being pursued as the applicant had been granted a Zimbabwean passport. The order now being sought is set out in the draft order produced to the Court by counsel for the applicant. It prays that:

“The applicant be and is hereby declared to be a citizen of Zimbabwe by birth with entitlement to dual citizenship;

The second respondent shall, with immediate effect, record in the Applicant's South African passport his right to unrestricted and unconditional residence in Zimbabwe.”

THE SECOND RESPONDENT'S OPPOSITION

The second respondent opposed the application on the basis that its officials were within their rights to refuse the endorsement sought. He took the position that:

“To the extent that Applicant holds a South African passport, he is an alien and we are entitled to govern his status in terms of the Immigration Regulations, 1998. Applicant's current status is as provided for in section 16 of the Regulations. In terms of section 17 of the Immigration Regulations, on the face of it, Applicant does not qualify for an unrestricted residence permit given the circumstances he has presented…,.”

It was submitted by counsel, on behalf of the second respondent, that the latter was acting in terms of the Immigration Regulations, 1998, which Regulations govern the actions of immigration officers. Upon presentation of a South African passport, the presenter is regarded as an alien and is expected to comply with the Regulations. While acknowledging the entitlement of the applicant to dual citizenship, and, therefore, to unrestricted entry into and exit from Zimbabwe, the second respondent was of the firm view that if the applicant chooses to travel on a South African passport then he should apply for a residence permit like all other alien holders of foreign passports.

THE CONSTITUTIONAL PROVISIONS

36 Citizenship by birth

(1) Persons are Zimbabwean citizens by birth if they were born in Zimbabwe and, when they were born -

(a) Either their mother or their father was a Zimbabwean citizen; or

(b) Any of their grandparents was a Zimbabwean citizen by birth or descent.

(2) Persons born outside Zimbabwe are Zimbabwean citizens by birth if, when they were born, either of their parents was a Zimbabwean citizen and -

(a) Ordinarily resident in Zimbabwe; or

(b) Working outside Zimbabwe for the State or an international organisation.

(3) A child found in Zimbabwe who is, or appears to be, less than fifteen years of age, and whose nationality and parents are not known, is presumed to be a Zimbabwean citizen by birth.

42 Powers of Parliament in regard to citizenship

An Act of Parliament may make provision, consistent with this Chapter, for -

(a) Procedures by which Zimbabwean citizenship by registration may be acquired;

(b) The voluntary renunciation of Zimbabwean citizenship;

(d) The restoration of Zimbabwean citizenship;

(e) The prohibition of dual citizenship in respect of citizens by descent or registration; and

(f) Generally giving effect to this Chapter.

The powers given to Parliament in respect of revocation of Zimbabwean citizenship and the prohibition of dual citizenship relate only to citizens of Zimbabwe other than by birth. No similar provision is made in respect of citizens by birth. Thus, a Zimbabwean citizen by birth does not lose his or her citizenship on acquiring a foreign citizenship. He or she is entitled to hold foreign citizenship and a foreign passport. Indeed, the Constitution has made it clear that Zimbabwean citizenship by birth cannot be lost. That much was decided in Mawere v Registrar General CC30-13…, and conceded by the respondents in this case.

The only issue which falls for determination is whether this Court should order the endorsement sought by the applicant.

SC21-15 : ROLAND WHITEHEAD vs REGISTRAR GENERAL OF CITIZENSHIP and CO-MINISTERS OF HOME AFFAIRS and MINISTER OF JUSTICE AND LEGAL AFFAIRS and ANOTHER
Ruled By: ZIYAMBI JA, GARWE JA and GUVAVA JA

After hearing counsel and perusing the papers filed of record, the court made the following order:-“1. The appeal is allowed with no order as to costs.2. It is hereby declared that the appellant is a citizen of Zimbabwean by birth in terms of section 36 of the current Constitution.3. Reasons for this ...

After hearing counsel and perusing the papers filed of record, the court made the following order:-

“1. The appeal is allowed with no order as to costs.

2. It is hereby declared that the appellant is a citizen of Zimbabwean by birth in terms of section 36 of the current Constitution.

3. Reasons for this order are to follow in due course.”

What follows are the reasons for the order.

BACKGROUND

The appellant was born in this country, then known as Southern Rhodesia, on 15 April 1944. His mother, Enid Marjorie Whitehead, was also born in this country on 11 April 1917. His father, born in South Africa, migrated to the then Southern Rhodesia in 1939 and later married the appellant's mother. At the time when the appellant was born, both his parents were citizens of this country, his mother by birth and his father by naturalization.

In October 2005, the first respondent confiscated the appellant's Zimbabwean passport on the basis that he had not renounced his entitlement to South African citizenship. The appellant then applied for South African citizenship and was subsequently issued with a South African passport. On 16 December 2005, he was declared an undesirable inhabitant or visitor to Zimbabwe by the Minister.

PROCEEDINGS IN HIGH COURT

On 25 March 2011, the appellant, as applicant, filed a court application with the High Court at Harare seeking a declarator that;

(a) He was a citizen by birth;

(b) The order issued by the Minister was unlawful and consequently null and void; and

(c) As a citizen by birth, he was entitled to all the rights and privileges that are enjoyed by a citizen, including the right to a Zimbabwean passport.

The first respondent opposed the relief sought.

It was his contention that although the applicant was a citizen by birth, he had lost such citizenship as a result of his failure to comply with certain renunciation requirements. Constitution of Zimbabwe Amendment (No.3) of 1983 made provision for an Act of Parliament to be passed prohibiting dual citizenship. Consequent thereto, section 9 of the Citizenship of Zimbabwe Act [Chapter 4:01] prohibited all forms of dual citizenship.

The court a quo, after hearing argument, concluded that, once a Zimbabwean citizen acquires foreign citizenship, he immediately ceases to hold Zimbabwean citizenship. In the result, in a judgment dated 13 September 2012, the court a quo dismissed the application with no order as to costs.

It is that order that the appellant has challenged before this Court.

NEW CONSTITUTION ENACTED

On 22 May 2013, almost four months before the hearing of the appeal, the new Constitution i.e. Constitution of Zimbabwe Amendment (No.20) Act 1/13 came into operation. In section 36(1) thereof, the Constitution provides:-

“(1) Persons are Zimbabwean citizens by birth if they were born in Zimbabwe and, when they were born -

1. Either their mother or their father was a Zimbabwean citizen; or

2…., (not relevant).”

APPELLANT'S SUBMISSIONS ON APPEAL

On the authority of the judgment of this Court in Mutumwa Dziva Mawere v Registrar General & Ors CC04-15, the appellant has argued that the fact that he also holds the citizenship of South Africa does not disentitle him, under the new Constitutional dispensation, to his Zimbabwean citizenship by birth. He further argued that citizenship by birth cannot be revoked by the State.

FIRST RESPONDENT'S SUBMISSIONS ON APPEAL

The first respondent does not agree. He has submitted that the appellant lost his Zimbabwean citizenship by operation of law. He was also declared a prohibited immigrant. His status as a prohibited immigrant remains extant and consequently it would not be competent for him to be declared a citizen of Zimbabwe by birth….,.

In Mutumwa Dziva Mawere v Registrar General & Ors CC04-15, this Court stated in clear terms that, in a case where it is common cause that a person was born in Zimbabwe and at the time of birth at least one of his parents was a Zimbabwean citizen, the person enjoys citizenship by birth in terms of section 36(1) and such citizenship cannot be revoked or lost under any circumstances. Citizenship may only be revoked by the State in cases of fraud, misrepresentation or concealment of a material fact or, in the case of a child found in Zimbabwe and presumed to be a Zimbabwean citizen by birth, it is established that in fact the child was a citizen of another country. In a case, such as the present, where it is not suggested that the citizenship was acquired through fraud, misrepresentation or concealment of a material fact, a decision to revoke his citizenship or to declare him a prohibited immigrant is clearly unlawful.

In Mutumwa Dziva Mawere v Registrar General & Ors CC04-15, this Court stated…,:-

“What is significant about s 39 is that it does not provide for the revocation of the citizenship of a person who is born in Zimbabwe to a Zimbabwean parent as provided in s 36(1) of the Constitution. Read against s 39, the necessary corollary is that citizenship acquired in terms of s 36(1) cannot be revoked by the State under any circumstances.”

At page 13, the court further remarked:-

“Consequently, on a proper reading of all the provisions of Chapter 3, the inference is irresistible that dual citizenship in respect of citizens by birth is not proscribed. Such citizenship exists by operation of law.”

The above remarks apply with equal force to this case.

The fact that the appellant also enjoys South African citizenship, or that at some stage he was branded a prohibited immigrant, is now no longer relevant. He is a citizen by birth in terms of section 36(1) of the Constitution and is entitled to all the benefits of citizenship. That is the end of the matter….,.

It was for the above reasons that we made the order cited in paragraph 1 of this judgment.

HH128-11 : SEBASTIAN PIRORO vs REGISTRAR GENERAL OF CITIZENSHIP and OTHERS
Ruled By: MAVANGIRA J

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 ...

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:

“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

(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 [Chapter 4:01] 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 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.]

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) of the Citizenship of Zimbabwe Act [Chapter 4:01] 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 clear 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 respondent's 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 HH29-02 ADAM J stated…, -

“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 s3(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 HH87-02 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…, -

“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 Morgan Tsvangirai v Registrar-General and Ors HH29-02 case, 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. HH3626/02; Lewis Uriri v Registrar General of Citizenship and Anor HH7128/03. Similar arguments by the first respondent were also rejected in Trevor Ncube v The Registrar General and Anor HH7316/06 by BHUNU J, who, in that matter, awarded costs on the higher scale against the first respondent.

This erroneous interpretation of section 9(7) of the Citizenship of Zimbabwe Act [Chapter 4:01] 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 section 9 of the Citizenship of Zimbabwe Act [Chapter 4:01] are not applicable, firstly, because the applicant was not, as at 6 July 2001, a dual citizen of Zimbabwe and Mozambique. Consequently, section 9(7) of the Citizenship of Zimbabwe Act [Chapter 4:01] 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 section 9(1) of the Citizenship of Zimbabwe Act [Chapter 4:01]. Thirdly, and as he had not acquired a foreign citizenship, section 9(2) of the Citizenship of Zimbabwe Act [Chapter 4:01] 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 12^th 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 section 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 s2, 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.

(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 section 6(1) of the 1963 Act by the insertion after paragraph (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 section 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 section 5(1)(c) which stated:

“5(1)(d) in the case of a person so born on or after the 12^th 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 section 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 of 1996) which came into effect on 6 December 1996. The original section 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 section 5 was substantially amended for persons born on or after 6 December 1996. The relevant portions of section 5, as amended by Constitution Amendment No.14 (Act 1 of 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 section 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 of 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 section 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 section 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

(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

(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 [Chapter 4:01] 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;

[Subsection substituted by Act 12 of 2001.]

The new section 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 parents 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 section 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 section 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 section 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.

HH128-11 : SEBASTIAN PIRORO vs REGISTRAR GENERAL OF CITIZENSHIP and OTHERS
Ruled By: MAVANGIRA J

The reference to Article 15 of the Universal Declaration of Human Rights is also apposite. Article 15 of the Universal Declaration of Human Rights 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 ...

HH05-18 : MOVEMENT FOR DEMOCRATIC CHANGE (T) and MOVEMENT FOR DEMOCRATIC CHANGE (N) and SARAH KACHINGWE vs ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL N.O. and OTHERS
Ruled By: MUNANGATI-MANONGWA J

At the centre of this matter was the issue of registration as voters of the so-called “aliens”, who, by virtue of section 36 and 43(2) of the Constitution have become citizens. As citizens they are entitled to enjoy political rights enshrined under section 67 of the Constitution….,. This legal issue arises from the historical constituent of the ...

This legal issue arises from the historical constituent of the Zimbabwean society which consists of a certain class of persons which the Constitution has acknowledged, in sections 36 and 43(2), to be citizens. These persons had been labelled “aliens” with their identity documents duly endorsed as such. The Shorter Oxford English Dictionary defines an 'alien' as a “stranger, a foreigner, a resident of foreign origin.” Given the circumstances of these persons, which included their place of birth and parental origins, the label of “alien” was not, in my view, appropriate given the aforementioned definition. Constitutional intervention brought clarity to the issue of this class of “aliens”. The relevant part of section 36, which impacts upon this case, provides -

“1. Persons are Zimbabwean citizens by birth if they were born in Zimbabwe, and, when they were born –

(a) Either their mother or their father was a Zimbabwean citizen;…,.”

And the relevant section of Section 43 reads -

(2) Every person who was born in Zimbabwe before the publication day is a Zimbabwean citizen by birth if -

(a) One or both of his or her parents was a citizen of a country which became a member of the Southern African Development Community established by the treaty signed at Windhoek in the Republic of Namibia on the 17^th August 1992; and

(b) He or she was ordinarily resident in Zimbabwe on the publication day.”

Put simply, section 43(2) provides that any person who was born in Zimbabwe before 22 May 2013 is a citizen by birth if one or both of his parents was a citizen of a SADC member State and he or she was ordinarily resident in Zimbabwe as at that date.

These sections were, in my view, borne of the realization that a certain part of the citizenry was legally left out and had to go through certain processes to assert their citizenship when, to all practical intents and purposes, they were indeed citizens of Zimbabwe given their birth status and parental history.

It is a fact that Southern Africa experienced migrations from different countries and in the 1950's–1960; people from Malawi came to the then Southern Rhodesia to look for employment. Mozambique and South Africa are countries which also had their people coming to Zimbabwe either as asylum seekers, or refugees, when South Africa was still under apartheid and Mozambique experienced displacement of its citizens due to war. The people of neighbouring Botswana and Zambia have also got a history with Zimbabwe from the liberation struggle where Zimbabwean liberation armies got accommodated there as well as in Mozambique and Tanzania. All this resulted in inter-marriages between these people and Zimbabweans and families being created from associations. As a result, a significant part of the Zimbabwean society is constituted by the offspring of such persons and despite being born in Zimbabwe they had been labelled “aliens”.

A new Zimbabwean Constitution, which came into operation on the 22^ndof May 2013, gave these persons full citizenship status with the entitlement to all rights, benefits and privileges attendant upon a citizen….,.

In Mawere v Registrar General & Others CCZ27/13, CC04-15, GARWE JA stated as follows:

“Section 36 is not made subject to any other section in the Constitution. It stands alone. The ordinary grammatical meaning of the section is clear and allows of no ambiguity. A person born in Zimbabwe to a parent who, at the time of birth, was a Zimbabwean citizen, is a Zimbabwean citizen. That section does not oblige a person in this category to do anything further to qualify for Zimbabwean citizenship.”…,.

Overall, in my view, the only pertinent issue which should have exercised the litigants' mind should have been the challenges presented by section 43(2)(b) of the Constitution which entail proving that the person relying on the section was ordinarily resident in Zimbabwe on the publication day of the Constitution being the 22^nd of May 2013. This is an additional requirement for one to qualify as a citizen under that section. The issue of being born in Zimbabwe before May 2013 to one or both parents who are citizens of a Southern African Development Community (SADC) member country would not be a challenge as the birth certificate would clearly stipulate this information.

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Constitutional Law re: Dual Citizenship and Citizenship by Birth, Descent or Registration

CC04-15 : MUTUMWA DZIVA MAWERE vs REGISTRAR GENERAL and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA, and CHIWESHE AJA

CC05-14 : FARAI MADZIMBAMUTO vs THE REGISTRAR GENERAL and PRINCIPAL DIRECTOR OF IMMIGRATION and MINISTER OF HOME AFFAIRS and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

SC21-15 : ROLAND WHITEHEAD vs REGISTRAR GENERAL OF CITIZENSHIP and CO-MINISTERS OF HOME AFFAIRS and MINISTER OF JUSTICE AND LEGAL AFFAIRS and ANOTHER
Ruled By: ZIYAMBI JA, GARWE JA and GUVAVA JA

HH128-11 : SEBASTIAN PIRORO vs REGISTRAR GENERAL OF CITIZENSHIP and OTHERS
Ruled By: MAVANGIRA J

HH128-11 : SEBASTIAN PIRORO vs REGISTRAR GENERAL OF CITIZENSHIP and OTHERS
Ruled By: MAVANGIRA J

HH05-18 : MOVEMENT FOR DEMOCRATIC CHANGE (T) and MOVEMENT FOR DEMOCRATIC CHANGE (N) and SARAH KACHINGWE vs ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL N.O. and OTHERS
Ruled By: MUNANGATI-MANONGWA J

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Law Portal Zimbabwe

Constitutional Law re: Dual Citizenship and Citizenship by Birth, Descent or Registration

CC04-15 : MUTUMWA DZIVA MAWERE vs REGISTRAR GENERAL and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA, and CHIWESHE AJA

CC05-14 : FARAI MADZIMBAMUTO vs THE REGISTRAR GENERAL and PRINCIPAL DIRECTOR OF IMMIGRATION and MINISTER OF HOME AFFAIRS and ATTORNEY GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

SC21-15 : ROLAND WHITEHEAD vs REGISTRAR GENERAL OF CITIZENSHIP and CO-MINISTERS OF HOME AFFAIRS and MINISTER OF JUSTICE AND LEGAL AFFAIRS and ANOTHER Ruled By: ZIYAMBI JA, GARWE JA and GUVAVA JA

HH128-11 : SEBASTIAN PIRORO vs REGISTRAR GENERAL OF CITIZENSHIP and OTHERS Ruled By: MAVANGIRA J

HH128-11 : SEBASTIAN PIRORO vs REGISTRAR GENERAL OF CITIZENSHIP and OTHERS Ruled By: MAVANGIRA J

HH05-18 : MOVEMENT FOR DEMOCRATIC CHANGE (T) and MOVEMENT FOR DEMOCRATIC CHANGE (N) and SARAH KACHINGWE vs ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL N.O. and OTHERS Ruled By: MUNANGATI-MANONGWA J

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CC04-15 : MUTUMWA DZIVA MAWERE vs REGISTRAR GENERAL and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA, and CHIWESHE AJA

CC05-14 : FARAI MADZIMBAMUTO vs THE REGISTRAR GENERAL and PRINCIPAL DIRECTOR OF IMMIGRATION and MINISTER OF HOME AFFAIRS and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

SC21-15 : ROLAND WHITEHEAD vs REGISTRAR GENERAL OF CITIZENSHIP and CO-MINISTERS OF HOME AFFAIRS and MINISTER OF JUSTICE AND LEGAL AFFAIRS and ANOTHER
Ruled By: ZIYAMBI JA, GARWE JA and GUVAVA JA

HH128-11 : SEBASTIAN PIRORO vs REGISTRAR GENERAL OF CITIZENSHIP and OTHERS
Ruled By: MAVANGIRA J

HH128-11 : SEBASTIAN PIRORO vs REGISTRAR GENERAL OF CITIZENSHIP and OTHERS
Ruled By: MAVANGIRA J

HH05-18 : MOVEMENT FOR DEMOCRATIC CHANGE (T) and MOVEMENT FOR DEMOCRATIC CHANGE (N) and SARAH KACHINGWE vs ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL N.O. and OTHERS
Ruled By: MUNANGATI-MANONGWA J