With regards the declaration in paragraph 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 section 9(7) of ...
With regards the declaration in paragraph 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 section 9(7) of the Citizenship of Zimbabwe Act [Chapter
4:01] are ultra vires section 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 naturalized 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 section 27(1) of the 1949 Act. As with the 1949 Act, section
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 section 18(1) of the
Act. Section 18(4) and 18(5) was similar to sections 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 counsel for the applicant, “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 section 15 (section 16 in the
1974 Revised Edition) only allowed for deprivation of citizenship in the case
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 section
16(1)(c) which was in the same terms as section 23 of the previous Act.
At Independence, Citizenship laws were elevated from an
Act of Parliament to the Constitution. I would agree with counsel for the
applicant that this signified the importance of citizenship. Section 9 of the
1979 Constitution stated:-
“(9) An act of Parliament may make provision, not
inconsistent with this Chapter, in respect of citizenship and, without
prejudice to the generality of the foregoing, for -
(a) …,.
(b) Subject to the provisions of s8 (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 section 3 of the Constitution Amendment Act
No…, (Act 1/2003), the original section 9 was repealed and substituted by a new
section 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 [Chapter 4:01]. Section 9 of the
Citizenship of Zimbabwe Act [Chapter 4:01] is headed “Prohibition of dual
citizenship”, subsections (1) and (2) of section 9 of the Citizenship of
Zimbabwe Act [Chapter 4:01] 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 section 9(7) of the Citizenship of Zimbabwe
Act [Chapter 4:01] 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 (S), 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 section 9(7) of
the Citizenship of Zimbabwe Act [Chapter 4:01] 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) of the Citizenship of
Zimbabwe Act [Chapter 4:01] was repealed and substituted. The new section 9(7)
of the Citizenship of Zimbabwe Act [Chapter 4:01], 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 Citizenship of Zimbabwe Amendment Act 2003
(Act 12/2003) and the Regulations published in terms thereof (S.I.101A of 2004),
these citizens were regarded as having lost their citizenship and were
therefore required to apply to “restore” their citizenship.
In 2009, section 9 of the Constitution was repealed and
substituted, as was the whole of [Chapter 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 counsel for the applicant, this new section
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 section 9(c) of
the Constitution 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 section 9 of the Constitution contained the proviso quoted earlier but
the current section 9 of the Constitution does not contain such or any
equivalent provision.
The current section 8 of the Constitution is headed
“Citizenship and Immigration Board”. There was no equivalent provision in the
repealed section 8 which was in fact left vacant after the original section 8,
which provided for dual citizenship, was repealed by Act 1/1983. The up-to-date
section 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.
Another aspect of citizenship by birth is that section 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 [Chapter 11] introduced by Act
1/2009, the previous section 4 has been repealed and its provisions have
completely disappeared. The new section 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.
I also find persuasive the submissions that the effect of
section 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 section 9 of the Constitution as read with section 5(1) of
the Constitution is that a person who qualifies as a citizen by birth in terms
of section 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 section 9(7) of the Citizenship of Zimbabwe Act
[Chapter 4:01] not only breaches the provisions of Article 15 of the Universal Declaration of Human Rights, but it is also
ultra vires section 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.
