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 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
(c) A child who
is not a Zimbabwean citizen but is adopted by a Zimbabwean citizen.
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;
(c) The
procedures for the revocation of Zimbabwean citizenship by registration;
(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;
(c) The
procedures to be followed in the revocation of citizenship by registration;
(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.
