ZIYAMBI 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 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 Mrs Wood. 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 Mr Pedzisai,
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;
(c) procedures for the
revocation of Zimbabwean 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 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 CCZ 30/13 (not yet reported) 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.
THE RIGHT TO
FREEDOM OF MOVEMENT
The freedom of movement and
residence in Zimbabwe is a right guaranteed by the Constitution to every
Zimbabwean citizen and every person who is legally in Zimbabwe. It
includes the right to enter and leave Zimbabwe as well as immunity from
expulsion from Zimbabwe. Section 66 of the Constitution provides:
“66 Freedom
of movement and residence
(1) Every Zimbabwean citizen has—
(a) the right to enter
Zimbabwe;
(b) immunity from expulsion
from Zimbabwe; and
(c) the right to a passport
or other travel document.
(2) Every Zimbabwean citizen and
everyone else who is legally in Zimbabwe has the right to—
(a) move freely within
Zimbabwe;
(b) reside in any part of
Zimbabwe; and
(c) leave Zimbabwe.”
It was contended on behalf of the
applicant that the two year time-restricted residence permit endorsed by the
second respondent on his South African passport is an infringement of his right
under s 66 of the Constitution to immunity from expulsion from Zimbabwe, and to
enter Zimbabwe on such passport once the two year permit expires or is, at the
second respondent's whim, withdrawn.
In view of the submission by Mr Pedzisai,
on behalf of the second respondent, that “if the applicant presents a South
African passport upon entry into Zimbabwe to the immigration officials he will
be treated as an alien and made to apply for a residence permit in terms of the
Regulations,” there is, in my view, a real danger of expulsion of the
applicant by the second respondent's officials in the event that the applicant
enters Zimbabwe and presents his South African passport endorsed with an
expired residence permit, a withdrawn residence permit or no residence permit
at all.
INTERPRETATION
OF THE CONSTITUTIONAL RIGHT
The approach to interpretation of a
constitutional right has been laid down in many decisions of the predecessor of
this Court. Thus in Rattigan & Ors v Chief Immigration Officer
& Ors 1994 (2) ZLR 54 (S) at 57 F-H the Court held:
“This Court has on several occasions
in the past pronounced upon the proper approach to constitutional construction
embodying fundamental rights and protections. What is to be avoided is
the imparting of a narrow, artificial, rigid and pedantic interpretation; to be
preferred is one which serves the interest of the Constitution and best carries
out its objects and promotes its purpose. All relevant provisions are to
be considered as a whole and where rights and freedoms are conferred on
persons, derogations therefrom, as far as the language permits, should be narrowly
or strictly construed.”
CONCLUSION
The second respondent concedes that
the applicant is entitled to dual citizenship by virtue of the Constitution but
insists that he be treated as an alien if he enters Zimbabwe using a South
African passport. This, it was submitted, is because the second
respondent is governed by the Regulations. It must be emphatically stated here
that the Regulations are governed by the Constitution and not the Constitution
by the Regulations. Any law which is inconsistent with the Constitution
is void to the extent of the inconsistency[1].
To say that the applicant, as a citizen by birth, is entitled to dual
citizenship conferred by the Constitution and then to deny him the right to
freely enter and leave Zimbabwe, which right is afforded to all citizens in
terms of s 66, on the grounds that he has presented a foreign passport, is to
deprive him of the benefits of the enjoyment of two fundamental rights
conferred on him by the Constitution of Zimbabwe, namely the right to dual
citizenship inherent in his birthright as a Zimbabwe citizen by birth and the
right to freedom of movement.
A purposive interpretation of the
right conferred in s 66 read with the applicant's entitlement to dual
citizenship is that the applicant's right to enter, remain and leave Zimbabwe
cannot be restricted even when he presents or travels upon a foreign passport.
It is for the Regulations to be brought into conformity with the Constitution
and not for the Constitution to conform to the Regulations. It is also
for the framers of the Regulations to decide how best to align the Regulations
with the Constitution in order to give effect to the Constitutional rights of
Zimbabwean citizens.
Because of the firm stance taken by
Mr Pedzisai, on behalf of the second respondent, that the applicant will
be treated as an alien if he presents a South African passport to the
immigration officials upon entry into Zimbabwe, we consider that it is
necessary, in this case, to grant an order in the terms sought by the
applicant.
Accordingly, the application is
allowed and the following order is issued:
- It is declared that the
applicant is a citizen of Zimbabwe by birth with entitlement to dual
citizenship.
- The second respondent is hereby
ordered to endorse in the applicant's South African passport upon
presentation thereof to him, the applicant's right to unrestricted and
unconditional residence in Zimbabwe.
CHIDYAUSIKU CJ: I
agree
MALABA DCJ:
I
agree
ZIYAMBI JA:
I
agree
GWAUNZA
JA:
I
agree
GARWE
JA:
I agree
GOWORA
JA:
I
agree
HLATSHWAYO
JA:
I agree
PATEL
JA:
I agree
GUVAVA
JA:
I agree
Mugwadi
& Associates,
applicant's legal practitioners
Civil
Division of the Attorney General's Office, respondent's legal practitioners
[1]
Constitution of Zimbabwe s2 