GARWE
JA
[1] 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”.
[2] What
follows are the reasons for the order.
BACKGROUND
[3] 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.
[4] 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
[5] 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.
[6] 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, s 9 of the Citizenship of
Zimbabwe Act [Chapter 4:01]
prohibited all forms of dual citizenship.
[7] 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.
[8] It
is that order that the appellant has challenged before this Court.
NEW
CONSTITUTION ENACTED
[9] 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 s 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
[10] On
the authority of the judgment of this Court in Mutumwa Dziva Mawere vs Registrar General & Ors CCZ 4/15, 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
[11] 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.
WHETHER
APPELLANT IS A CITIZEN UNDER THE CONSTITUTION
[12] It
is clear that the argument by the first respondent overlooks the fact that
there is a new Constitution in force and that new rights have been created by the
Constitution. The argument also seems
oblivious of the fact that any existing law that is inconsistent with the new
Constitution is invalid to the extent of such inconsistency – s 2 of the
Constitution.
[13] Put
differently any provision in the Citizenship of Zimbabwe Act [Chapter 4:01] or the Immigration Act [Chapter 4:02] that is inconsistent with
the provisions of s 36 of the current Constitution would be invalid to the
extent of such inconsistency.
[14] It
being common cause that the appellant was born in Zimbabwe and that, at the
time he was born, both his parents were Zimbabwean citizens, the appellant is,
by operation of law, a citizen of Zimbabwe by birth. Such citizenship cannot be revoked by the
State except in the circumstances provided for under s 39(2) of the
Constitution.
[15] In
Mutumwa Dziva Mawere v Registrar General
& Ors (supra), 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 s 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.
[16] In
the Mutumwa Dziva Mawere case (supra), this Court stated at p 10 of the
cyclostyled judgment:-
“(27) 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
p 13, the court further remarked:-
“(35) 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.”
[17] 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 s 36(1) of the Constitution and is entitled to all
the benefits of citizenship. That is the
end of the matter.
[18] On the issue of costs, both parties were
agreed that a no costs order would meet the justice of the case.
[19] It was for the above reasons that we made
the order cited in paragraph 1 of this judgment.
ZIYAMBI JA: I
agree
GUVAVA JA: I
agree
Zimbabwe
Lawyers for Human Rights, appellant's legal
practitioners
Mudenda Attorneys, first respondent's
legal practitioners
