It goes without saying that the issue of citizenship is a very important issue, regardless of the nationality. Without the need of exploring jurisprudence it is essential to note that the holding of national citizenship is a universally guaranteed right.
When one is recognized as a citizen it provides the individual with various benefits such as the right to register and vote in elections, the right to unrestricted entry and stay in a country, access to health services etc. The aforesaid can be classified as socio-economic human rights.
It must be stated that the new Zimbabwean Constitution recognises three types of citizenship, that is:
(a) Citizenship by Birth
(b) Citizenship by Descent
(c) Citizenship by Registration
Citizenship By Birth
Section 36 of the Constitution defines citizenship by birth as follows:
(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.
Citizenship By Descent
Section 37 defines citizenship by descent as follows:
Subject to section 36 (2), persons born outside Zimbabwe are Zimbabwean citizens by descent if, when they were born—
(a) Either of their parents or any of their grandparents was a Zimbabwean citizen by birth or descent; or
(b) Either of their parents was a Zimbabwean citizen by registration; and the birth is registered in Zimbabwe in accordance with the law relating to the registration of births.
Citizenship By Registration
This is the legal process by which a citizen of one country becomes a citizen of another country.
Section 38 defines citizenship by registration as follows:
(1) Any person who has been married to a Zimbabwean citizen for at least five years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament, is entitled, on application, to be registered as a Zimbabwean citizen.
(2) Any person who has been continuously and lawfully resident in Zimbabwe for at least ten years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament, is entitled, on application, to be registered as a Zimbabwean citizen.
(3) A child who is not a Zimbabwean citizen, but is adopted by a Zimbabwean citizen, whether before or after the effective date, is entitled, on application, to be registered as a Zimbabwean citizen.
The right to dual citizenship is only reserved for citizens by birth. Thus citizens by registration or descent are precluded by the provisions of Section 42 (e) of the Constitution from dual-citizenship.
The Constitutional Court in the case of Mutumwa Dziva Mawere v. The Registrar General & 3 ORS CCZ 4/15 which brief facts are as follows, the Applicant (Mawere), a Zimbabwean citizen by birth sought a declaratur that, being a citizen by birth, he was entitled to dual citizenship and that the law did not require of him to renounce his foreign citizenship before he could be issued with a Zimbabwean national identity document. The Applicant had by registration, acquired South African citizenship. It was the Registrar General’s contention that the Applicant could not be issued with a Zimbabwean national identity document without first renouncing his South African citizenship.
The Court in this matter granted the Application thereby confirming the constitutional recognition of dual citizenship under Zimbabwean law. Thus any person who is a Zimbabwean citizen by birth is entitled to dual citizenship. The law does not require anyone to first renounce their foreign citizenship before they can exercise their Zimbabwean citizenship.
The Constitutional Court re-enforced the position stated in the Mawere Case in the case of Farai Daniel Madzimbamuto v. The Registrar General & 3 Ors CCZ 114/13 whose brief facts are as follows, the Applicant (Madzimbamuto) was a citizen of Zimbabwe by birth. One of his parents was Zimbabwean by birth while the other was South African. He left Zimbabwe for the United Kingdom on a Zimbabwean passport in order to take up employment in that country. On 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. When the Applicant returned to Zimbabwe permanently in 2012 he presented his South African passport to Immigration Officials who treated him as an alien because of his South African passport even though there was evidence that he was a Zimbabwean citizen. The authorities restricted his stay in Zimbabwe to a specific period.
The Constitutional Court held that:
“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.”
The court further stated that:
“A purposive interpretation of this conferred in section 66 (freedom of movement) read into 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 again on a foreign passport.”
From the above it is therefore unlawful for the Immigration Officials to ask Zimbabwean citizens entering the country (including those doing so using holding a second passport) how long they intend to stay in Zimbabwe and endorsing a date by which they should leave the country. It must also be said that the information which appears on the inside cover of the Zimbabwean Passport as well as the information on the Registrar-General’s website to the effect that dual-citizenship is prohibited is not only misleading but ultra vires the Constitution and same should be disregarded as the matter has been settled by the Constitutional Court.
Written By Kudzai Kaseke
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