IN THE HIGH COURT
Case No. H.C. 7248/10
OF ZIMBABWE HELD
AT HARARE
In the matter between:
SEBASTIAN PIRORO
APPLICANT
AND
REGISTRAR-GENERAL OF CIITZENSHIP
CO-MINISTERS OF HOME AFFAIRS
MINISTER OF JUSTICE AND LEGAL AFFAIRS
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
MINISTER OF CONSTITUTIONAL AND
PARLIAMENTARY AFFAIRS
FOURTH RESPONDENT
________________________________________________________________
APPLICANT’S HEADS OF ARGUMENT
INTRODUCTION
1. The Applicant in this application is a citizen by birth of Zimbabwe and he has
applied to the First Respondent to renew his Zimbabwe Passport, which has
expired. The First Respondent claims that the Applicant is no longer a citizen of
Zimbabwe and he has refused to renew his Passport. The reason for the attitude
taken by the First Respondent is because the Applicant’s father was born in
Mozambique.
1
2. Since 2002, and in relation to cases dealing with similar facts, there has been
a series of judgments handed down by this Honourable Court rejecting the
arguments that the First Respondent has advanced in this case. Regrettably,
this has not stopped the First Respondent from advancing them again in this
case.
3. However, the law relating to citizenship has been transformed by the repeal
and substitution of Chapter II of the Constitution of Zimbabwe in terms of
Constitution Amendment No. 19 (Act 1/2009) which came into effect on 13
February 2009.
4. After dealing with the factual background and the relief sought, these Heads
will define the concept of citizenship and will emphasise the importance of it
to the individuals involved and to the State.
5. Next, these Heads will deal with the arguments put forward by the First
Respondent, with reference to the relevant Judgments handed down by this
Honourable Court and the Orders made in those cases against the First
Respondent.
6. Thereafter, these Heads will deal with the meaning and effect of Chapter II of
the Constitution of Zimbabwe as amended by Constitution Amendment No.
19.
7. They will argue that Section 5 of the Constitution, as introduced by
Constitution Amendment No.19, is the sole basis by which anyone born in
Zimbabwe can qualify as a citizen by birth of Zimbabwe, regardless as to
whether such person was born before, on or after 13 February 2009.
2
8. Finally, these Heads will argue that the provisions of Section 9(7) of the
Citizenship of Zimbabwe Act[Chapter 4:01] are ultra vires the powers vested
in the Parliament of Zimbabwe.
RELEVANT FACTUAL BACKGROUND
9. The general factual background is set out in the Applicant’s Founding
Affidavit. The following facts are relevant to this application and are either
common cause or are alleged by the Applicant and are not disputed by the
First Respondent.
10. The Applicant was born in Harare, Zimbabwe on 29 April 1967. (This means
that he is 43 years of age.) He is the holder of a Zimbabwe Identity Disc,
which states that he is a Zimbabwe citizen1.
11. The Applicant’s father was born in Mozambique. He came to Zimbabwe when
he was young, he lived most of his life in Zimbabwe, at some stage he
became a Zimbabwe citizen, and he died in Zimbabwe2.
12. The Applicant’s mother was born in Zimbabwe. She was a citizen of
Zimbabwe by birth, lived all her life in Zimbabwe and died in Zimbabwe 3.
13. On 19 June 2000 the Applicant was issued with a Zimbabwe Passport. The
First Respondent issued this to the Applicant on the basis that he was a
citizen of Zimbabwe4.
14. The Applicant’s Zimbabwe Passport expired on 18 June 2010 when the
Applicant was living in Canada where he is still living and working5.
1
FA Page 4 Para. 6
FA Page 6 Para. 19
3 FA Page 6 Para. 20, 22
4 FA Page 4 Para. 8
5 FA Page 5 Para. 10,12
2
3
15. The Applicant submitted an application form to renew his Zimbabwe Passport
before it expired. He did this to the First Respondent through the Zimbabwe
Embassy in Canada6.
16. The First Respondent has refused to grant this application7.
RELIEF SOUGHT
17. In the Draft Order8, the Applicant seeks a Declaration that he is a citizen of
Zimbabwe by birth in terms of Section 5 contained in Chapter II of the
Constitution of Zimbabwe as set out in the Schedule to the Zimbabwe
Constitution Order 1979 (SI 1979/1600) as amended up to and including
Constitution Amendment No. 19 (Act 1 of 2009).
18. The Applicant also seeks an order that the provisions of Section 9(7) of the
Citizenship of Zimbabwe Act [Chapter 4:01] are ultra vires the powers vested
in the Parliament of Zimbabwe in terms of Section 9 of the Constitution of
Zimbabwe and are in consequence of no force or effect. However, and with
reference to the Draft Order, this is only in respect of citizens by birth of
Zimbabwe.
19. Following on from the Declaration sought, the Applicant seeks an Order, with
costs against the First and Second Respondents, that the First Respondent
renews his Zimbabwe Passport within 14 days of the date of the Order.
CONCEPT OF CITIZENSHIP
6
FA Page 5 Para. 13
FA Page 5 Para. 14,15
8 Page 16-17
7
4
20. The term “citizenship” in law denotes a legal bond between an individual and
the State in which the State recognizes and guarantees the individual’s rights.
The most common rights of citizenship are the right to permanently reside
within the State, the right to vote, the right to be elected to public office, the
right to freedom of movement within and outside the State, which includes the
right to a Passport issued by the State, and the right to diplomatic protection
by the State. The term refers to the legal bond between a person and the
State9.
21. Section 4 of Chapter II of the Constitution of Zimbabwe, as amended up to
and including the last amendment, which was Constitution Amendment No.
19 (Act 1/2009), sets out in general terms the concept of Zimbabwe
citizenship. That Section states as follows:
“4(1) There is a common Zimbabwean citizenship and all citizens are
equal, that is to say citizens are entitled, subject to this Constitution,
to the rights, privileges and benefits of citizenship and are subject to
the duties and obligations of citizenship.
4(2) It is the duty of every Zimbabwean citizen(a)
To observe this constitution and to respect its ideals and
institutions; and
(b)
To respect the national flag and the national anthem; and
(c)
To the best of his or her ability, to defend Zimbabwe in time of need.
(3) Every Zimbabwean citizen is entitled to the protection of the State
wherever he or she may be.
9
Citizenship Law in Africa: A Comparative Study by Bronwen Manby published by Open Society
Foundation. Available at www.afrimap.org.
5
(4) Zimbabwean citizenship may be acquired by birth, descent or
registration.”
22. In the Namibian High Court case of:
Tlhoro v. Minister of Home Affairs [2008] NAHC 65
Maritz J. stated that:
“Citizenship is a personal bond between an individual and the State. It signifies
continuing membership of an independent political community and whilst it
incorporates all the civil and political rights arising from that legal relationship,
it also entails the duty of obedience and fidelity. It is the foundation of every
independent body politic and binds the members thereof together in a
constitutional unit in which they all share a common loyalty. It is important.”
SUMMARY OF FIRST RESPONDENT’S ARGUMENTS
23. Firstly, the First Respondent argues that, contrary to Section 9(1) of the
Citizenship of Zimbabwe Act [Chapter 4:01], the Applicant was a dual citizen
of Zimbabwe and Mozambique and that, as a consequence, and in terms of
Section 9(7) of the Act, the Applicant has lost his Zimbabwe citizenship 10.
24. Secondly, the First Respondent argues that before the Applicant is entitled to
apply for a new Zimbabwe Passport he has, in the first instance, to renounce
Mozambique citizenship in terms of Mozambique law and then, in accordance
with the provisions of Section 14(1)(b) of the Act, has to apply to the CoMinister of Home Affairs, the Second Respondent, to be restored as a
Zimbabwe citizen in terms thereof, this time as a citizen by registration and
not as a citizen by birth11. The First Respondent argues that the Applicant will
10
11
OA Page 21 Para. 7
OA Page 22 Para. 8
6
suffer no prejudice by being a citizen of Zimbabwe by registration rather than
by birth12. Only if and when this application is approved, so the First
Respondent argues, will he recognize the Applicant as a citizen of
Zimbabwe13.
25. Thirdly, the First Respondent appears to argue that the law relating to
citizenship which applies to the Applicant’s case is that contained in Chapter
II of the Constitution of Zimbabwe as set out in the Schedule to the Zimbabwe
Constitution Order (SI 1979/1600), as amended but only up to and including
Constitution Amendment No. 14 (Act 14 of 1996). The First Respondent
apparently considers that in dealing with the Applicant’s case, the provisions
of Constitution Amendment No. 19 (Act 1 of 2009) are not relevant 14.
26. Although he does not specifically state so, the First Respondent implies that if
the Applicant becomes a citizen of Zimbabwe again, he concedes that he
would be obliged to issue the Applicant with a new Zimbabwe Passport.
27. It is respectfully submitted that there is no validity in any of these arguments.
The first two of them will be commented upon at this stage. The last one will
be dealt with later when dealing with the effect of Constitution Amendment
No. 19.
THE ALLEGATION THAT THE APPLICANT IS A DUAL CITIZEN
28. Section 9(1) and (2) of the Citizenship of Zimbabwe Act states 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.
12
OA Page 20 Para. 3
OA Page 22 Para. 8
14 OA Page 21 Para. 6
13
7
(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.”
29. Section 9(7), as amended by the Citizenship of Zimbabwe Amendment Act
(No. 12/2001), which was published on 6 July 2001, states as follows:
“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.”
30. This sub-section means that relevant persons had from 6 July 2001 to 6
January 2002 within which to renounce his/her alleged foreign citizenship,
failing which he/she would cease to be a citizen of Zimbabwe.
31. The effect of non-compliance of Section 9(7) of the Act is to be classified as a
non-citizen and in consequence as “an alien”, with all that word denotes
including legal discrimination, lack of political rights including the right to vote
and to hold public office, social stigma and limited opportunities to
employment and limited access to health facilities.
8
32. Section 2 of the Immigration Act [Chapter4:02] defines the word “alien” as “a
person who is not a Zimbabwe citizen.”
33. The effect of Section 9(7) of the Act is to make considerable inroads into the
concept of citizenship, a concept which, as stated previously, is fundamental
to the individual and the State.
34. However, that is not the end of the matter because, since its inception, the
First Respondent has taken it upon himself to adopt a wide and, it is
respectfully submitted, wrong interpretation of the provisions of Section 9(7)
of the Act.
35. It is quite clear from the wording of Section 9(7) of the Act that that provision
only applies to those persons who are in actual fact citizens of a foreign
country. It does not apply to those persons who may have some potential
claim to foreign citizenship but who have taken no steps to take up that
potential claim. This has been so interpreted in a number of court cases,
which will be dealt with later.
36. However, the Registrar – General has over the years repeatedly wrongly
interpreted this provision to mean that any person, who potentially may
become a foreign citizen by virtue of the fact that at least one of his/her
parents was born in a foreign country but who has taken no voluntary or
active steps to acquire that foreign citizenship, has to renounce that foreign
citizenship in order to retain his/her Zimbabwe Citizenship.
37. The Registrar-General has adopted this wrong interpretation and continues to
do so, despite various Orders issued against him by this Honourable Court in
individual cases. He has complied with those individual Orders against him.
9
However, he then ignores the application of those Orders when dealing with
other similar cases and reverts to his original wrong interpretation of the law.
38. Some of the Judgments referred to are:
Morgan Tsvangarai v. Registrar-General and Others (Judgment HH
29/2002).
Ricarudo Manyere v. Registrar General of Citizenship and Minister of
Home Affairs 2002 (Judgment HH 87-2002).
Job Sibanda v. The Registrar General of Citizenship N.O. (Harare High
Court Case No. 3626/02).
Lewis Uriri v. Registrar General of Citizenship and another (Harare High
Court Case No. 7128/03).
Trevor Ncube v. The Registrar General and another (Harare High Court
Case No. 7316/06).
39. In the Morgan Tsvangarai case Adam J. stated as follows:
“ The First Respondent , if he is demanding from Zimbabwe born citizens, one
or both of whose parents were born in a foreign country that they renounce
their foreign citizenship, then, he is flagrantly acting ultra vires Section 3(2) of
the
Citizenship
of
Zimbabwe
Act.
His
conduct
would
certainly
be
unlawful.”(Page 50 of the cyclostyle judgment.)
Section 3(2) of the Citizenship of Zimbabwe Act states that:
“The Registrar-General shall perform such functions as are conferred upon him
in terms of this Act.”
40. Reference is particularly made to the case of Ricarudo Manyere whose facts
are virtually identical to the facts of the present case. The Applicant’s father in
that case was also born in Mozambique. The First Respondent raised the
10
same arguments as he has in this case and the Honourable Mr Justice
Omerjee rejected all of them.
41. At Pages 3-4 of the cyclostyle judgment, the Learned Judge had this to say:
“He (the First Respondent) then goes on to say that the applicant is a
Mozambican citizen by descent and repeats that assertion three times. Mere
repetition of a bald statement does not convert it into a statement of fact,
becoming as it were sacrosanct and incapable of determination by a Court.”
42. As in this case, the First Respondent in that earlier case placed reliance on
Article 19 of the Mozambique Nationality Act or the Mozambique Constitution
(it is not certain which). The Learned Judge rejected the First Respondent’s
submissions in relation thereto. And yet, over eight years later, the First
Respondent is making the same submissions. Without repeating them, the
Applicant respectfully associates himself with the reasons for judgment by the
Learned Judge in that earlier case.
43. Reference is also particularly made to the judgment in the case of Trevor
Ncube in which the Honourable Mr Justice Bhunu also rejected similar
arguments put forward by the First Respondent and awarded costs against
the First Respondent on the higher scale.
44. A consequence of the wrong interpretation of Section 9(7) adopted by the
First Respondent is that by depriving a person of the only citizenship he/she
has that person is thereby rendered stateless. This is in effect the position
which the Applicant finds himself in with the added problem that he is in a
foreign country.
11
45. As referred to later15, the Universal Declaration of Human Rights states that
everyone is entitled to a nationality.
46. Further, Section 11(3)(a) of the Citizenship of Zimbabwe Act states that the
Second Respondent is not allowed to exercise the powers he has to deprive
a citizen by registration of citizenship if the effect would be to render the
person affected stateless.
47. The Registrar-General has, in fact, in his various capacities, been the subject
of harsh criticism by this Honourable Court for his conduct. In his capacity as
the Registrar-General of Elections, he was found to be in contempt of this
Honourable Court in the case of:
Tsvangarai v. Registrar-General and Another 2005 (1) ZLR 382
48. The Honourable Mr Justice Omerjee in his judgment in that case stated as
follows:
“In the result, the first respondent is found to be in contempt of court.
The first respondent holds a senior and important position in the
employ of government. He has ignored several court orders issued in
this matter arising from the statutory duties imposed upon him in his
official capacity. He has acted with impunity and disdain. It is
unbecoming of any public official or anybody else for that matter, to
ignore court orders. To condone such conduct would be to undermine
public confidence in the overall administration of justice and in
particular, in the integrity and dignity of our Courts.”
15
Para. 140 of these Heads.
12
PECULIAR FEATURES OF SECTION 9(7) OF THE CITIZENSHIP OF ZIMBABWE
ACT AS AMENDED BY ACT 12/2001
49. There are various peculiar features of the law relating to the deprivation of
citizenship in Zimbabwe. Firstly, the individual concerned automatically, and
without taking any voluntary action on his part, ceased as at 6 January 2002
to be a citizen of Zimbabwe. No voluntary action was required on the part of
the individual concerned before he/she was deprived of his/her citizenship.
However, the words “voluntary act” do occur in Section 9(2) and it is
submitted that these words must be incorporated into Section 9(7). It is
argued that for a person to fall foul of Section 9(7) he/she must be a citizen of
a foreign country and must have voluntarily acquired that foreign citizenship .
50. Secondly, the individual concerned was as from 6 January 2002 defined as
an “alien” with all that term denotes legally, socially and politically.
51. Thirdly, no formal act by the First Respondent was necessary to inform the
person concerned that he/she was no longer a citizen of Zimbabwe. For
instance, in this case, the Applicant only became aware of his alleged status
in the mind of the First Respondent when he applied to renew his Passport.
The First Respondent had issued this Passport to the Applicant ten years ago
and the First Respondent had, during that period, taken no steps to inform the
Applicant of his alleged unlawful use of the Passport by virtue of him failing to
renounce his alleged foreign citizenship over eight years before.
52. Fourthly, before an individual is deprived of his/her citizenship by birth, the
principles of natural justice or due process are not applied. No prior notice is
given to the individual concerned of the action, which is proposed to be taken
against him/her. No opportunity is afforded to the individual concerned to
13
make submissions in writing or even orally. The individual is not given an
opportunity to have his/her case heard before a decision is arrived at before
any kind of Tribunal, far less a judicial Tribunal.
53. This arbitrary action against a citizen by birth is in contrast to the provisions of
Section 11(4)-(10) which sets out in some elaborate detail what has to take
place before a citizen by registration can be deprived of his/her citizenship in
certain circumstances.
54. In terms of Section 11(4) prior notice in writing of the intended course of
action has to be given. In terms of Section 11(5) the person has thirty days to
submit his case to a Commissioner appointed by the President. In terms of
Section 11(6) the Commissioner has to be a Judge or qualified as such.
55. Fifthly, only the First Respondent, a mere public functionary, is involved in
this drastic action taken against the individual involved. The Second
Respondent or anyone else is not involved.
56. In this regard, it should be pointed out that in terms of proviso (ii) of Section
14(2) of the Act, the consent of the President is required to be obtained
before a person who is a citizen of a foreign country is restored to Zimbabwe
citizenship. In practice, this does not appear to be done.
57. In view of these peculiarly harsh features of Section 9(7), it is all the more
important that the First Respondent restricts the application of it only to cases
where the individual concerned is a dual citizen in the true sense, that is an
actual citizen of a foreign country as well as a citizen of Zimbabwe.
EFFECT OF CITIZENSHIP BY REGISTRATION
14
58. In his Opposing Affidavit16 the First Respondent alleges that by becoming a
citizen by registration rather than by birth there will be no prejudice to the
Applicant. However this is not correct.
59. In terms of Section 11(2) of the Act “the Minister may, by order, deprive a
citizen of Zimbabwe by registration of his citizenship if he is satisfied
that…”.
60. A variety of circumstances are set out in the Section, some of which are
vague and in general terms, and these give the Second Respondent
considerably wide and discretionary powers which can be used to deprive a
person of citizenship and classify him/her as an alien.
61. If this does occur, and the former citizen is subsequently classified as an
alien, then the Immigration Act becomes relevant and in terms of Section 14
of that Act he/she is liable to be declared a Prohibited Immigrant. Section 14
of the Immigration Act contains a whole wide variety of ways in which an alien
can be classified as a Prohibited Person.
62. If a person is classified as a Prohibited Person then in terms of Section
17(1)(a) of the Immigration Act he/she “shall not enter or remain in
Zimbabwe.” In terms of Section 8(2) of that same Act he/she can be
detained in custody and then forcible deported from the country and not
allowed to enter it again.
63. Another disability of being a citizen by registration is that in terms of Section
13 of the Citizenship of Zimbabwe Act a person loses his Zimbabwe
citizenship if he/she is absent from Zimbabwe for a period of five years. There
16
OA Para. 3 Page 20
15
is no such provision in relation to citizenship by birth. This is relevant for
those like the Applicant who are furthering their careers outside Zimbabwe.
THE PROVISIONS OF SECTION 9 OF THE CITIZENSHIP OF ZIMBABWE ACT
ARE NOT APPLICABLE TO THE APPLICANT
64. To summarize therefore, it is respectfully submitted that the provisions of
Section 9 of the Citizenship of Zimbabwe Act are not applicable to the
Applicant for the following reasons.
65. Firstly, the Applicant was not, as at 6 July 2001, a dual citizen of Zimbabwe
and Mozambique. Consequently, Section 9(7) of the Act did not apply to him.
66. Secondly, the Applicant has never been a citizen of a foreign country.
Consequently, he has not breached Section 9(1) of the Act.
67. Thirdly, and as he has not acquired a foreign citizenship, Section 9(2) of the
Act does not apply to him. He was originally and remains a citizen by birth of
Zimbabwe.
CITIZENSHIP BY BIRTH OF ZIMBABWE
68. The concept of citizenship of this country first arose in 1949 with the
promulgation of the Southern Rhodesian Citizenship and British Nationality
Act 1949 (No.13, 1949). There were related and similar statutes promulgated
in the United Kingdom and in other colonies of the United Kingdom at that
time.
69. Section 6(1) and (2) of that Act was headed “Citizenship by Birth” and stated
as follows:
16
“6(1) Subject to the provisions of sub-section (3) of this section, every
person who was born before the commencement of this Act shall on the
date of commencement of this Act become a Southern Rhodesian
citizen by birth if he was born on or after the 12th day of September 1890
within the territories which at the commencement of this Act are
comprised in Southern Rhodesia.
(2) Subject to the provisions of sub-section (3) of this section, every
person born in Southern Rhodesia after the commencement of this
Act shall be a Southern Rhodesian citizen by birth.
70. So a person was a citizen if he/she was born in this country. There were
certain exceptions set out in Section 6(3) but these were very limited as they
dealt with envoys and enemy aliens.
71. The next statute relating to citizenship in this country was the Citizenship of
Rhodesia and Nyasaland Act 1957 (No. 12 of 1957), which was promulgated
during the Federation. Section 6 of that statute was in similar terms as the
1949 Act.
72. The next statute relating to citizenship in this country was the Citizenship of
Rhodesia and British Nationality Act 1963 (No. 63 of 1963). This statute is
relevant to this particular case as the Applicant, who was born on 29 April
1967, was born whilst it was in force. It is therefore relevant in relation to the
provisions of Section 5 of the present Constitution.
73. Section 6 of the 1963 Act stated in full as follows:
“6(1) A person born in Southern Rhodesia on or after the date of
commencement of this Act (which was, in terms of Section 2, defined as “on
17
the date of dissolution of the former Federation”) shall be a citizen of
Southern Rhodesia by birth unless –
(a) At the time of the birth of the person his father(i) Possessed such immunity from suit and legal proceedings as is
accorded to an envoy of a foreign sovereign power accredited to Her
Majesty; and
(ii) Was not a citizen of Southern Rhodesia.
Or
(b) At the time of the birth of the person(i) His father was an enemy alien; and
(ii) His mother was interned in a place set aside for the internment of
enemy aliens or the place of the birth of the person was under
occupation by the enemy.
(2) A person who was, immediately before the date of commencement of
this Act(a) A former citizen by birth; and
(b) a citizen of the former Federation;
Shall on that date become a citizen of Southern Rhodesia by birth.”
74. The next statute relating to citizenship in this country was the Citizenship of
Rhodesia and British Nationality Amendment Act 1967 (Act 25 of 1967). That
Act amended Section 6(1) of the 1963 Act by the insertion after paragraph (b)
of the following paragraph“or
18
(c) At the time of the birth of the person his father was a prohibited
immigrant in terms of a law relating to immigration in force in Rhodesia
or was not lawfully residing in Rhodesia in terms of such law:
Provided that if subsequent to his birth his father is accepted for
permanent residence in Rhodesia under a law relating to immigration in
force in Rhodesia, he shall be a citizen of Rhodesia by birth.”
75. The next statute relating to citizenship in this country was the Citizenship of
Rhodesia Act 1970 which was amended in 1972 and 1973 and published in
the Revised Edition of the Statutes in 1974.
76. Section 5 of the original 1970 Act dealt with citizenship by birth in the same
manner as Section 6 of the 1963 Act as amended by the 1967 Act. However
in terms of Act 49/72, which was incorporated into Chapter 23 of the 1974
Revised Edition, a new sub-section was added after Section 5(1)(c) which
stated as follows:
“5(1)(d) in the case of a person so born on or after the 12th January 1973,
at the time of his birth his father or, in the case of an illegitimate child,
his mother was(i)
Not a citizen of Rhodesia; and
(ii) Not ordinarily resident in Rhodesia”.
77. So up to the time of Independence, the main criteria for citizenship was the
place of birth of the person concerned. However, in 1972, the origin and
citizenship of the person’s parents at the time of that person’s birth became
more relevant.
78. As from the granting of Independence on 18 April 1980, the main laws
relating to citizenship in this country have been elevated to the Constitution of
19
Zimbabwe which was published as a Schedule to the Zimbabwe Constitution
Order 1979 (S.I. 1979/1600 of the United Kingdom). Chapter II of the
Constitution deals with citizenship.
79. Section 4 of Chapter II of the original Constitution as promulgated in 1979
stated as follows:
“4. A person who, immediately before the appointed day, was or was
deemed to be a citizen by birth, descent or registration shall, on and after
that date, be a citizen of Zimbabwe by birth, descent or registration , as
the case may be.”
80. Section 5(1) of the Constitution as originally promulgated in 1979 provided
for citizenship by birth in respect of persons born in this country on or after 18
April 1980 in the same manner as that contained in Section 5 of the
Citizenship of Rhodesia Act (Chapter 23) in the 1974 Revised Edition. This
meant that place of birth of the person concerned was still the main criteria.
81. The next relevant amendment to the citizenship laws relating to citizenship by
birth was Constitution Amendment No. 14 (Act 14/1996) which came into
effect on 6 December 1996.
82. The original Section 4 relating to persons born before 1980 stayed the same
as did the law relating to persons born in the period from Independence on 18
April 1980 to 6 December 1996.
83. However the original Section 5 was substantially amended for persons born
on or after 6 December 1996. The relevant portions of Section 5 as amended
by Constitution Amendment No. 14 (Act 1/1996) were as follows:
“5(1) A person born in Zimbabwe on or after the appointed day but
before the date of commencement of the Constitution of Zimbabwe
20
Amendment (No. 14) Act, 1996 shall be a citizen of Zimbabwe by birth,
unless-…(the remainder as in Section 5 of the original 1979 Constitution.
(2) (Not applicable as it applied to persons born outside Zimbabwe).
(3) A person born in Zimbabwe on or after the date of commencement of
the Constitution of Zimbabwe Amendment (No. 14) Act, 1996, shall be a
citizen of Zimbabwe by birth if at the time of his birth his father or his
mother is a citizen of Zimbabwe.”
84. So, for persons born on or after 6 December 1996, Constitution Amendment
No. 14 made the citizenship of the person’s parents equally important to the
place of birth of the person concerned. For a person to be a citizen by birth of
Zimbabwe, he/she had to be born in Zimbabwe and his/her mother or father
had to be a citizen of Zimbabwe at the time of his/her birth.
85. The most recent amendment to the citizenship laws in Zimbabwe was by
Constitution Amendment No. 19 (Act 1/2009) which came into effect on 13
February 2009. That Constitution Amendment repealed Chapter II in toto and
substituted it in substantially different terms.
86. The original Section 4, which stated that citizens before 18 April 1980 were
citizens after that date, does not appear in the new Chapter II.
87. In its place, there is a Section which deals with the concept of citizenship and
which is set out above17.
88. The new Section 5 deals with citizenship by birth as did the original one.
However, its provisions are materially different from the original one. Section
5(1), as it is now, states as follows:
17
Para. 21 of these Heads.
21
“5(1) Everyone born in Zimbabwe is a Zimbabwean citizen by birth if,
when he or she was born(a) either of his or her parents was a Zimbabwean citizen; or
(b) either of his or her grandparents was a Zimbabwean citizen by birth
or descent.”
It is respectfully submitted that for a person born in Zimbabwe to be a citizen
by birth of Zimbabwe, the above sub-section must be complied with.
89. It is further respectfully submitted that this sub-section is the sole provision in
terms of which a person born in Zimbabwe can qualify as a citizen by birth of
Zimbabwe: the previous Section 5 was repealed and is of no force or effect.
90. It is respectfully submitted that it is clear from the facts of this case that the
Applicant qualifies as a citizen by birth of Zimbabwe in terms of Section
5(1)(a) in that when he was born “either of his or her parents was a
Zimbabwean citizen”.
91. As stated earlier18, when the Applicant was born, his mother was a
Zimbabwean citizen. In fact she remained a Zimbabwean citizen throughout
her life. As she was born in 1943 she qualified as a Zimbabwean citizen by
birth in terms of Section 6 (1) of the 1949 Act. When the Applicant was born
in Zimbabwe on 29 April 1967 she was a Zimbabwean citizen in terms of
Section 6(1) of the 1963 Act. The Applicant’s case therefore complies with the
requirements of Section 5(1)(a) and he is therefore a citizen by birth of
Zimbabwe.
18
Para. 10 and 12 of these Heads.
22
92. In his Opposing Affidavit19, the First Respondent refers to Section 5(a)(ii) of
the Constitution and he attaches a copy of this provision to his opposing
affidavit as Annexure “B”. He asserts that this is the relevant provision of the
law in relation to this case and claims that it has not been complied with.
93. However this is clearly a wrong submission because that provision was
repealed by Constitution Amendment No. 19 in 2009 and is therefore of no
force or effect.
94. It should be pointed out that the Preamble to the Citizenship of Zimbabwe
Act 1984 contains the provisions of Sections 4,5,6 and 7 of the Constitution
as at 18 April 1980. These Sections have since been repealed and
substituted in the Constitution itself. The Preamble to the 1984 Act is
therefore out of date and needs updating especially in view of the provisions
of Section 6 of the Interpretation Act [Chapter 1:01].
DEPRIVATION OF CITIZENSHIP BY BIRTH
95. Dealing now with the Declaration, which is sought, that the provisions of
Section 9(7) of the Citizenship of Zimbabwe Act are ultra vires Section 9 of
the Constitution, it is necessary to outline the history in this country relating to
deprivation of citizenship by birth.
96. The 1949 Citizenship Act only provided for deprivation of citizenship if the
person concerned was a citizen by registration or naturalisation. Section
27(1) of that Act stated as follows:
“A Southern Rhodesian citizen who is a citizen by registration or a
naturalised person shall cease to be a Southern Rhodesian citizen if he
is deprived of his citizenship by an order made under this section…...”
19
OA Page 21 Para. 6.
23
97. It follows therefore that a citizen by birth of Southern Rhodesia could not be
deprived of his/her citizenship.
98. Even in the case of citizenship by registration or naturalisation, Section 27
stated that prior notice had to be given and an opportunity afforded to the
person concerned to make representations to a judicial body, namely the
High Court, against the action which was proposed to be taken against him.
99. Section 27(5) and (6) of the 1949 Act stated as follows:
“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
therefore 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
to the prescribed manner for an enquiry, the Governor shall refer the
case for enquiry and report, in accordance with rules of court, to the
High Court.”
100 . The 1957 Citizenship Act also only allowed for deprivation of citizenship if
the person concerned was a citizen by registration or naturalisation, not by
birth. Section 27(1) of that Act was in similar terms to Section 27(1) of the
1949 Act.
101 . Also as with the 1949 Act, Section 27(4) and (5) stated that even in the
case of registration or naturalisation prior notice had to be given and an
opportunity afforded to the person concerned to make representations to a
24
qualified judicial person, namely a Commissioner, who had to be qualified as
a Judge or senior advocate.
102 . The 1963 Citizenship Act also only allowed for deprivation of citizenship if
the person concerned was a citizen by registration or naturalisation, not by
birth. Section 18(1) of that Act provided for this. Section 18(4) and (5) was
similar to Section 27(4) and (5) of the previous Act.
103 . In the 1963 Act there was a provision, which was not included before.
Section 23 of that Act, stated as follows:
“ 23 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.”
104 . The term “citizenship” in the above Section was not qualified and must
therefore have included citizenship by birth. However, for a person to lose
his/her citizenship, he/she had to be “outside” the country and become a
foreign citizen by “some voluntary and formal act, other than marriage”.
105 . Section 15 of the 1970 Citizenship Act (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 with regard to right to notice and to be heard by a judicial body.
106 . Section 16(1)(a)(b) did provide 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
25
107 . 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.
108 . At Independence, for the first time, the main citizenship laws were elevated
from an Act of Parliament to the Constitution. This signified the importance of
citizenship in the newly independent Zimbabwe.
109 . Section 9 of the original 1979 Constitution stated as follows:
“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) (not applicable)
(b) subject to the provisions of section 8 (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 a citizen by birth, and who becomes a citizen of some other
country or a 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.”
(my underlining).
26
110 . In terms of the above provision, therefore, a citizen by birth of Zimbabwe
could not, under any circumstances, be deprived of his/her citizenship.
111 . In terms of Section 3 of the Constitution Amendment No. (Act 1/2003), the
original Section 9 was repealed and substituted by a new Section 9. This
new Section 9 stated as follows:
“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”.
(my underlining.)
112 .The provisions of this Section 9 introduced a significant amendment to the
citizenship laws in Zimbabwe because it specifically empowered
Parliament, for the first time, to pass a law to provide that a citizen by birth
27
could be deprived of citizenship but this was only limited to “on the grounds
that he is or has become a citizen of some other country”.
113 .Following the 1983 Constitutional Amendment, a new Citizenship of
Zimbabwe Act was promulgated by Act 23/1984 and in terms of the 1994
Revised Edition of the Statutes became Chapter 4:01. Section 9 of that Act
is headed “Prohibition of dual citizenship”.
114 .Sub-sections (1) and (2) of Section 9 of the Act have remained
unamended 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.”
115 .The original Section 9(7) stated as follows:
“9(7) A citizen of Zimbabwe of full age who, on the 1st 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.”
116 .The form and manner, which was prescribed, provided for renunciation in
terms of Zimbabwe law. In 2000 in the case of:
Carr v. Registrar-General 2000 (2) ZLR 433 (S)
The Registrar-General tried to argue 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) did not
28
provide for this and that renunciation in terms of Zimbabwe law was
sufficient.
117 . Following the above Supreme Court decision, the Citizenship of
Zimbabwe Amendment Act (Act 12/2001) was promulgated and came into
effect on 6 July 2001. Section 9(7) was repealed and substituted.
118 . The new Section 9(7), which is still in force, states as follows:
“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.”
119 . It cannot be disputed that the vast majority of people who renounced
during the six month period from 6 June 2001 to 6 January 2002 were
white. They renounced potential claims to citizenship to Britain and South
Africa. The perception at that time was that that was the only section of the
Zimbabwe population that was affected.
120 . It was only later after it was too late that the First Respondent started to
apply the provision, and, even worse, his wide and wrong interpretation of
the provision to the general population. The effect was that a large amount
29
of people, who were born in this country and regard this country as their
only home, were summarily and without any notice, stripped of
their
Zimbabwe citizenship and were therefore classified as aliens in the land of
their birth with all that that entails as explained earlier in these Heads. The
peculiar features of this provision has also been highlighted earlier in these
Heads20.
121 . Prior to Independence there was a migration over a prolonged period of
many people to this country especially from the surrounding countries and
particularly during the Federation period between 1953 and 1963, in
search of work. The extent of this migration was substantial and the result
of it is that a large amount of people who were born in Zimbabwe have one
or both parents who were born in a surrounding country.
122 . There was a recognition of this history in the Citizenship of Zimbabwe
Amendment Act 2003 (Act 12/2003) which dealt with persons who were
born in Zimbabwe of “migrant workers” from “SADC countries”. The original
Bill said that the Act would grant “exemption” to these people from having
to renounce. However, in the actual Act and especially the Regulations
published in terms thereof (S.I. 101A/2004) it was apparent that those
citizens were still being regarded as having lost their citizenship and were
therefore required to apply to “restore” their citizenship.
123 . In 2009 Section 9 of the Constitution was repealed and substituted, as
was the whole of Chapter II of the Constitution, by Constitution
Amendment No. 19 (Act 1/2009) which came into effect on 13 February
2009 and this is the Section which is now in force.
20
Para. 49-57 of these Heads.
30
124 . Section 9 states as follows:
“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.”
(my underlining).
125 . It is respectfully submitted that 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).
126 The power which is given to Parliament in relation to deprivation of
citizenship is that contained in Section 9(c). That Section specifically
empowers Parliament to provide for “the circumstances in which
persons qualify or lose their citizenship by descent or registration”.
127 . Highly significantly, neither in Section 9(c) or elsewhere in Section 9, is
Parliament empowered to pass laws to provide for deprivation of
citizenship in the case of citizenship by birth. Whereas the previous
Section 9 contained the proviso quoted earlier, the up-to-date Section
contains neither such proviso nor any equivalent provision.
128 . Section 8 of the up-to-date 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.
31
129 . The up-to-date section 8 states in sub-section (a) that an Act of
Parliament “must” provide for the establishment of a Citizenship and
Immigration Board to be responsible for “granting or revoking citizenship by
registration.” It specifically does not empower the Board to revoke
citizenship by birth. This emphasizes that a person who is a citizen by birth
cannot be deprived of his/her citizenship and it affirms the paramount
importance which the Constitution rightly assigns to citizenship by birth.
130 . Section 9, as it stands now, does state in sub-section (d) that an Act of
Parliament may provide for “any other matters regarding citizenship”.
However, it is respectfully submitted that that sub-section must be read in
the context of the preceding sub-sections and cannot be interpreted to give
Parliament unlimited powers. Otherwise there would be no point at all in
including the section.
131 . Another point relates to the definition of citizenship by birth. 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.
132 . 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.
133 . It is significant that in the Chapter II
introduced by Act 1/2009, the
previous Section 4 has been repealed and its provisions have completely
disappeared.
32
134 . The new Section 5 is the only provision relating to citizenship by birth. It
contains one set of criteria and its provisions apply to anyone born in
Zimbabwe, regardless of when he/she was born, who comes within its
terms. Any person who claims citizenship by birth of Zimbabwe has to
comply with its requirements.
135 . In this regard, Section 11 of the Interpretation Act states that:
“Every enactment shall be construed as always speaking and if
anything is expressed in the present tense, it shall be applied in
circumstances as they occur so that effect may be given to each
enactment according to its true spirit, intent and meaning.”
COMMON CITIZENSHIP
136 . A further important point is that Section 4 as contained in Constitution
Amendment No. 19 is headed “Zimbabwean Citizenship” and starts by
stating in sub-section (1) that: “There is a common Zimbabwean
citizenship….”. This signifies inclusive citizenship.
137 . These considerations were referred to in the Judgment in the Namibian
High Court case of:
Swart v. Minister of Home Affairs, Namibia 1997 NR 268 (HC)
Which stated that:
“Given the historical background within which our Constitution was framed,
it had to address the diversity of origin of all Namibia’s people to bring
about one nation under a common citizenship- accommodating everyone
with a rightful claim to such citizenship and, at the same time, affording
others the opportunity to become Namibians….”. (Page 274).
138 . Reference is also made to another Namibian High Court case of :
33
Tlhoro v. Minister of Home Affairs [2008] NAHC 65
At Paragraphs 17-22 and 30 of the Judgment by Maritz J.
139 . It is significant that the Inter-Party Agreement, which, by General Notice
244/2010 is part of Constitution Amendment No. 19 and therefore part of
the Constitution, deals in Article VII with “Promotion of Equality, National
Healing, Cohesion and Unity”. Paragraph (d) states that:
“The Parties hereby agree that the new Government will strive to
create an environment of tolerance and respect among Zimbabweans
and that all citizens are treated with dignity and decency irrespective
of age, gender, race, ethnicity, place of origin or political affiliation.”
140 . In International law, Article 15 of the Universal Declaration of Human
Rights states that:
“1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied
the right to change his nationality.”
141 . It is clear that Section 9(7) of the Citizenship of Zimbabwe Act breaches
the provisions of that Article in numerous ways as previously set out
herein.
CONCLUSION
142 . In conclusion, it is respectfully submitted that Section 9 of the Constitution
of Zimbabwe, as it now stands, prescribes the powers of Parliament in
relation to citizenship and that this Section does not empower Parliament
to deprive a citizen by birth of Zimbabwe of his/her citizenship of
Zimbabwe.
34
143 . It is also respectfully submitted that the effect of Section 5(1) of the
Constitution is that if a person fulfils the requirements set out in that
Section then he/she is a citizen by birth of Zimbabwe.
144 . It is further respectfully submitted that the effect of Section 9 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/her lifetime.
145 . Section 3 of the Constitution states that:
“ This Constitution is the Supreme law of Zimbabwe and if any other
law is inconsistent with this Constitution that other law shall, to the
extent of the inconsistency, be void.”
146 . It is therefore respectfully submitted that Section 9(7) of the Citizenship of
Zimbabwe Act, as amended by Act 12/2001, is ultra vires Section 9 of the
Constitution of Zimbabwe in so far as that provision relates to citizens by
birth of Zimbabwe.
147 . In conclusion, the Applicant seeks an Order as set out in the Draft Order.
DATED AT HARARE THIS
DAY OF JANUARY 2011
___________________________
BRYANT ELLLIOT
ZIMBABWE LAWYERS FOR HUMAN RIGHTS
100 Nelson Mandela Ave.,
Applicant’s Legal Practitioners,
6TH Floor Beverley Court/ HARARE
35
TO:
THE REGISTRAR
High Court of Zimbabwe,
HARARE;
AND TO:
CIVIL DIVISION OF THE
ATTORNEY-GENERAL’S OFFICE
1st and 2nd Respondent’s Legal Practitioners,
2nd Floor, Block “A”,
New Government Complex,
Cnr Samora Machel Av./4th St.,
HARARE; (Ref. 4/HA/6322 FC/eg)
AND TO:
MINISTER OF JUSTICE AND LEGAL AFFAIRS
3RD Respondent
3rd Floor New Government Complex
Samora Machel Avenue
HARARE
AND TO:
MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS
4TH Respondent
11th Floor, Compensation House,
HARARE
36
37