CONSTITUTION WATCH 31/2013

[28th June 2013]

The New Constitution & Citizenship

There have been media reports that the new Constitution, whose provisions relating to citizenship, voting and elections came into operation on 22nd May 2013 [the publication day of the new Constitution], gives aliens the right to vote in the forthcoming election.  These reports are not entirely true.  Only citizens will be entitled to vote, but the new Constitution confers citizenship on several classes of people who have hitherto been regarded as aliens and denied the vote.

In this Bill Watch we shall outline the law on citizenship.

Who is a Citizen?  Effect of the New Constitution

Much of our citizenship law has not been changed by the new Constitution;  there are still three types of citizenship:  citizenship by birth, by descent and by registration.  Broadly speaking, under the new Constitution and under the previous law you are a citizen if:

• You were born in Zimbabwe and your mother or your father was a Zimbabwean citizen in which case you are a citizen by birth. [section 36(1)(a) of the new Constitution]
• You were born in Zimbabwe and neither of your parents was a Zimbabwean citizen but any of your grandparents was a citizen by birth or descent again, you are a citizen by birth [section 36(1)(b) of the new Constitution].
• You were born outside Zimbabwe and either your mother or your father was a Zimbabwe citizen, you are a citizen by birth if your citizen parent normally lived in Zimbabwe or was working for the Government or an international organisation;  if not, and your parent or grandparent was a Zimbabwe citizen by birth or descent, then you are a citizen by descent [section 36(2) of the new Constitution].
• You have been married to a Zimbabwean citizen for at least five years you will be a citizen by registration if you apply for citizenship and satisfy any conditions prescribed in the Citizenship of Zimbabwe Act — [section 38(1) of the new Constitution] — no such conditions have in fact have been prescribed.
• You have lived in Zimbabwe for 10 years and your application to be registered as a citizen has been accepted by the Minister of Home Affairs you are a citizen by registration [section 38(2) of the new Constitution] — the ten-year period is fixed in the new Constitution, whereas the Citizenship of Zimbabwe Act required residence for only five years].
• You were adopted as a child by a Zimbabwean citizen and you have applied for registration as a citizen [You become a citizen by registration when your application is granted — and it must be granted] [section 38(3) of the new Constitution].

The New Constitution has made Few Real Changes to our Citizenship Law:

• As mentioned above, it has lengthened from five to ten years the period of residence required for citizenship by registration.
• Foundlings — i.e. children under 15 who are found in Zimbabwe and whose parentage is unknown — are deemed to be citizens by birth [section 36(3) of the new Constitution]
• It has conferred citizenship by birth on people who were born in this country and descended from SADC citizens, so long as they were ordinarily resident in Zimbabwe on 22 May 2013 [section 43(2) of the new Constitution] [Under the previous law the position of such people was anomalous.  They were in practice deprived of their citizenship and officially treated as aliens, on the ground that they were citizens of SADC countries and had not renounced this foreign citizenship in terms of the law of those countries, as envisaged under section 9 of the Citizenship of Zimbabwe Act passed in 1984.  Section 9 banned dual citizenship generally, and in 2001 was amended to require submission of proof to the Registrar-General of renunciation of foreign citizenship under the foreign law.  Then, in 2003, there was an amendment to the Citizenship Act which allowed some people in the “SADC origins category” – namely descendants of migrant unskilled workers – an alternative – to approach the Registrar-General to complete Zimbabwean forms to renounce their foreign citizenship and “confirm” their Zimbabwean citizenship.  Many people in this category, especially agricultural workers who had been displaced, were unable to “confirm” their Zimbabwean citizenship by reason of not having the correct papers or sufficient resources to travel to registration centres, and for practical purposes they continued to be treated as aliens.  Under the new Constitution, however, these people are now citizens by birth.]
• It has conferred citizenship as an absolute birthright on people born in this country;  i.e. it permits citizens by birth to hold dual citizenship [section 42(e) of the new Constitution]
• It has restricted the grounds on which citizenship may be revoked [section 39 of the new Constitution] and, as just pointed out, it has prohibited the State from revoking a person’s citizenship by birth on the ground that he or she is a citizen of a foreign country.

Rights of Citizens

It should be emphasised that citizens by birth and descent are citizens automatically;  their citizenship is not conferred by the Registrar-General, nor does it depend on the holding of a “citizen” ID document or a Zimbabwean passport.  Obviously, in order to obtain those documents citizens must show they have all the qualifications for citizenship, but they should understand that when issuing them with IDs and passports the Registrar-General is not conferring a privilege on them:  he is respecting their pre-existing rights of citizenship.

For clarity, all citizens of Zimbabwe [including citizens by registration] are entitled:

• to passports and other travel documents [section 35(3)(b) of the new Constitution]
• to birth certificates and national IDs [section 35(3)(c) of the new Constitution]
• to free, fair and regular elections [section 67(1)(a) of the new Constitution];  and,
• in the case of adults, to vote in elections [subject to being registered as voters] and to stand for public office [section 67(3) of the new Constitution]

Previous Policy

Many Zimbabweans have been deprived of their citizenship rights, due to a misapplication of the requirement under Zimbabwean law to renounce any foreign citizenship in order to retain Zimbabwean citizenship.  The policy of the Registrar-General’s Office has been to register as “aliens” all Zimbabweans who have a perceived or actual claim to citizenship of another country, whether they are actually foreign citizens or not.  And once registered as aliens, these people were removed from the voters’ roll as they were no longer deemed to be citizens.

This policy is and always has been illegal.  The Citizenship of Zimbabwe Act, Renunciation of Foreign Citizenship: Governing Rules (General Notice 584 of 2002) state that a person who merely has a claim or entitlement to foreign nationality is not a foreign citizen and therefore cannot be required to renounce a citizenship that he or she does not actually and presently possess.

Regrettably, the Registrar-General seemed reluctant to change this policy.  As soon as the new Constitution was published, Mr Mutumwa Mawere, a Zimbabwean by birth who subsequently acquired South African citizenship, approached the Registrar-General to have his Zimbabwean citizenship recognised in accordance with the new constitutional provisions.  The Registrar-General informed Mr Mawere that he was not entitled to dual citizenship under the new Constitution, and that he had to renounce his foreign citizenship in order to acquire Zimbabwean identification documents.  Mr Mawere lodged an urgent application at the Constitutional Court requesting that his entitlement to dual citizenship be confirmed and asking that, to protect his right to vote in the upcoming elections, the current “special and intensive” voter registration exercise be postponed pending the court’s decision.  Immediately after hearing the case on 26th June, the Constitutional Court granted an order confirming his dual citizenship and making the following declaration: “ ... the refusal or failure to issue the applicant with a national identity document upon application on May 27, 2013, was unlawful and in contravention of section 36(1) and applicant’s right to vote enshrined in section 67(3)(a) of the Constitution of Zimbabwe.  The [Registrar-General] is interdicted from demanding the applicant to first renounce his foreign-acquired citizenship before he can be issued with a national identity document”.  The court’s reasons for judgment will be handed down later.

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