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The legal position on dual citizenship – Alex Magaisa

By Alex T. Magaisa

The legal position on dual citizenship is fairly simple and straightforward on paper (on paper, because as this article shows, the administrative machinery is deliberately obstructive, stubborn and inefficient).

Registra-General Tobaiwa Mudede (in glasses)
Registra-General Tobaiwa Mudede (in glasses)

Otherwise the legal position is clear:

Any person who is a Zimbabwean citizen by birth is entitled to dual citizenship. In fact, he or she is entitled to multiple citizenship, as there are no limits to citizenships that he or she may hold, apart from their Zimbabwean citizenship. A person is not required by law to renounce his or her foreign citizenship before he or she can exercise his or her Zimbabwean citizenship.

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This is the present law, which is in direct contrast to the law prior to the new Constitution of Zimbabwe, which was adopted in 2013. Prior to that, dual citizenship was prohibited for all classes of citizens under the Citizenship Act.

That dual citizenship for citizens by birth is now permitted is provided for in the Constitution, and has been confirmed in two important decisions of the Constitutional Court of Zimbabwe, which is the highest court in the land. In both cases, Mawere (2013) and Madzimbamuto (2014) the Constitutional Court confirmed that dual citizenship for citizens by birth is permitted and protected by the Constitution.

Mutumwa Mawere, a prominent entrepreneur, brought his case shortly before the 2013 elections, and soon after the adoption of the new Constitution, asserting his citizenship rights, including the right to be issued with a national identity document which would enable him to register as a voter in the then forthcoming elections. Mawere had previously been stripped of his Zimbabwean citizenship after he became a South African citizen in the days when dual citizenship was prohibited in Zimbabwe.

In his application, he argued that as a citizen by birth, he was entitled, under the new Constitution, to dual citizenship and he was not required by the law to renounce his South African citizenship before he could be issued with a Zimbabwean national identity document. In a landmark decision, the court granted his application, and in the process confirmed the constitutional recognition of dual citizenship under Zimbabwean law. Significantly, the decision also confirmed that no formalities were required before one could enjoy his citizenship rights.

The Madzimbamuto further reinforced the position, compelling citizenship authorities and the Registrar-General to comply with the new Constitution in recognising dual citizenship. As the learned judge said in the Madzimbamuto case,

“… 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”.

Thus there is no doubt whatsoever, both in the constitution and in the judgments of the highest court in the land, that citizens by birth are perfectly entitled to dual citizenship and there are no formal hoops that one must go through before he or she can enjoy this right.

This means they are entitled to all the benefits of citizenship such as the right to a passport and identity documents. Critically, they are also entitled to freedom of movement which is guaranteed by s. 66 of the constitution.

Zimbabwean Citizen with a Foreign Passport

Freedom of movement means a Zimbabwean citizen can move freely into and out of Zimbabwe, without restrictions. There are situations where Zimbabwean citizens have faced problems at the airport, whereupon seeking entry, they have been subjected to restrictions on account of the fact they hold a foreign passport. This is unlawful, as confirmed by the Constitutional Court.

In the Madzimbamuto case, the immigration authorities insisted on treating the applicant as an “alien” because he presented a South African passport which he held at the time, even though there was evidence that he was a Zimbabwean citizen. The authorities had restricted his stay in Zimbabwe to a specific period, which limited his rights as a Zimbabwean citizen. As the court stated, the fact that he was a citizen of another country did not entitle the authorities to treat him as an alien or to restrict his stay in Zimbabwe. As a dual citizen, he was entitled to full citizenship rights, including unrestricted entry and stay in Zimbabwe. This is why he sought the court’s assistance to compel the authorities to grant him unrestricted stay in Zimbabwe even though he was holding a foreign passport.

The Constitutional Court stated that restrictions which the immigration authorities were imposing were a violation of the citizen’s freedom of movement. As the Court stated,

“A purposive interpretation of the right conferred in s 66 [freedom of movement] 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.”

Now, there are many Zimbabweans who, upon arriving at Harare International Airport, or other port of entry, have been asked by immigration authorities how long they want to stay in Zimbabwe. Oft-times, the immigration officer stamps the passport, stating a date by which one must leave Zimbabwe. The situation is probably worse for Zimbabwean citizens holding foreign passports, as Madzimbamuto found out.

However, these enquiries and the limited endorsements on the passport are unnecessary and unlawful if the person is a Zimbabwean citizen by birth. A citizen by birth cannot have his right to enter and leave Zimbabwe restricted by immigration authorities, and as the Court stated, even when they are using a foreign passport.

Administrative Barriers

At a practical level, a citizen by birth is entitled, without going through any formalities, to apply for a passport and national identity documents or indeed any other benefits to which citizens are entitled.

The problem is at the administrative level where the long-serving Registrar-General, Mr Tobaiwa Mudede, continues to be a nuisance, defying not only the Constitution but also the judgments of the Constitutional Court, which I have already described. A very clear example of the stubbornness is apparent on the face of the website of the Office of the Registrar-General. This is what it states on its citizenship page: 

“Prohibition of dual citizenship

No adult citizen of Zimbabwe shall be entitled to be a citizen of foreign country. However, minors are allowed to enjoy dual citizenship until they turn 18 but before the 19th birthday they have to make a choice as to their preference of citizenship”.

This is completely wrong, misleading and in total conflict with the constitutional position that I have already described. In research that my team conducted earlier this year at the Registrar-General’s Office, we found that officers were oblivious of the reforms that have been introduced by the new Constitution. For them, dual citizenship was still prohibited.

Many people who have written to me over the months, seeking clarification over the dual citizenship issue, have expressed concern over the conduct of the Registrar-General’s Office and immigration authorities at the ports of entry. Basically, it’s apparent that the administrative bottle-necks have ensured that people are not able to enjoy their right to dual citizenship. It is also because of these same unreasonable and illegal formalities that thousands of persons previously robbed of their citizenship were unable to register to vote in the last election. All this is completely wrong.

The Registrar-General might say they are awaiting realignment of the citizenship laws with the new Constitution but this is unreasonable because the highest court in the land has already invalidated the provisions of the citizenship law which previously prohibited dual citizenship. Indeed, the Court itself stated in the Mdzimbamuto case that it is not the Constitution that must conform to the immigration regulations, but the regulations must conform to the Constitution and if they do not conform then they are unlawful and invalid. The duty of the Registrar-General is to enforce the decision of the courts, not on a case by case basis, but more generally because the infringing provisions have been struck down as invalid.

The only reason for refusing to recognise dual citizenship rights is sheer arrogance and stubbornness on the part of the Registrar-General. Unfortunately, Government seems to allow this flagrant disregard of the law. This is notwithstanding the fact that the Diaspora, which is mistreated in this way, has become a key contributor to the country’s economy over the years. In his Mid-Term Fiscal Review, Finance Minister Patrick Chinamasa, stated that remittances from the Diaspora in the first 6 months of 2015 amounted to $409 million. This is not far from receipts from mineral exports at $653 million and higher that proceeds from tobacco sales at $321 million.

And while proceeds from commodities are projected to decline, remittances from the Diaspora will grow. Yet Mr Mudede and immigration authorities continue to treat the Diaspora with disdain. It’s high time the Government treats its citizens abroad fairly and with respect. They must get Mr Mudede and the Immigration authorities to do their job and to respect the Constitution and the Constitutional Court.

The Constitution is the Supreme Law of the land. Parliament’s powers are provided for under the Constitution. This means Parliament has no power apart from what the Constitution provides for. It cannot act outside or beyond its constitutional powers.

Parliament’s powers in regard to citizenship are provided or under section 42. These are the only powers that Parliament can exercise in respect of citizenship. No more than that as it would be unconstitutional.

Paragraph (e) specifies that Parliament may make a law providing for “the prohibition of citizenship in respect of citizens by descent or registration”.

This provision clearly restricts the categories of citizenship that may be affected by Parliament’s exercise of its powers to prohibit dual citizenship to citizens by “descent” and “registration”. The fact that it does not include the category of citizens by “birth” means that Parliament’s power to make laws regarding dual citizenship does not extend to that category.

To be sure, Parliament’s power on dual citizenship is restricted only to citizens by descent and registration and does not extend to citizens by birth. That much is clear. Therefore, Parliament cannot purport to exercise powers regarding dual citizenship over citizens by birth when the constitution does not give it those powers. To do so would be ultra vires the Constitution.

In fact, when all is said and done, it’s not just dual citizenship that is open to citizens by birth but multiple citizenship. The Constitution is that progressive.

Further, as I have already stated on this thread, that the Constitution allows dual citizenship is easier to appreciate when you look at the history of the clause. The old Constitution allowed Parliament to exercise powers to prohibit dual citizenship in respect of all citizens, whether by birth, registration or descent. The fact that the new Constitution now omits citizens by birth from the list is a clear indication that the Constitution has restricted the powers of Parliament.

Finally, it matters to point out that even the new Constitution does not prohibit dual citizenship for any citizen. All it does in respect of citizens by descent or registration is to allow Parliament to exercise the power of prohibition of dual citizenship. Section 42 is not mandatory, hence the use of the word “may” in regard to the exercise of Parliament’s powers. It means that Parliament may choose not to enact a prohibition provision

At present the Citizenship Act contains a prohibition in respect of all categories of citizens. But because of the new Constitution, the part prohibiting dual citizenship for citizens by birth is now inconsistent with the new provisions. Parliament has to amend it as part of the legislative realignment or a litigant can challenge it in a court of law. The first route is quicker and cost-effective.

I can’t explain it any better than I have done. Anyone who does not understand needs further help elsewhere, which is beyond my powers.

Dr Alex T. Magaisa can be reached on [email protected]. This article was initially published on his website: AlexMagaisa.com