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  • 2002 Presidential & Harare Municipal elections - Index of articles
  • Citizenship issues

  • , Back to CLG Update #19

    More information on citizenship issues
    Zimbabwe Lawyers for Human Rights (ZLHR)
    April 19, 2002

    Further to the explanation we issued in early March concerning citizenship and voting issues, we provide more information of relevance on citizenship issues. This is general information and is not intended to be regarded as "legal advice". It is important that you consult a lawyer, as each individualís circumstances are different.

    Before and during the 2002 Presidential Elections a plethora of court cases were brought in the High Court and Supreme Court on the issue of voting rights. The Citizenship Amendment Act, number 12 of 2001, stated that a Zimbabwean citizen with a foreign citizenship had to renounce their foreign citizenship, in accordance with the law of the foreign country of which he held citizenship, by 6 January 2002 or lose his citizenship of Zimbabwe. It was stated that people who did so were entitled to have permanent residence status stamped in their passports. The law was therefore very clear.

    However, the Registrar-Generalís office interpreted the Act to mean that all Zimbabwean citizens with a potential right to a foreign citizenship must renounce the foreign "entitlement" if they wished to remain Zimbabwean citizens. At this point it was alleged that the Registrar-Generalís office was removing affected people from the voters roll on the basis that they were no longer citizens of Zimbabwe. An application was brought to the High Court for a ruling on these points in the case of Tsvangirai v Registrar-General. The case also sought an extension of the deadline for a year because of the administrative problems faced by individuals attempting to renounce their various citizenships. A provisional order was granted by the High Court to the effect that the Registrar-General could only remove people from the votersí roll in accordance with the procedures set out in the Electoral Act and judgment was reserved on the other issues. On 27 February 2002 the Honourable Mr Justice Adam handed down judgment. The judgment extended the deadline for renunciation to 6 August 2002. The order also stated that Zimbabwean citizens by birth do not have to renounce a potential foreign citizenship unless they actually hold the said foreign citizenship. This was in line with another High Court judgment by the Honourable Mrs Justice Makarauís (below). The Registrar-General immediately appealed this judgment and Justice Adamís order was suspended.

    Meanwhile, on 25 January 2002 judgment in the matter of Tsvangirai v Registrar-General of Elections and 1 Other, and Tsvangirai v Registrar-General of Births and Deaths and 10 Others HH 22-2002 was handed down by the Honourable Mrs Justice Makarau. Amongst other things, she ordered that, "The Registrar-General shall restore to the votersí roll of any constituency, all voters who, on or before January 18 2002 were on that roll or were eligible but were refused to be on that roll, who may have lost or renounced their citizenship of Zimbabwe, but who since 1985, have been regarded by a written law to be permanently resident in Zimbabwe." The Registrar-General immediately appealed this judgment. On 15 February 2002 the Supreme Court of Zimbabwe sat to consider the appeal in this case. On 28 February 2002 judgment was handed down. The majority of the Supreme Court (Chidyausiku CJ, Ziyambi, Malaba and Cheda JJA) overturned Makarau Jís decision. They held that citizens and permanent residents are separate and distinct categories. In terms of section 3(3) of Schedule 3 to the Constitution, those who have renounced their Zimbabwean citizenship in terms of the 2001 amendment are considered to have ceased to be Zimbabwean citizens and summarily lost their right to vote. Therefore the Court considered section 25 of the Electoral Act to be superfluous or non-applicable to their situation. In a well-reasoned dissenting judgment the Honourable Judge of Appeal Mr Justice Sandura held that citizenship by either birth or registration includes permanent residency and therefore persons in either of these categories are entitled to remain on the votersí roll and vote both as citizens and as permanent residents, and when they renounce their citizenship, but remain permanent residents, they are entitled to vote in the capacity of permanent residents.

    Commencing late January 2002, numerous persons received notices of objections to their remaining on the votersí roll because they had either renounced their Zimbabwean citizenship or lost it by operation of the law. The Magistrates court dealt with some of these and a few of the objections were withdrawn after it was proved to the officials that the objections had been issued in error. The large majority of the objections were however referred to the High Court as stated cases. In Harare the matters set down were all dealt with as one case before the Honourable Justice Hlatshwayo. As the Registrar-Generalís Office did not oppose this, it was held that those who only had an entitlement to foreign citizenship should not have been affected by the exercise and were entitled to vote. However the Honourable Judge held that he was bound by the majority decision in the Supreme Court decision in the Tsvangirai v Registrar-General case and that the individuals concerned automatically ceased to be entitled to vote upon their ceasing to be citizens, either by renunciation or by operation of the law. The points raised about the failure by the Registrar-General to conduct the exercise in terms of the Electoral Act were dismissed on the grounds that there had been no need to follow the procedures set out in the Electoral Act since the loss of the right to vote was automatic. The whole of this judgment has been appealed by two of the concerned individuals and we await the determination of it by the Supreme Court. In Bulawayo an order was given that any person who was still a citizen of Zimbabwe was entitled to vote. To our knowledge this order was not complied with and numerous persons were denied their right to vote.

    During the period just before the election a number of statutory instruments were gazetted by the government with a wide effect on the Electoral law. The amendment that was of the most importance to the people affected by the citizenship disputes was one that empowered the Registrar-General to compile a list of people he considered were no longer entitled to vote: this list was to be sent to polling stations and those people who were on it were not to be allowed to vote unless they could prove that their matter had already been determined in their favour by the courts. The use of this list appears to have been erratic but certainly a number of people who were legally entitled to vote, but for the promulgation of this list, were denied their right.

    After the election it appears that the Registrar-General continues to apply the law to the effect that an individual with the right to a foreign citizenship who has not renounced this right has lost his Zimbabwean citizenship. People are being refused Zimbabwean passports and even birth certificates for their children on the grounds that they have not renounced their entitlement to foreign citizenship. While the decision by Justice Adam is on appeal it is important to note that the Registrar-General subsequently conceded that those Zimbabwean citizens who do not hold a foreign citizenship do not lose their entitlement to vote simply because they did not renounce an entitlement to a foreign citizenship. The reasoning behind this concession can only have been that these people continue to be citizens.

    Interested members of the public have informed us that the Registrar-Generalís Office is refusing to issue or renew passports for those Zimbabweans who have a claim or entitlement to a foreign citizenship. We are informed that such persons are being advised to reapply for Zimbabwean citizenship and are being asked to pay $25 000 and are being told that their application will take up to 18 months to process. It is our opinion that the case law indicates that such action is incorrect and that a logical interpretation of the Citizenship Act as amended is that unless you actually hold a foreign citizenship you cannot lose your Zimbabwean citizenship. While we feel that the error could and should be corrected voluntarily by the Registrar-Generalís Office we advise that the effects of losing your only citizenship could be catastrophic for the individuals concerned and advise them to seek legal advice as a matter of urgency.

    It is our opinion also that those Zimbabweans who are citizens by registration but who do not hold a foreign citizenship also do not lose their Zimbabwean citizenship by failing to renounce their potential foreign citizenship. The logic of the judgment by the Honourable Justice Adam can be applied equally to those Zimbabweans who were born in a foreign country but have lost their foreign citizenship by operation of the law when they acquired Zimbabwean citizenship. However, the order granted by the Honourable Justice Adam does not automatically apply to people in this category as it specifically refers to citizens by birth or descent. It is our advice therefore to people in this category that there is especial need that they should see a lawyer for advice as a matter of utmost urgency.

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