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New Constitution-making process - Index of articles
Citizenship - Constitution Watch Content Series 5/2011
June 29, 2011
and the New Constitution
Should the new
Constitution deal with citizenship?
the basis of every Independent State because a State is an abstract
concept comprising the people who live within a defined area. Of
the people who constitute a State it is the citizens who have a
right to determine who will govern them and, sometimes, to decide
the form which their government should take. The extent of the rights
accorded to citizens varies considerably from country to country.
are the building-blocks, as it were, of the State, and because in
most States the right to vote and stand for public office is reserved
to citizens, every State must specify who its citizens are and the
extent of their rights and duties in relation to the government.
This should be done in the constitution because if it is left to
ordinary legislation the government may be tempted to deprive citizens
of their citizenship, and hence of their vote, if it thinks they
will vote for the opposition. Citizenship, in other words, is too
important and fundamental to be left to ordinary legislation: the
rules by which people acquire and lose citizenship should be set
out in the constitution itself.
Hence the new
Zimbabwean constitution must deal clearly and comprehensively with
of Citizenship in Zimbabwe
history will almost certainly affect the way in which the new constitution
deals with citizenship. Between 1891 and 1948 everyone in this country
was a British subject, and after 1948 they were citizens of the
self-governing colony of Southern Rhodesia. There was no such thing
then as equal citizenship: Black citizens were not given the vote
until 1961, and then only partially, and other restrictions imposed
on Black citizens were so onerous that their citizenship meant very
full citizenship was given to:
born in Zimbabwe, whether before independence or after independence,
other than children of foreign diplomats, enemy aliens, illegal
immigrants, or foreign residents;
born outside Zimbabwe, if his or her guardian parent was a citizen
(but not if the guardian parent was a citizen by descent) or an
non-citizen resident of Zimbabwe;
who acquired citizenship by registration (i.e. became a naturalised
Dual or multiple
citizenship was specifically allowed - that is to say, people could
be citizens of Zimbabwe as well as of a foreign country. This was
generally regarded as a sop to Whites, most of whom were citizens
of Britain or South Africa, but as events showed it applied also
to Zimbabweans of Mozambican, Zambian and Malawian origin.
The right to
dual citizenship was removed from the Constitution
in 1983 and Zimbabweans who were dual citizens were required to
renounce their foreign citizenship if they wanted to remain citizens
of Zimbabwe. This proved difficult for the many Zimbabweans who
were descendants of Mozambican, Zambian and Malawian migrant workers,
so from 1990 to 2005 they were given a special dispensation (paragraph
3(1)(b) of Schedule 3 to the Constitution) so that they could vote
even though they had lost their citizenship. They were deprived
of this right, however, when it seemed likely that they would vote
for the opposition. Since then the Citizenship of Zimbabwe Act has
been amended to allow them to “confirm” their citizenship
and regain the right to vote [though how they can confirm something
which has been taken from them is a mystery].
One thing this
history makes clear is that citizenship should not become a plaything
for politicians, to be granted, taken away and restored at a political
whim. It must be protected by the Constitution itself.
and Responsibilities of Citizenship
is a bundle of rights and duties reflecting the relationship between
an individual and a State. The nature and extent of these rights
and duties vary from country to country.
Because of Zimbabwe’s
history, as outlined above, citizenship issues are likely to be
contentious when the new constitution is prepared, particularly
the issue of dual citizenship. To enable informed decisions to be
made on these issues, it may be helpful to examine the rights and
duties attaching to citizenship, and to see how far they extend
are the main ones:
to Protection from the State
entitled to protection from their State when they are within its
borders and when they travel outside it. The State protects them
by maintaining public order and ensuring that its laws are properly
enforced. In a country like Zimbabwe where fundamental human rights
are guaranteed by the Constitution, the State must ensure that those
rights are respected. When its citizens are in foreign countries,
the State must do what it can to uphold their rights in those countries.
duty to protect its people extends to non-citizens within its borders.
The police, for example, have just as much a duty to investigate
or prevent a crime committed against a Zambian or a South African
as they have in regard to a crime committed against a Zimbabwean.
The citizenship of the victim is immaterial. And the Constitution
confers on citizens and non-citizens alike the fundamental rights
to life, liberty, property and the protection of law.
States give their citizens the franchise, and some (Australia, for
example) impose a duty on citizens to cast their votes in national
elections. It should be noted, though, that not all citizens are
allowed to vote: children and lunatics cannot do so, and some countries
(Zimbabwe for example) deprive long-term prisoners of the right
to vote. Some countries (again Zimbabwe is an example) impose residence
qualifications on the right to vote so that citizens living outside
the country usually cannot vote in elections.
It should also
be noted that while the right to vote in national elections is usually
reserved to citizens, some countries allow non-citizens to vote
in local authority elections. Zimbabwe used to, but does not now.
And, as pointed out above, between 1990 and 2005 people of Zambian,
Mozambican and Malawian origin were allowed to vote in national
elections even though they were not Zimbabwean citizens.
of Allegiance or Loyalty to the State
As a corollary
to the State’s duty to protect its citizens, citizens owe
a general duty of allegiance to their State [it is the function
of the courts, not the Executive, to determine the extent of this
duty]. If citizens break their allegiance they may be guilty of
treason or an equivalent statutory crime. This applies not only
to citizens, however: States often expect all residents to be loyal
whether they are citizens or not. Hence in Zimbabwe treason can
be committed by citizens and by non-citizens who are ordinarily
resident in the country (section 20 of the Criminal
Obligation to Perform Military Service when Required
of their duty to be loyal to their State, citizens are expected
to perform military service in defence of the State when called
upon to do so. Again, this duty extends beyond citizens. In Zimbabwe,
although in practice there is no national service in the form of
military conscription, the National Service Act remains in force
and it imposes obligations on all residents, whether citizens or
Duty to Obey the Laws of the State
a duty to obey the laws of their State but once again this duty
is imposed equally on citizens and non-citizens. There is probably
no law in Zimbabwe, apart from laws relating to elections, that
apply only to citizens.
Duty to Pay Taxes
Just as citizens
and non-citizens must obey the laws of a State, so must they pay
taxes to the State, because tax laws are not imposed on the basis
of citizenship. Liability to tax usually depends on the taxpayer’s
residence or on the nature of the transaction that is being taxed.
Sometimes, as in the case of VAT, even temporary visitors are taxed.
Duty to Respect the National Flag and the National Anthem
This duty is
imposed on citizens by section 4(2)(b) of the Constitution. But
non-citizens are expected to show similar respect.
When the rights
and obligations that constitute citizenship are analysed, therefore,
it can be seen that there is little difference between citizens
and non-citizens except in regard to voting in national elections
- and even there, not all citizens are allowed the vote and in the
past even non-citizens have been allowed to vote.
The issues of
who should be given citizenship under the new constitution, and
whether dual citizenship should be allowed, must be viewed in this
light. We now turn to examine those issues, as well as the further
issue of whether citizens should be allowed to hold dual citizenship.
Should be Given Citizenship Under the New Constitution?
who is a citizen of Zimbabwe before the new constitution comes into
force must continue to be one afterwards. This is a point that was
ignored when the citizenship provisions of the present Constitution
were replaced by Amendment No. 19. Existing rights of citizenship
were not preserved, thereby throwing into doubt the citizenship
of all prior citizens from President Mugabe downwards. Such an absurd
result cannot have been intended, but it shows how important it
is for the new Constitution to preserve existing rights.
in Zimbabwe should be a citizen by birth under the new constitution,
irrespective of the nationality of his or her parents. The only
restriction might be that at least one of the parents should be
lawfully resident in the country. This would avoid the possibility
of people coming here from another country to have a child, just
so that the child can be a citizen of this country (which happens
regularly in the United States). It is important to ensure that
children born in this country are not stateless, because although
Zimbabwe is not a party to the UN Convention on the Reduction of
Statelessness, it is a party to the International Covenant on Civil
and Political Rights, which states in article 24.3 that every child
has a right to nationality. Moreover, the African Charter on the
Rights and Welfare of the Child requires member states to ensure
that their constitutional legislation provide for children to be
accorded the nationality of the States in whose territory they are
born if they have no other nationality (see article 6.4 of the Charter).
Under our current law a child could be left stateless if neither
of the child’s parents is a citizen of Zimbabwe and the child
does not acquire citizenship of another country through them (which
could quite easily be the case – a citizen by descent usually
cannot pass citizenship on to his children).
A person born
outside Zimbabwe, either of whose parents is a citizen of Zimbabwe,
should be a citizen by descent.
by registration should be available to anyone who has lawfully resided
in Zimbabwe for a minimum qualifying period. The qualifying period
should not be excessive; five years is more than sufficient (this
is the period currently laid down in the Citizenship of Zimbabwe
must be other qualifications, such as a clean criminal record, not
being a burden on the State, and so on. Provided the candidate meets
the requirements, he or she should be entitled to citizenship, although
there may need to be an overriding power granted to the executive
to refuse citizenship on specified grounds. Any such refusal should
be open to challenge in the courts.
of Zimbabwean citizens should be entitled to registration as citizens,
perhaps after a reasonable qualifying period and provided that the
State cannot show that the marriage is one of convenience (under
section 7(4) of the present Constitution, foreigners who marry citizens
are entitled to become citizens after five years’ residence
are found abandoned in Zimbabwe and whose parents cannot be identified
should be accorded Zimbabwean citizenship by birth because, as mentioned
above, the African Charter on the Rights and Welfare of the Child
requires our law to make provision for this.
or multiple citizenship
The new constitution
should not deprive Zimbabwean citizens of their citizenship solely
on the ground that they are citizens of foreign countries. There
are too many people born and bred in this country who through no
choice of their own are citizens of neighbouring countries, for
us to be exclusive in our citizenship. Some of the unforeseen problems
that arise when dual citizenship is abolished have been mentioned
earlier, and these problems will increase in future because the
children of Zimbabweans living abroad will acquire the citizenship
of their countries of birth as well as Zimbabwean citizenship by
If we allow
dual or multiple citizenship we shall be following the lead of some
at least of our neighbours. South Africa has allowed multiple citizenship
partially since 1995 and completely since 2004. Namibia allows dual
or multiple citizenship for its citizens by birth. Zambia allows
its citizens to hold foreign nationality until they reach the age
of 22, when they must choose between their Zambian and their foreign
Under our new
constitution, therefore, a citizen by birth (or descent) should
never lose his or her citizenship, except possibly if he or she
formally renounces it and only then if he or she is not left stateless.
A person who becomes a citizen by registration should not have to
renounce any previous citizenship held, though it would be fair
to provide that if such a person subsequently becomes a citizen
of yet another country, he or she should lose his or her Zimbabwean
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