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The
new Constitution & citizenship - Constitution Watch 30/2013
Veritas
June 28, 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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