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A note on dual citizenship in Zimbabwe after Constitutional Amendment No. 19
Alex T. Magaisa
December 05, 2008

An issue regarding citizenship rights has arisen in connection with the Agreed Draft of Constitutional Amendment No. 19, which is the precursor to Bill which is designed to pave way for the formation of the Inclusive Government in Zimbabwe. The matter of dual citizenship is a matter that concerns millions of Zimbabweans scattered across the world for reasons that are obvious.

Clause 9 of Chapter II which deals with citizenship states that:

"9 Powers of Parliament in relation to citizenship: An Act of Parliament may provide for—

(a) the prohibition of dual citizenship;
(b) procedures for the renunciation of citizenship;
(c) the circumstances in which persons qualify for or lose their citizenship by descent or registration; and
(d) any other matters regarding citizenship.

The cause of contention is the provision that a law may be made by Parliament to prohibit dual citizenship, which is underlined for emphasis. This issue has caused considerable concern among foreign-based Zimbabweans. This is more so because of the large numbers of Zimbabweans and their families who are based abroad. They still retain the love of and allegiance to their country and have no intention of renouncing their citizenship. At the same time, they are entitled to enjoy the rights, including citizenship rights that may accrue to them in the countries of residence.

In making submissions on the matter there is need for the Diaspora to be properly equipped in order to respond adequately to arguments that the policymakers and drafters of Amendment No. 19 may have for the position they have taken.

Matters of immigration are, of course, very sensitive and hard to deal with, as those of us in the Diaspora have experienced first hand. Each state has a right to control immigration and this argument will, no doubt, be put forward in support of the provision allowing for a law that may regulate immigration matters, including prohibiting dual citizenship.

Nevertheless, comparative legal analysis can be a useful tool to assess the weight of arguments on either side and the suitability of the chosen approach. It might help, therefore, to compare the provisions on citizenship in Draft Amendment No. 19 with those in comparable jurisdictions that have apparently better and more progressive constitutions. Now, if we do that, we are likely to find that the provision regarding dual citizenship is not drastically out of sync with general practice but do require refinements to protect a certain category of citizens.

To my mind, a constitution does not have to expressly allow dual citizenship. I appreciate that it may be that other Constitutions do. Rather, it is a right that is follows naturally from a person's citizenship (and other) rights in the Constitution. The question is whether the Constitution itself or through another law can specifically provide for its curtailment. A comparative look at selected jurisdictions shows that what the Constitution may indeed provide for a law to deal with citizenship issues, including the loss of citizenship, in the same way, perhaps, that a constitution may provide for the loss of the right to life in fulfilment of a lawfully imposed death penalty. Such derogations have to submit to the normal standards of what is generally recognised in an open and democratic society.

Now, I have had a quick look at the constitutions of South Africa and Namibia which are generally held in high regard.

South Africa

Chapter 2 of the SA Constitution states in Section 5 that:

"5. Citizenship

1. There shall be a South African citizenship.
2. South African citizenship and the acquisition, loss and restoration of South African citizenship shall, subject to section 20 read with section 33 (1), be regulated by an Act of Parliament".

It can be observed that this provision in paragraph 2, permits that a law may be enacted by Parliament to regulate the 'acquisition, loss and restoration of South African citizenship-. That law, in my opinion would be subjected to challenges in so far as it derogates from the citizenship rights protected by the Constitution. This in some ways is not dissimilar to Draft Amendment No. 19's provision providing for a law which may provide for the prohibition of dual citizenship. The difference, however, is that Draft Amend No. 19 makes reference to the rogue phrase, 'dual citizenship' and if I were to advocate for any change on this point, it would be that this phraseology should be withdrawn to simply leave a general term providing for the loss of citizenship as does the SA constitution. That it is mentioned appears to give a negative signal that government has intentions to make a law to prohibit dual citizenship. However, let us see Namibia's case, which seems more preferable.

Namibia

Article 4(8) of the Namibia Constitution provides that:
"(8) Nothing in this Constitution shall preclude Parliament from enacting legislation providing for the loss of Namibian citizenship by persons who, after the date of Independence:

(a) have acquired the citizenship of any other country by any voluntary act; or

(b) have served or volunteered to serve in the armed or security forces of any other country without the written permission of the Namibian Government; or

(c) have taken up permanent residence in any other country and have absented themselves thereafter from Namibia for a period in excess of two (2) years without the written permission of the Namibian Government: provided that no person who is a citizen of Namibia by birth or descent may be deprived of Namibian citizenship by such legislation".

It is clear that paragraph (a) above shows that dual citizenship may be prohibited in Namibia by an Act of Parliament as is the case with Zimbabwe-s Draft Amendment No. 19. However, there is an important difference. It is that the Namibian provision is subject to an important proviso, which is that 'no person who is a citizen of Namibia by birth or descent may be deprived of Namibian citizenship by such legislation'. This is crucial because it upholds the priority of rights of those who are Namibian citizens by birth or descent. In other words, for these persons, their rights to dual citizenship cannot be prohibited by such a law. It means, therefore, that only those citizens who acquire citizenship by other means, e.g. registration, marriage, etc may be prohibited from holding dual citizenship. But note that there is no provision expressly providing for dual citizenship - there is simply an acknowledgement that it is an existing right which cannot be taken away by legislation.

So from the above it seems to me that the Namibian provision provides a greater level of protection to 'natural' citizens, for lack of a better adjective - those who get it by birth or descent - which is the case for most Zimbabweans in the Diaspora. What they may, therefore, push for is that type of protection, i.e. that the law which Parliament may pass regulating dual citizenship should not and cannot take away the rights of citizens by birth or descent. The state can, as is the case in Namibia, retain the power to prohibit by law dual citizenship for those that acquire citizenship by other means but under no circumstances should rights of citizens by birth of descent be affected.

Recommendation

The tool for that would be a proviso to Clause 9 of Draft Amendment No. 19, saying, that 'no person who is a citizen of Zimbabwe by birth or descent may be deprived of Zimbabwean citizenship by such legislation'

In fact, the MDC draft of Amendment No. 19 contained a similar provision, which is better than the provision in the Agreed Draft. It states that "An Act of Parliament may make provision, not inconsistent with this Chapter, in respect of citizenship and, without prejudice to the generality of the foregoing, for— (a) . . . ; (b) depriving any person, other than a citizen by birth or descent, of his citizenship of Zimbabwe, provided that no person shall be deprived of his citizenship of Zimbabwe if he is thereby rendered stateless".

The underlined words show clearly that whatever law may be passed to deprive citizenship, it should not affect citizens by both or descent. It is difficult to understand why this reasonable clause was not carried forward into the draft and legislators are encouraged to reconsider it.

Zimbabwe could do well to retain within its ranks the millions who have settled in other countries. It is not in its interests to alienate them by taking away their citizenship rights. Safeguarding those citizenship rights is mutually beneficial to Zimbabwe and her children.

Alex Magaisa is based at, Kent Law School, the University of Kent and can be contacted at wamagaisa@yahoo.co.uk or a.t.magaisa@kent.ac.uk

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