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A note on dual citizenship in Zimbabwe after Constitutional Amendment
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:
of Parliament in relation to citizenship: An Act of Parliament may
(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
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
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.
Chapter 2 of the SA Constitution states in Section 5 that:
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.
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:
acquired the citizenship of any other country by any voluntary
(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.
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
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.
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.
is based at, Kent Law School, the University of Kent and can be
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