SUMMARY

Constitutional law – Constitution of Zimbabwe 2013 – citizenship – by birth – cannot be revoked – revocation of citizenship or declaration as prohibited immigrant made before new Constitution came into effect – no longer relevant

Whitehead v Registrar-General & Ors S-21-15 (Garwe JA, Ziyambi & Guvava JJA concurring) (Decision given 13 September 2013; judgment made available 16 April 2015)

The appellant was born in Zimbabwe (then Southern Rhodesia) in 1944; his mother was born here in 1917. His father was South African by birth and came here in 1939. The first respondent (the Registrar-General) confiscated the appellant’s Zimbabwe passport in 2005 on the grounds that the appellant had not renounced his South African citizenship (by descent). The appellant then obtained a South African passport. The Minister of Home Affairs shortly afterwards declared the appellant to be an undesirable inhabitant or visitor to Zimbabwe. In 2011 the appellant sought a declaratur in the High Court that (a) he was a citizen by birth, (b) the order issued by the Minister was unlawful and consequently null and void, and (c) as a citizen by birth he was entitled to all the rights and privileges that are enjoyed by a citizen, including the right to a Zimbabwean passport. The court concluded that, once a Zimbabwean citizen acquires foreign citizenship, he immediately ceases to hold Zimbabwean citizenship and dismissed the application.

Section 36(1) of the 2013 Constitution, which came into effect on 22 May 2013, provides that “Persons are Zimbabwean citizens by birth if they were born in Zimbabwe and, when they were born … either their mother or their father was a Zimbabwean citizen”. The appellant had argued that the fact that he also held South African citizenship did not disentitle him, under the new Constitutional dispensation, to his Zimbabwean citizenship by birth and that citizenship by birth cannot be revoked by the State. The first respondent argued that the appellant lost his Zimbabwean citizenship by operation of law. He was also declared a prohibited immigrant. His status as a prohibited immigrant remained extant and consequently it would not be competent for him to be declared a citizen of Zimbabwe by birth.

Held: (1) the first respondent’s argument overlooked the fact that there was a new Constitution in force and that new rights had been created by the Constitution. The argument was also oblivious of the fact that any existing law that is inconsistent with the new Constitution is invalid to the extent of such inconsistency. Thus, any provision in the Citizenship of Zimbabwe Act [Chapter 4:01] or the Immigration Act [Chapter 4:02] that is inconsistent with the provisions of s 36 of the current Constitution would be invalid to the extent of such inconsistency.

(2) The appellant was born in Zimbabwe and, at the time he was born, both his parents were Zimbabwean citizens. The appellant was, by operation of law, a citizen of Zimbabwe by birth. Such citizenship cannot be revoked by the State except in the circumstances provided for under s 39(2) of the Constitution, that is, in cases of fraud, misrepresentation or concealment of a material fact or, in the case of a child found in Zimbabwe and presumed to be a Zimbabwean citizen by birth, it is established that in fact the child was a citizen of another country. None of these applied, so a decision to revoke his citizenship or to declare him a prohibited immigrant is clearly unlawful. The fact that the appellant also enjoyed South African citizenship or that at some stage he was branded a prohibited immigrant was now no longer relevant. He was a citizen by birth in terms of s 36(1) of the Constitution and entitled to all the benefits of citizenship. That was the end of the matter.

END OF SUMMARY 

REPORTABLE        (25)

ROLAND     WHITEHEAD

v

REGISTRAR     GENERAL     OF     CITIZENSHIP     (2)     CO-MINISTERS     OF     HOME     AFFAIRS     (3)     MINISTER     OF     JUSTICE     AND     LEGAL     AFFAIRS     (4)     MINISTER     OF     CONSTITUTIONAL     AND     PARLIAMENTARY     AFFAIRS

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, GARWE JA & GUVAVA JA,

HARARE, SEPTEMBER 13, 2013

L. Uriri, for the appellant

C. Mudenda, for the first respondent

No Appearance for the second - fourth respondents

GARWE JA

[1]        After hearing counsel and perusing the papers filed of record, the court made the following order:-

“1.       The appeal is allowed with no order as to costs.

2.         It is hereby declared that the appellant is a citizen of Zimbabwean by birth in terms of section 36 of the current Constitution.

3.         Reasons for this order are to follow in due course”.

[2]        What follows are the reasons for the order.

BACKGROUND

[3]        The appellant was born in this country, then known as Southern Rhodesia, on 15 April 1944.  His mother, Enid Marjorie Whitehead, was also born in this country on 11 April 1917.  His father, born in South Africa, migrated to the then Southern Rhodesia in 1939 and later married the appellant’s mother.  At the time when the appellant was born, both his parents were citizens of this country, his mother by birth and his father by naturalization.

[4]        In October 2005 the first respondent confiscated the appellant’s Zimbabwean passport on the basis that he had not renounced his entitlement to South African citizenship.  The appellant then applied for South African citizenship and was subsequently issued with a South African passport.  On 16 December 2005, he was declared an undesirable inhabitant or visitor to Zimbabwe by the Minister.

PROCEEDINGS IN HIGH COURT

[5]        On 25 March 2011, the appellant, as applicant, filed a court application with the High Court at Harare seeking a declarator that (a) he was a citizen by birth, (b) the order issued by the Minister was unlawful and consequently null and void, and (c) as a citizen by birth he was entitled to all the rights and privileges that are enjoyed by a citizen, including the right to a Zimbabwean passport.

[6]        The first respondent opposed the relief sought.  It was his contention that although the applicant was a citizen by birth, he had lost such citizenship as a result of his failure to comply with certain renunciation requirements.  Constitution of Zimbabwe Amendment (No. 3) of 1983 made provision for an Act of Parliament to be passed prohibiting dual citizenship.  Consequent thereto, s 9 of the Citizenship of Zimbabwe Act [Chapter 4:01] prohibited all forms of dual citizenship.

[7]        The court a quo, after hearing argument, concluded that, once a Zimbabwean citizen acquires foreign citizenship, he immediately ceases to hold Zimbabwean citizenship.  In the result, in a judgment dated 13 September 2012, the court a quo dismissed the application with no order as to costs.

[8]        It is that order that the appellant has challenged before this Court.

NEW CONSTITUTION ENACTED

[9]        On 22 May 2013, almost four months before the hearing of the appeal, the new Constitution i.e. Constitution of Zimbabwe Amendment (No. 20) Act 1/13 came into operation.  In s 36(1) thereof the Constitution provides:-

“(1)      Persons are Zimbabwean citizens by birth if they were born in Zimbabwe and, when they were born-

1. Either their mother or their father was a Zimbabwean citizen; or
2. … (not relevant).”

APPELLANT’S SUBMISSIONS ON APPEAL

[10]      On the authority of the judgment of this Court in Mutumwa Dziva Mawere vs Registrar General & Ors CCZ 4/15, the appellant has argued that the fact that he also holds the citizenship of South Africa does not disentitle him, under the new Constitutional dispensation, to his Zimbabwean citizenship by birth.  He further argued that citizenship by birth cannot be revoked by the State.

FIRST RESPONDENT’S SUBMISSIONS ON APPEAL

[11]      The first respondent does not agree.  He has submitted that the appellant lost his Zimbabwean citizenship by operation of law.  He was also declared a prohibited immigrant.  His status as a prohibited immigrant remains extant and consequently it would not be competent for him to be declared a citizen of Zimbabwe by birth.

WHETHER APPELLANT IS A CITIZEN UNDER THE CONSTITUTION

[12]      It is clear that the argument by the first respondent overlooks the fact that there is a new Constitution in force and that new rights have been created by the Constitution.  The argument also seems oblivious of the fact that any existing law that is inconsistent with the new Constitution is invalid to the extent of such inconsistency – s 2 of the Constitution.

[13]      Put differently any provision in the Citizenship of Zimbabwe Act [Chapter 4:01] or the Immigration Act [Chapter 4:02] that is inconsistent with the provisions of s 36 of the current Constitution would be invalid to the extent of such inconsistency.

[14]      It being common cause that the appellant was born in Zimbabwe and that, at the time he was born, both his parents were Zimbabwean citizens, the appellant is, by operation of law, a citizen of Zimbabwe by birth.  Such citizenship cannot be revoked by the State except in the circumstances provided for under s 39(2) of the Constitution.

[15]      In Mutumwa Dziva Mawere v Registrar General & Ors (supra), this Court stated in clear terms that, in a case where it is common cause that a person was born in Zimbabwe and at the time of birth at least one of his parents was a Zimbabwean citizen, the person enjoys citizenship by birth in terms of s 36(1) and such citizenship cannot be revoked or lost under any circumstances.  Citizenship may only be revoked by the State in cases of fraud, misrepresentation or concealment of a material fact or, in the case of a child found in Zimbabwe and presumed to be a Zimbabwean citizen by birth, it is established that in fact the child was a citizen of another country.   In a case, such as the present, where it is not suggested that the citizenship was acquired through fraud, misrepresentation or concealment of a material fact, a decision to revoke his citizenship or to declare him a prohibited immigrant is clearly unlawful.

[16]      In the Mutumwa Dziva Mawere case (supra), this Court stated at p 10 of the cyclostyled judgment:-

“(27)                What is significant about s 39 is that it does not provide for the revocation of the citizenship of a person who is born in Zimbabwe to a Zimbabwean parent as provided in s 36 (1) of the Constitution.

Read against s 39, the necessary corollary is that citizenship acquired in terms of s 36(1) cannot be revoked by the State under any circumstances.”

                        At p 13, the court further remarked:-

“(35)    Consequently, on a proper reading of all

the provisions of Chapter 3, the inference

is irresistible that dual citizenship in

respect of citizens by birth is not

proscribed.  Such citizenship exists by

operation of law.”

[17]      The above remarks apply with equal force to this case.  The fact that the appellant also enjoys South African citizenship or that at some stage he was branded a prohibited immigrant is now no longer relevant.  He is a citizen by birth in terms of s 36(1) of the Constitution and is entitled to all the benefits of citizenship.  That is the end of the matter.

[18]      On the issue of costs, both parties were agreed that a no costs order would meet the justice of the case.

[19]      It was for the above reasons that we made the order cited in paragraph 1 of this judgment.

                        ZIYAMBI JA:                       I agree

                        GUVAVA JA:                       I agree

Zimbabwe Lawyers for Human Rights, appellant’s legal practitioners

Mudenda Attorneys, first respondent’s legal practitioners