DUAL CITIZENSHIP FOR CITIZENS BY BIRTH IN THE DRAFT CONSTITUTION

 

General Note

 

After months of negotiations, the Final Draft Constitution is now out. I have already declared my interest in the process by way of my involvement at certain stages. I am therefore hardly a neutral observer. Nevertheless, my interest does not affect my critical eye and where the Final Draft can be improved, this will be highlighted. The Final Draft is a product of negotiation – it is a product of give and take. The approach is not amenable to be production of the most beautiful constitution but idealism has to be married to Realpolitik. This is what we have and we must assess it to identify its strengths and weaknesses.

 

I will not be sycophantic and pretend that it is the best thing that ever happened to Zimbabwe. But I do not think it is right to dismiss it outright. It must be subjected to interrogation; to critical analysis so that those who make decisions – the people – can be better informed. It is in this spirit that I will use this blog to pick on aspects of the draft for purposes of making a contribution to the public domain.

 

The standard of comparison is the current constitution. In this regard we seek to find out what has changed, if any, and whether the change can be regarded as an improvement. Because there have already been previous drafts, it is inevitable that comparisons will be drawn between this Final Draft and the ones that preceded it.

I have previously done a fairly lengthy audio interview with Violet Gonda on the constitution on Studio 7 (VOA) – follow link here:  http://www.voanews.com/zimbabwe/news/Zimbabwe-to-have-16-Official-Languages-163199346.html

 

 

We will commence with the issue of Dual Citizenship.

 

A Thorny Issue

 

Dual citizenship was one of the thorniest issues in the current Constitution-making process. With thousands of Zimbabweans scattered across the globe largely on account of the political and economic challenges in recent years, the clamour for recognition of dual citizenship was loud. Equally loud was the resistance to recognition of dual citizenship.

 

Citizens by Birth Vs Citizens by Descent or Registration

 

The position in the Final Draft is a compromise which essentially recognises that citizenship by birth cannot be taken away simply because a person has acquired another citizenship but that Parliament has the power to regulate dual citizenship for citizens by descent or registration.

 

Therefore, in regard to dual citizenship, citizens are divided into two groups:

a)      citizens by birth and

b)      citizens by descent or by registration.

 

Citizens by Birth

 

Parliament does not have the power to take away citizenship from citizens by birth just because the citizen has acquired citizenship of another country. In other words, citizenship by birth is protected in absolute terms in so far as the issue of dual citizenship is concerned. In fact, it opens the door not just to the acquisition of dual citizenship for citizens by birth but to the acquisition of multiple citizenship. The way the Final Draft deals with this issue is that it does not prohibit dual citizenship for citizens by birth and it does not give Parliament the power to prohibit it. If there was an intention to prohibit it or to give power to prohibit it, the Final Draft would have stated it just as the current Constitution does.

 

Citizens by Descent or Registration

 

Parliament does however have the power to regulate dual citizenship of citizens by descent or citizens by registration. Clause 3.8(e) states that Parliament may make provision through a law for “the prohibition or permitting of dual citizenship in respect of citizens by descent or registration”. In terms of Clause 3.3, a person is a citizen by descent if he/she is born outside Zimbabwe and at the time of birth at least one of their parents or grandparents was a Zimbabwean citizen by birth or descent;  or either of their parents was a Zimbabwean citizen by registration and the birth is registered in Zimbabwe.

 

Therefore, to use a hypothetical example: Suppose there are Zimbabwean citizens, Tendai and Nonhlahla who migrated to Australia in 2005 and had their child Thabani in Australia in 2007. In this case Thabani would qualify as a citizen by descent as both her parents are Zimbabwean citizens. Suppose Tendai and Nonhlahla acquire Australian citizenship and so does Thabani. Under the terms of the Final Draft, Tendai and Nonhlahla can acquire Australian citizenship without the risk of losing their Zimbabwean citizenship because they are Zimbabwean citizens by birth. However, Thabani’s citizenship may be at risk if the Parliament of Zimbabwe decides to pass a law prohibiting dual citizenship for all citizens by descent.

 

In this regard, it can be said that the Final Draft protects the citizenship rights of citizens by birth better than it protects the citizenship rights of citizens by descent or registration. Citizenship by registration is where for example one obtains citizenship through marriage or long residence.

 

The new provisions are an improvement in regards to citizens by birth. These people constitute the majority of Zimbabweans in the Diaspora. The current Constitution did not distinguish citizens by birth, subject them to the same laws that Parliament could pass prohibiting dual citizenship. To that extent the Final Draft is an improvement.

 

However, in regards to citizens by descent or registration, the Final Draft has remained the same except that the wording of the relevant clause is no longer couched in overly negative terms.  Under the current Constitution, the clause states that Parliament may pass a law for “the prohibition of dual citizenship”. The new clause states that Parliament may make provision for “the prohibition or permitting of dual citizenship in respect of citizens by descent or registration”. There is an allowance in the wording that the power of Parliament is not merely to prohibit but can also be to permit. Some regard this as an improvement.

 

However, in my respectful opinion, well-intentioned as they might be, those words, “or permitting”, as underlined above, are really not necessary and can be a source of confusion. This is because the constitution is not prohibiting dual citizenship. The constitution must be interpreted in favour of rights rather against them, therefore, the natural presumption is that the constitution allows dual citizenship for all citizens regardless of their type unless it specifically states otherwise. This is confirmed by Clause 3.1(2) which states that “all Zimbabwean citizens are equally entitled to the rights, privileges and benefits of citizenship and are equally subject to the duties and obligations of citizenship”. Therefore all citizens whether by birth, descent or registration are entitled to the same rights, privileges as well as responsibilities.

 

In light of this, to give Parliament the power to “permit” dual citizenship suggests that citizens by descent or registration do not have the rights in the first place; that they have to await Parliament’s permission, which is really not the case. The only thing that Parliament could be empowered to do, but only so long as it is consistent with the constitution, is to take away any of those rights. As it is, I can foresse confusion as to the status of citizens by descent or registration in so far as Parliament is concerned.  Since, the current Citizenship Act is in place and because it prohibits dual citizenship, it will be null and void in regards to citizens by birth but will still be applicable to citizens by descent or registration, unless it is amended.

 

There is however, one avenue that can be used so that children born outside Zimbabwe can be regarded as citizens by birth rather than as citizens by descent. Clause 3.2(2) states that “persons born outside Zimbabwe are Zimbabwean citizens by birth if, when they are born, either of their parents is a Zimbabwean citizen and [is] (a) ordinarily resident in Zimbabwe”. The question will, therefore, be whether one of the parents can successfully claim that he or she is “ordinarily resident” in Zimbabwe, which will depend on the facts and the legal definition of “ordinarily resident” – a long shot but one worth considering given the fact that citizenship by birth appears to have greater advantage than citizenship by descent.

 

So in summary, this is the position pursuant to the Final Draft:

 

1. Citizens by birth will be allowed to have dual or multiple citizenship.
2. Citizens by descent or registration will be allowed to have dual citizenship unless Parliament prohibits it.

 

Next, we shall deal with the issue of voting rights of the Diaspora, another contentious issue.  

 

waMagaisa (2012)

 

This information reflects my personal views and not the views or opinions of any person or organisation with whom or which I may be remotely associated. Anyone who wishes to use this information commercially or otherwise, should seek my express permission prior to using it, and may be asked to make a modest contribution to charity for use of this material. Email: wamagaisa@yahoo.co.uk