On The Issue of Dual Citizenship
Alex T. Magaisa
The issue of dual citizenship has occupied the hearts and minds of many people during the constitution-making process in Zimbabwe. It also became one of the most contentious issues. In the end, it was resolved that the matter be deferred to the country’s lawmakers in Parliament.
Two Views
There were diametrically opposed positions between the negotiating parties and this was not helped by mixed and inconclusive data from the outreach process. There was no quantitative mechanism to accurately pinpoint the majority view on this and other issues which meant it all came down to negotiations.
I have observed that an incorrect view has been peddled by some sections of the media that people totally rejected dual citizenship. The fact is that there was no single conclusive narrative on dual citizenship. Indeed, almost all institutional reports and views gathered from the Diaspora supported dual citizenship. However, those in the Diaspora should also appreciate that there were others who thought dual citizenship should be banned.
I have also observed that there is not enough light on this issue not least because of the link that has been made between the issue of dual citizenship and the voting rights of the Zimbabwean Diaspora. This short note attempts to shed some light on these matters.
There being no conclusive view from the field, it was resolved that at the very least the new constitution could not be any worse than the present constitution. If anything, it should be an improvement upon the present constitution but should never take away what is currently available. It is important, therefore, to have clear understanding of the current constitutional position.
Current Law: No Constitutional Prohibition
Contrary to belief in some circles, the current Constitution does not prohibit dual citizenship. The constitution simply states that Parliament may pass legislation prohibiting dual citizenship. This is an enabling provision which leaves it to Parliament to decide whether or not to ban dual citizenship. The constitution itself does not ban dual citizenship. In fact, the way the provision is worded means that the current constitution allows dual citizenship unless and until Parliament passes a law prohibiting it. There is a presumption in favour of dual citizenship unless parliament makes a law to the contrary.
Current Law: Legislative Prohibition
In 2001, Parliament used this enabling power to prohibit dual citizenship. Thus effectively, while dual citizenship is currently prohibited, it is proscribed under parliamentary legislation and not under the constitution. This means that if Parliament decided to review the law today to lift the ban it would be perfectly legal and well in line with the constitution. The issue of dual citizenship is therefore currently not a constitutional issue but one that falls squarely within the domain of Parliament. A progressive parliament can easily change this law if it wishes to do so.
There was a view however that the constitution could do more to protect the rights of citizens by birth or descent so that they would not under any circumstances lose their citizenship rights. I held this view very strongly. To achieve this, a proposal was made to follow the Namibian approach which like ours gives an option to Parliament to pass a law to prohibit dual citizenship but ensures that such a law would not deprive citizenship of Namibians who are citizens by birth or descent.
The next best option was to, at least, resort to the status quo but without the current provisions of the citizenship law that prohibit dual citizenship. In other words, the constitution would not specifically ban dual citizenship but would give parliament the power to deal with the issue on a fresh basis.
The net result is that we have a constitution that theoretically allows dual citizenship but gives parliament the option to deal with it otherwise. In other words, the constitutional presumption favour of dual citizenship has been retained and the current legislative prohibition against dual citizenship will be nullified. We are effectively reverting to the pre-citizenship amendment law of 2001. The fate of dual citizenship is therefore squarely in the hands of parliament. If Parliament does not pass a law, then the constitutional presumption that dual citizenship is permitted will prevail.
Much therefore will depend on the majority party in Parliament and its view on dual citizenship. If a party that understands and appreciates the value of dual citizenship is in the majority, then a law prohibiting it is unlikely to be passed. However, if a party that opposes dual citizenship succeeds in the election, then such a law may find its way into the statute books again.
The Namibian approach would have been preferable, constitutionally ring-fencing as it does, the rights of citizenship by birth or descent under any circumstances but such are the complexities of negotiation that I believe the next best option was achieved, under which a constitutional presumption in favour of dual citizenship is retained.
The worst was avoided, by which dual citizenship would have been specifically prohibited in the constitution. The challenge is to ensure that a parliament sympathetic to the issue is elected.
In the next blog, I will turn to the issue of voting rights. Whilst there is a link to the dual citizenship issue, I believe there are inaccuracies that need correction so that in the end it will become clear that the Diaspora can is they are properly organized, exercise their voting rights.
We need the Namibian one . Its the best.
I agree. But in the circumstances the hope has to be that a reasonable parliament is elected. The interesting thing is that privately most people – even those publicly opposing it, are sympathetic to the dual citizenship claim. Many have children, relatives and friends who are affected. In a secret ballot, there would be a huge victory for it. the public opposition is linked, erroneously as I will explain in the next blog, on the assumption that it gives a right to vote as if the right to vote depends on the recognition of dul citizenship, which is is not the case.
waMagaisa
I will wait for the next bog, i cant see how the diaspora can be allowed to vote if citizenship has been stripped. I think with the current legislation one does not have to renounce zim citizenship, one a person takes citizenship of another country then he/she would have disqualified themselves from being zimbos
You are correct, Tariro that once one has lost citizenship, his or her eligibility to vote is lost. But the question that has to be answered is whether th draft constitution provides for the loss of citizenship on account of takng up foreign citizenship. It does not. It can only happen if parliament chooses to set up a law for that purpose. Although the current law prohibits dual citizenship, as i have explained, tha law will cease to have effect upon the adoption of the draft constitution. At that point, no one would be stripped of citizenship unless an until parliament chooses to enact a law prohibiting dual citizenship. Even then, such a law, would be open t challenge.
We want to exclude such a debate from the ‘motive’ of dual citizenship. Once born a Zimbabwean, nothing under the sun should deprive one of this birth right. ZANU-PF has been losing elections as far back as I can remember [and my memory is not bad!]. Alex’s point that the trick is to get a democratic government overwhelmingly voted for is correct. A lot of this we are haggling about with ZANU-PF is caused by our lack of control of government. Frankly, before we show Mugabe the exit door, such issues as death penalty, property rights, Diaspora voting etc will keep nagging us.