Daniel Nemukuyu Senior Court Reporter
The Constitutional Court has called for the enactment of legislation that recognises dual citizenship and spells out how lost citizenship can be restored to make the Mutumwa Mawere judgment enforceable.
In a full judgment availed recently under Constitutional Court of Zimbabwe Number 4 of 2015, the court observed that Section 42 of the Constitution allows for the enactment of a law to deal with citizenship issues.
The order was granted in 2013 just before the harmonised elections, but the detailed judgment with reasons was made available this year.
This comes at a time several people were failing to assert their citizenship rights because the Registrar-General’s Office was demanding an Act of Parliament or at least a court order to regularise citizenship.
A number of lawyers confirmed that after the Mawere ruling in 2013, several Zimbabweans abroad, who had acquired foreign passports, flocked to them seeking restoration of their citizenship right but were facing challenges at the RG’s Offices.
Part of the judgment reads:
“Section 42 (of the Constitution) makes it possible for Parliament to enact legislation to deal with the various aspects of citizenship itemised in that sec- tion.
“Secondly, such legislation must be consistent with Chapter 3 of the Constitution. In other words, such legislation may not allow for the derogation of any rights conferred in terms of Chapter 3.
“Thirdly, the section makes it clear that such legislation may deal with the prohibition of dual citizenship in respect of citizenship by descent or registration only.
“It does not provide for the prohibition of dual citizenship in respect of persons who are citizens by birth…”
The court further observed that the same Section 42 provides for the enactment of legislation dealing with the restoration of Zimbabwean citizenship.
“In all these situations, an affected person may apply for the restoration of Zimbabwean citizenship. An Act of Parliament will provide details on how such citizenship can be restored,” reads the judgment.
Harare lawyer Mr Tafadzwa Mugabe, who represented Mr Mawere in the 2013 case, said his law firm, Nyakutombwa/Mugabe Legal Counsel, was seized with several cases of Zimbabweans based in Britain and other countries who were finding it difficult to acquire Zimbabwean passports and other documents.
“Since we got the Mawere order in 2013, we have received many cases of Zimbabweans in the Diaspora seeking to assert that dual citizenship right.
“In three of the cases, we approached the RG’s Office and the officials told us that in the absence of an enabling Act, the applicants may at least bring a court order to that effect,” said Mr Mugabe.
“But we believe that the Mawere judgment is sufficient for our clients to enjoy their rights as Zimbabwean citizens,” he said.
The court ruled that dual citizenship in respect of citizens by birth existed by operation of law.
Mr Mawere was born in Bindura, Zimbabwe, on January 11 1960 and both his parents were born in the same country.
In July 2002, Mr Mawere acquired the citizenship of South Africa by registration.
In order to register as a voter in the 2013 harmonised elections, Mr Mawere approached the RG’s offices to procure a duplicate national identity document, having lost the original.
He was advised that for as long as he remained a South African citizen, he would not be eligible for a Zimbabwean national identity document.