Source: High Court of Zimbabwe
(HC 7248/10)  ZWHHC 128
MAVANGIRA J: This matter was heard on 24 March 2011. On 31 March 2011 this court issued an order in the following terms:
“IT IS DECLARED THAT:
1. The applicant is a citizen of Zimbabwe by birth in terms of section 5 of the Constitution of Zimbabwe.
2. The provisions of section 9(7) of the Citizenship of Zimbabwe Act, Chapter 4:01 insofar as it relates to citizenship by birth, are ultra vires the powers the powers vested in the Parliament of Zimbabwe in terms of section 9 of the Constitution of Zimbabwe and are in consequence of no force and effect.
ACCORDINGLY IT IS ORDERED THAT:
- The first respondent shall within 14 days of the date of this order renew the applicant’s Zimbabwe passport.
- The first respondent shall pay the applicant’s costs of suit.”
The following are the reasons why this court granted the relief sought.
The facts of this matter are that the applicant’s father was born in Mozambique in 1941. He came to Zimbabwe in about 1955 when he was still young and lived most of his life in Zimbabwe. At some stage he became a citizen of Zimbabwe. He died in Harare on 8 February 2008.
The applicant’s mother was born in Zimbabwe. She was a citizen of Zimbabwe by birth. She lived all her life in Zimbabwe and died in Harare on 18 April 2008
The applicant was born in Zimbabwe on 29 April 1967. He is the holder of a Zimbabwe National Identity document. On 19 June 2000, the applicant was issued with a Zimbabwe passport on the basis that he was a Zimbabwean citizen. The passport expired on 18 June 2010 when the applicant was in Canada where he is living and working. Before its expiry the applicant submitted an application form to renew his Zimbabwe passport. He submitted the form to the first respondent through the Zimbabwe Embassy in Canada. The first respondent has refused to grant the application for a renewal.
The first respondent’s reasons for adopting the stance which he has taken with the applicant may be summarised as follows. Firstly, he argues that contrary to section 9 (1) of the Citizenship of Zimbabwe Act, [Chapter 4:01], the applicant was a dual citizen of Zimbabwe and Mozambique and that as a consequence, and in terms of section 9 (7) of the Act, the applicant has lost his Zimbabwe citizenship. Secondly, he argues that before the applicant is entitled to apply for a new Zimbabwe passport, he has, in the first instance, to renounce Mozambique citizenship in terms of Mozambican law. Then, in accordance with the provisions of section 14 (1) (b) of the Act, he has to apply to the second respondent to be restored as a Zimbabwe citizen in terms thereof. Furthermore, that in this instance the applicant will have restoration of citizenship by registration and not by birth. The applicant, it is argued, will suffer no prejudice by being a citizen of Zimbabwe by registration rather than by birth. Only if and when the said application is approved will the first respondent recognise the applicant as a citizen of Zimbabwe.
The first respondent’s third argument appears to be that the law relating to citizenship which applies to the applicant’s case is that contained in Chapter II of the Constitution of Zimbabwe as set out in the Schedule to the Zimbabwe Constitution Order (SI 1979/1600) as amended but only up to and including Constitution Amendment No. 14 of 1996). The first respondent would appear to consider that in dealing with the applicant’s case, the provisions of Constitution Amendment No. 19 (Act 1 of 2009) are not relevant. The first respondent appears to imply that if the applicant becomes a citizen of Zimbabwe again, he concedes that he would be obliged to issue the applicant with a new Zimbabwe passport.
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Judgment includes history of Rhodesian and Zimbabwean citizenship law.