Source: Supreme Court of Zimbabwe
Whitehead v Registrar General of Citizenship & Others (SC 308/12)  ZWSC 21 (12 September 2013) (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.
Download from ZIMLII: https://www.zimlii.org/zw/judgment/supreme-court/2013/21-0