Source: Constitutional Court of Zimbabwe
(CCZ 27/13)  ZWCC 04
Mawere v Registrar-General & Ors CC-4-15 (Garwe JA, Chidyausiku CJ, Malaba DCJ, Ziyambi JA, Gwaunza JA, Gowora JA, Hlatshwayo JA, Patel JA & Chiweshe AJA concurring) (decision given 26 June 2013; judgment made available March 2015)
The applicant was born in Zimbabwe in 1960. Both of his parents were also born in Zimbabwe. In 2002 he acquired citizenship of South Africa by registration. In order to register as a voter in national elections that were scheduled to take place in 2013,he approached the offices of the first respondent in order 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. He accordingly sought a declaratur that, being a citizen by birth, he was entitled to dual citizenship and that the law did not require of him to renounce his foreign citizenship before he could be issued with a Zimbabwean national identity document.
Before the enactment of the 2013 Constitution, the law prohibited dual citizenship. In terms of the law then in operation, the applicant would have been required to renounce his South African citizenship before he could be eligible for Zimbabwean citizenship. Only then would he have been eligible for a Zimbabwean national identity card.
In terms of s 36 of the 2013 Constitution, persons are Zimbabwean citizens by birth if they were born in Zimbabwe and, when they were born, either of their parents was a Zimbabwean citizen. The applicant submitted that citizenship by birth may only be revoked in two situations. The first is where citizenship is acquired by fraud, false representation or concealment of a material fact by any person. See s 39(2)(a). The second is where the nationality or parentage of a child found in Zimbabwe, who is or appears to be less than 15 years of age and whose nationality and parents are unknown and is presumed to be a Zimbabwean citizen by birth, becomes known. Although s 42 of the Constitution empowers Parliament to pass an enactment prohibiting dual citizenship, such prohibition is in respect of citizens by descent or registration, but citizens by birth. It was also submitted that there was no residency requirement in terms of the law for citizens by birth.
The first respondent submitted that the applicant was not a Zimbabwean citizen when the new Constitution came into effect and could not have reverted to being one by virtue of s 36. Some formal act would be required to have citizenship restored to him.
Held (1): the Constitution is the supreme law of the land and that any law, practice, custom or conduct inconsistent with it, is invalid to the extent of the inconsistency. The obligations imposed by the Constitution are binding on every person, including the State and all its organs at every level. In interpreting the Constitution, all relevant provisions are to be considered as a whole and where rights and freedoms are conferred on persons, derogations therefrom, as far as the language permits, should be narrowly and strictly construed. The meaning of a right or freedom guaranteed by a constitution must be ascertained by an analysis of the purpose of such guarantee and that such purpose must be sought, inter alia, in the character, larger objects, historical origins of the concepts enshrined in the Constitution and in the language in which the concepts are expressed.
(2) The provisions of Chapter 3 of the Constitution (which deals with citizenship) must be read together. Section 36 is not made subject to any other section in the Constitution. The ordinary grammatical meaning of the section is clear and allows of no ambiguity. A person born in Zimbabwe to a parent who, at the time of the person’s birth, was a Zimbabwean citizen, is a Zimbabwean citizen and is not obliged to do anything further to qualify for Zimbabwean citizenship. Citizenship by registration may be revoked under s 38. Under 39, citizenship by birth may be revoked only if such citizenship was acquired by false representation or where it is established that a child below fifteen years of age, who is presumed in terms of s 36(3) of the Constitution to be a citizen by birth, is a citizen of another country. The section does not provide for the revocation of the citizenship of a person who born in Zimbabwe to a Zimbabwean parent and the necessary corollary is that citizenship acquired in terms of s 36(1) cannot be revoked by the State under any circumstances.
(3) Section 43(1), which restates that any person who, before 22 May 2013, was a Zimbabwean citizen, continues to be a Zimbabwean citizen after that date, applies to all classes of citizens, not only to citizens by birth.
(4) Section 42, which itemises the matters relating to citizenship in respect of which Parliament may pass a law, requires that 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. 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.
* Editor’s note: although the Court’s decision was handed down on 26 June 2013, the judgment was not made available until March 2015, hence the 2015 judgment number.