Roland Whitehead v Registrar General of Citizenship and Co-Ministers of Home Affairs and Minister of Justice and Legal Affairs and Minister of Constructional and Parliament Affairs

### Preamble
1
HH 349-12
HC 3074/11
ROLAND WHITEHEAD versus
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ROLAND WHITEHEAD
versus
REGISTRAR GENERAL OF CITIZENSHIP
and
CO-MINISTERS OF HOME AFFAIRS
and
MINISTER OF JUSTICE AND LEGAL AFFAIRS
and
MINISTER OF CONSTRUCTIONAL AND
PARLIAMENT AFFAIRS

HIGH COURT OF ZIMBABWE
DUBE J
HARARE, 13 September 2012

OPPOSED COURT APPLICATION

B. Elliot, for the applicant
Ms C. Mudenda, for the respondent

DUBE J: In this application, the applicant seeks the following relief:-

“IT IS DECLARED THAT:
1. The Applicant is a citizen of Zimbabwe by birth in terms of s 5(1) of the Constitution of Zimbabwe.

2. The order issued in terms of s 14(1) (g) of the Immigration Act [Cap 4: 02] signed by the then Minister of Home Affairs on 16 December 2005 deeming the applicant to be an undesirable inhabitant or visitor to Zimbabwe is unlawful and of no force and effect.

3. The provisions of s 9(7) of the Citizenship of Zimbabwe Act [Cap 4:01] are ultra vires the powers vested in the parliament of Zimbabwe in terms of s 9 of the Constitution of Zimbabwe in so far as the said provisions relate to citizenship by birth of Zimbabwe and are of no force or effect in so far as the said provisions relate to citizenship by birth of Zimbabwe.

4. The provisions of s 9(2) of the Citizenship of Zimbabwe Act are ultra vires the powers vested in the Parliament of Zimbabwe in terms of s 9 of the Constitution of Zimbabwe in so far as the said provisions relate to citizenship by birth of Zimbabwe and are of no force and e effect in so far as the said provisions relate to citizenship by birth of Zimbabwe.
 ACCORDINGLY IT IS ORDERED THAT:
1. The first and second respondents shall afford the applicant all the rights and privileges as a citizen by birth of Zimbabwe including the right to reside peacefully and permanently in Zimbabwe.
2. The first respondent shall, within 14 days of the date on which the applicant submits an application for a Zimbabwe passport to the first respondent in proper form, issue the applicant with a Zimbabwe passport.
3. The first and second respondents shall pay the applicant’s costs of suit”.

FACTS
The applicant was born in Southern Rhodesia, now Zimbabwe, on 15 April 1944. His mother Enid Marjorie Whitehead was also born in this country on 11 April 1917. She lived and died in Zimbabwe on 17 September 2000. The applicant’s father, John Borraine Whitehead was born in South Africa on 13 July 1911. His father came to Southern Rhodesia in 1939 and later married his mother. He made home and lived in this country with his family until his death in 1961. At the time of the applicant’s birth his mother was a citizen of this country by birth and his father was also a citizen of this country by naturalisation.

The applicant avers that he is a citizen of this country by birth in terms of section 5 (1) (a) of the Constitution. He states that on 2 January 2002 he renounced any claim he had to South African citizenship at the South African Embassy in Harare as required. That he did not retain proof of this fact and the first respondent’s office told him that they lost their file on him. He further avers that in October 2005 the first respondent confiscated his Zimbabwean passport. The applicant avers that in order to avoid being stateless, he applied and was granted South African citizenship and was subsequently issued with an emergency travel document. He needed to travel on business as he had consultancies in Zambia and South Africa. He does not state exactly when he did this. He avers that he did not do ‘a voluntary act’ when he took up South African citizenship as stipulated in s 9 (2) of the Citizenship of Zimbabwe Act, [Cap 4:01] hereinafter referred to as the Citizenship Act. On 16 December 2005 the Minister of Home Affairs who is the second respondent in this matter, issued an order in terms of s 14 (1) (g) of the Immigration Act [Cap 4:02], deeming him an “undesirable inhabitant or visitor” to Zimbabwe. The respondent submitted that The Minister did not furnish reasons for this development and that the Minister had no legal right or lawful power to issue the said order which order is unlawful and of no force or effect. The applicant avers that the provisions of s 9 (2) of the Citizenship Act are ultra vires s 9 of the Constitution of Zimbabwe in so far as those provisions relate to citizenship by birth and that the provisions are also of no force or effect. The applicant currently resides in South Africa.

The applicant maintains that he never lost his citizenship of Zimbabwe and that he was and still is a citizen of Zimbabwe by birth. Mr Elliot, who represented the respondent, submitted that the decision of the minister declaring the applicant a prohibited person is unlawful and incompetent as a citizen of a country cannot be declared a prohibited immigrant and be deported. That although s 22 provides that the decision of the minister declaring a person a prohibited immigrant shall not be questioned by the courts, the decision was unlawful and that this court has jurisdiction to review that decision. He relied on the case of Rondon v Minister of Home Affairs 1990 (2) ZLR 327 (s) for this proposition.

The first respondent is opposed to the application. The other respondents have not filed any opposition papers. The assumption is that they are prepared to abide by the court’s decision. The position of the Registrar General of Citizenship and Chief Passport Officer who is cited as the first respondent is (hereinafter referred to as the respondent is), that the applicant was a citizen of Zimbabwe from his birth. The first respondent claims that the applicant was also a citizen of South Africa and that he was required to renounce his foreign citizenship in terms of s 9 of the Citizenship Act. He argues that the applicant lost Zimbabwean citizenship by not complying with the renunciation requirements. He maintained that as the applicant did not renounce his foreign citizenship and is currently a citizen of South Africa and his entry into Zimbabwe is subject to Immigration control. Further that the applicant is not being truthful when he states that he submitted his renunciation of foreign citizenship documents to his office as his office did not receive the documents and there is no such record. He contends that if he had genuinely renounced his South African citizenship, he would not be in possession of South African documents. That the applicant had an option to retain his Zimbabwean citizenship by applying for restoration of citizenship in terms of s 14 of the act. He asserts the Minister of Home affairs’ action deeming him an undesirable inhabitant or visitor was lawful. That as the applicant is a resident and citizen of South Africa. He is subject to immigration control. Counsel for the respondents, Miss Mudenge further submitted that the applicant is a South African citizen by descend and that the applicant lost his citizenship by not renouncing his South African citizenship and that he was declared a prohibited immigrant because he failed to renounce his
 South African citizenship in terms of s 9(7) of the citizenship Act and that as a result lost his citizenship. She contended that the minister’s decision prohibiting the applicant from this country is not reviewable and that the minister is not obliged in terms of the law to disclose reasons for his decision.

The applicant challenged the constitutionality of s(s) 9(7) and 9(2) of the Citizenship Act. I will deal with this point first.

**Are the provisions of sections 9(7) and 9(2) of the Citizenship Act ultra vires the Constitution?**

The applicant submitted that the provisions of section 9(7) of the Citizenship Act are ultra vires the powers vested in the Parliament of Zimbabwe by s 9 of the Constitution of Zimbabwe in so far as they relate to citizenship by birth.

Mr Elliot who represented the applicant further submitted that the provisions of s 9(2) of the act are also ultra vires the powers vested in the Parliament of Zimbabwe in terms of s 9 of the Constitution in so far as they relate to citizenship by birth. He contended that a citizen of Zimbabwe by birth cannot be deprived of that status.

The respondent submitted that the respondent acted accordingly and in terms of the law by depriving the applicant of his citizenship status. Miss Mudenda contended that this court can not declare legislation to be ultra vires the Constitution. That this is the function of the Constitutional Court.

The Constitution provides in section 24 that the Supreme Court can sit as a court of first instance in matters involving disputes over the declaration of rights. It does not ouster the jurisdiction of this court regarding all other Constitutional matters. The High Court is a court of inherent original jurisdiction. It has the power to deal with all other Constitutional matters.

The history of the law of citizenship in Zimbabwe citizenship from 1949 to date was examined and outlined in the case of Sebastian Piroro v The Registrar General 128/11. In her analysis, MAVANGIRA J shows that the law did not until Constitutional Amendment number 1 of 2003 allow deprivation of citizenship by birth. I agree with her analysis. I will examine the history of citizenship of Zimbabwe from 1979. The Constitution in 1979 provided in s 9 as follows;

“(9) An act of parliament may make provision not inconsistent with this chapter, in respect of citizenship and, without prejudice to the generality of the foregoing, for-
(a)...
(b) Subject to the provisions of section 8 and provided that a person shall not thereby be rendered stateless-

(1) (i) The circumstances in which a person who is a citizen of Zimbabwe other than by birth and who becomes a citizen of some other country or person who is a citizen of some other country and who becomes a citizen of Zimbabwe shall cease to be a citizen of Zimbabwe.

(2) (ii) depriving any person, other than a citizen by birth or descent, of his citizenship of Zimbabwe; and depriving any person, other than a citizen by birth descent, of his citizenship of Zimbabwe; and

(3) (c) the renunciation by any person of his citizenship of Zimbabwe”.

My reading of this section discloses that a citizen of Zimbabwe by birth could not be deprived of that status.

A new s 9 was introduced by Constitutional Amendment No. 1 of 2003. The section read as follows;

“9. Notwithstanding the provisions of this Chapter, an Act of Parliament may make provision in respect of citizenship and, without prejudice to the generality of the foregoing, may provide for:-

(a) the acquisition of citizenship of Zimbabwe by persons who are not eligible or who are no longer eligible to become citizens of Zimbabwe under this Chapter;

(b) the circumstances in which a person may cease to be a citizen of Zimbabwe;

(c) the deprivation of any person of his citizenship of Zimbabwe;

(d) the renunciation by any person of his citizenship of Zimbabwe provided that no such law shall provide for the cessation by, or deprivation of, any person of citizenship of Zimbabwe where such person is a citizen thereof by birth except on the grounds that he is or has become a citizen of some other country”

This was followed by the enactment of the Citizenship of Zimbabwe Act the following year. Section 9 of the Citizenship Act was enacted to capture the Constitutional position provided for in s 9 of the Constitution.

The Citizenship Act provides in s 9 as follows:

“9 Prohibition of Dual Citizenship

(1) Subject to this section, no citizen of Zimbabwe who is of full age and sound mind shall be entitled to be a citizen of a foreign country.

(2) A citizen of Zimbabwe of full age who, by voluntary act other than marriage, acquires the citizenship of a foreign country shall immediately cease to be a citizen of Zimbabwe......

(7) A citizen of Zimbabwe of full age who
(a) at the date of commencement of the Citizenship of Zimbabwe Amendment Act, 2001, is also a citizen of a foreign country; or
(b) at any time before that date, had renounced or purported to renounce his citizenship of a foreign country and has, despite such renunciation, retained his citizenship of that country; shall cease to be a citizen of Zimbabwe six months after that date unless, before the expiry of that period, he has effectively renounced his foreign citizenship in accordance with the law of that foreign country and has made declaration confirming such renunciation in the form and manner prescribed.”

The Constitutional provision empowered the legislature to enact legislation governing citizenship in Zimbabwe. It further provided that it may provide for the acquisition of citizenship of Zimbabwe and the circumstances in which a citizen of Zimbabwe by birth may cease to be a citizen or be deprived of such citizenship. The proviso to this section provided that the only instance when cessation or deprivation of citizenship by birth was permissible is where a citizen by birth of Zimbabwe had become a citizen of some other country. This provision was echoed in s 9 (2) of the Citizenship Act which provides that a citizen of Zimbabwe of full age who, by voluntary act other than marriage, acquires the citizenship of a foreign country shall immediately cease to be a citizen of Zimbabwe. Section 9 (7) required a citizen of Zimbabwe who was also a citizen of another country to renounce the citizenship by a specified date. The proviso to s9 of the constitution permitted Parliament to enact laws depriving a citizen of Zimbabwe by birth, of that status, if he became a citizen of another country. This means that a citizen by birth of Zimbabwe could be deprived of citizenship by birth. The mischief that the legislature intended to remedy is, a situation where a citizen of Zimbabwe acquired foreign citizenship and still remained a Zimbabwean citizen and thereby hold dual citizenship. It covered all classes of citizenship.

Section 9 of the Constitution was again repealed and substituted by Constitutional Amendment no 19 of 2009. This was during the tenure of the current Transitional Government. The current section 9 reads as follows;


“Powers of Parliament in relation to Citizenship”

An act of Parliament may provide for-

(a) The prohibition of citizenship
(b) Procedures for dual citizenship
(c) The circumstances in which persons qualify for or lose their citizenship by descent or registration and
(d) Any other matters regarding citizenship”

The Constitutional provision provides in s 9 (c) for circumstances in which persons qualify for or lose their citizenship by descent and registration. The provision makes no reference to the term ‘citizenship by birth’. The reason for the repeal and substitution of the old s 9 seems to me to have the prompted by the need to remove the provision relating to deprivation by birth. The new s 9 is silent on deprivation of citizenship by birth. The expression, *expression unius est exclusion alterius* is applicable here. The maxim means that ‘express mention of one thing excludes another’. The express mention of the power of Parliament to enact laws dealing with the loss and qualification of citizenship by descent or registration warrants one inference. The inference is that the power to enact a law dealing with qualification and loss of citizenship by birth was deliberately excluded.

The law provides is s 9(1) of the Citizenship Act that no citizen of Zimbabwe shall be entitled to be a citizen of a foreign country. This is an explicit prohibition of dual citizenship. Section 9(2) provides that if a citizen voluntarily acquires citizenship of a foreign country he shall cease to be a citizen of Zimbabwe. This section introduces an element of ‘voluntariness’. This means that if you acquire foreign citizenship out of your own choice and not because circumstances have forced you, you cease to be a Zimbabwean citizen by operation of law. This subsection also prohibits dual citizenship.

Section 9 (7) requires that any citizen of Zimbabwe who is of full age who is also a citizen of a foreign country who renounced or purported to renounce such citizenship shall cease to be a citizen of Zimbabwe if he fails to renounce the foreign citizenship within 6 months of the date the act came into being, unless he renounces his foreign citizenship. The section has the effect of requiring citizens to renounce their foreign citizenship by a prescribed date. If a person fails to comply with the requirement to renounce, he ceases to be a citizen of Zimbabwe. The effect of this subsection is to deprive a citizen of Zimbabwe of his citizenship status if he fails to comply with the requirements of s 9 (7).


The intention of the legislature in enacting s 9 is clearly to prohibit dual citizenship and it derives that power from s 9 of the Constitution. What the legislature is saying in both subsections is, you have a choice, its either you remain a Zimbabwean citizen or you choose to become a foreigner and that the choice is yours, but that choice has consequences. If you acquire foreign citizenship, you lose your Zimbabwean citizenship by election. The maxim, *volenti non fit injuria* is apt. A citizen consents to consequences that follow after he acquires foreign citizenship voluntarily.

Section 9 guarantees the right to nationality for as long as you remain a Zimbabwean citizen and do not acquire any other citizenship. The legislature is saying you are entitled to your citizenship by birth as long as you remain only a Zimbabwean citizen. A citizen is given the right to change his nationality but once you do that, you begin to have dual citizenship and this is contrary to the laws of Zimbabwe. Section 9 of the Constitution has to be read in conjunction with the sections prohibiting dual citizenship. The major thrust of that section is to prohibit dual citizenship. A citizen can only protect his Zimbabwean citizenship if he desists from acquiring foreign citizenship. By acquiring foreign citizenship, one is deemed to have renounced his Zimbabwean citizenship. There is no express provision under s 9 of the Citizenship Act which deprives a person of his citizenship by birth. It is a person’s voluntary conduct that results in one losing his citizenship of Zimbabwe. It means that a citizen of Zimbabwe by birth cannot be deprived of that status for as long as he has not by ‘voluntarily act’ become a citizen of another country. A provision that deprives a citizen of citizenship by birth has the effect of rendering that citizen stateless and that is contrary to public international law which provides that no person shall be rendered stateless. This is exactly what the Constitution sought to avoid by excluding deprivation of citizenship by birth in the current section. The legislature did not intend to deprive a citizen by birth of Zimbabwe of that status in s(s) 9(2) and (7) of the Citizenship Act. This court cannot impute to parliament, an intention to deprive persons of their right to citizenship by birth in the absence of plain or clear words to that effect.

The subsections in issue as well as the Constitution comply with International Standards and in particular, Article 15 of the Universal Declaration of Human Rights which provides as follows;

‘1. Everyone has the right to nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.’
 The provisions of s 9 (2) and 9(7) are in tandem with Article 15 as well as s 9 of the Constitution. The provisions do not deprive a citizen of Zimbabwe by birth, his status.

I am therefore, unable to find that the provisions of s 9(7) and 9(2) are ultra vires the provisions of s 9 of the Constitution.

**Citizenship of Zimbabwe by birth**

The law governing citizenship of Zimbabwe is provided for in section 5 of the Constitution as follows,

**“5 Citizenship by birth**

(1) Everyone born in Zimbabwe is a Zimbabwean citizen by birth if, when he or she was born

(a) either of his or her parents was a Zimbabwean citizen; or

(b) either of his or her grandparents was a Zimbabwean citizen by birth or descent.”

It is common cause that the applicant was born in this country and to parents who were both citizens of this country and hence became a citizen of this country by birth. This explains why he was subsequently issued with a passport and other identification papers in terms of the law. The respondent concedes the point that the respondent was born in Zimbabwe and to parents who were Zimbabwean at the time of his birth. The respondent concedes further that the applicant therefore became a citizen of this country by birth in terms of s 5(1) of the Constitution of Zimbabwe. The respondent however contends that the applicant subsequently lost his citizenship status. This leads us to the next issue.

**Did applicant loose his citizenship by birth in terms of s 9(7) and 9(2) of the Citizenship Act before 2005**

The applicant avers that he is a citizen of this country by birth and cannot be deprived of that status. That there was no legal obligation on his part to renounce South African citizenship as he had not acquired that citizenship and that he therefore did not lose his Zimbabwean citizenship status. The applicant’s story is that after he tried to renounce his citizenship in 2002, nothing happened until when his passport was confiscated in October 2005 when he was a Zimbabwean citizen. He claims that he does not know why it was confiscated. His further explanation is that in order to avoid being stateless, he had no option but to apply for South African citizenship and for an emergency travel document. He states that he was under contract to do consultancies in Zambia and South Africa and needed a travel document to travel there as a matter of urgency. He states that at the time he was declared a prohibited inhabitant he had acquired South African citizenship. He states that he did not do a ‘voluntary act’ as stipulated in s 9(2) of the act when he acquired South African citizenship. He wishes to apply for a Zimbabwean passport in order to enable him to travel to and from Zimbabwe. He maintains that he never lost his Zimbabwean citizenship and that he is still a Zimbabwean citizen by birth.

The applicant does not state exactly when he acquired South African citizenship nor does he attach papers to support the position that he is now a South Africa citizen. The applicant was subsequently declared a prohibited person. The applicant argues that a citizen of Zimbabwe cannot be deemed a prohibited person. That the Minister’s act of declaring the applicant a prohibited person is an unlawful act which has no effect. He has requested the court for a declaratory order to that effect. The applicant submitted that s 22 of the immigration act is not relevant because there is no question of appealing against an invalid order.

The applicant also dismissed the respondent’s suggestion that the applicant should have appealed against the decision at the Magistrate court and submitted that such an appeal is irrelevant.

The respondent submitted that the applicant had from 6 July 2011 to 6 January 2002 to renounce his South African foreign citizenship which he held by descend. That he is a South African citizen by descend and that is why he was able to obtain a South African passport easily. The respondent contended that the applicant lost his citizenship by operation of law because he failed to renounce his South African citizenship which he held by 6 January 2002 when he was required to do so. The respondent submitted that the reason why the applicant was declared a prohibited person is because he was a citizen of South Africa and he failed to renounce his South African citizenship. That the applicant lost his citizenship by operation of law and is therefore not a citizen of Zimbabwe anymore.

The law on renunciation of citizenship in Zimbabwe is governed by s 9 of the Citizenship Act. To aid in its interpretation, Cabinet issued General Notice 584 of 2002. The notice reads as follows:

**General notice 584 of 2002** provided as follows:
 “It is hereby notified for public information that Cabinet has approved the following clarification and declaration of the existing statutory rules governing the renunciation and proof of foreign citizenship.

(a) A person who is a citizen of Zimbabwe by birth may not be deprived or denied his citizenship of Zimbabwe unless he is or has become a citizen of some foreign country……

(e) The renunciation requirement does not apply to a person who only has a potential right to acquire a foreign citizenship.

(f) A person who claims to be a Zimbabwean Citizen is presumed prima facie to be a citizen of Zimbabwe if he produces a passport, birth certificate, citizen certificate, national registration certificate or other document evidencing his Zimbabwean nationality. Such person shall not be required to produce written proof or confirmation that he is not a citizen of a foreign country in order to establish his Zimbabwean citizenship status”.

Section 9(7) of the Citizenship Act requires only those citizens holding foreign citizenship to renounce such citizenship if they wish to remain Zimbabwean citizens. General notice 584 of 2002 served to clarify the rules regulating renunciation. Its reading shows that the only persons required to renounce their foreign citizenship are those who actually held such citizenship and not persons who only had a potential right to acquire a foreign citizenship. The provisions of s 9(7) were examined in Morgan Tsvangirai v Registrar General and Ors HH 29/02 where ADAM J addressed the issue of acquisition foreign citizenship and the law regarding renunciation of citizenship and said at p 46 of the judgment,

“It is apparent that the specific wording of s 9, in its subs (3),(4),(5) by deliberately using ‘acquires’, and in its subs(s)(6) and (7) by deliberately using ‘becomes’ demonstrates that the clear intention of the legislature is to prevent a citizen of Zimbabwe having another citizenship. It is the ‘acquisition’ and ‘becoming’ of a foreign citizenship that is required to be renounced so as to retain one’s citizenship of Zimbabwe. These provisions is subs(s) (3),(4),(5) (6)and (7) are not concerned with any entitlement or claim to foreign citizenship.” See also Judith Todd v the Registrar General SC 4 /03, 2003(1) ZLR232 (S)”

The applicant only had a claim to South African citizenship on the basis that his father was born in South Africa. He did not have dual citizenship of Zimbabwe and South Africa at the time the act was promulgated as he had not acquired that South African citizenship. He had not acquired South African citizenship at that stage and was not at law required to renounce such citizenship as he only had a claim to it.


Citizenship after October 2005

The applicant’s passport was confiscated in October 2005. It is not clear whether he had at that stage already become a South African citizen. The applicant decided not to disclose the date when he acquired South African citizenship. This does not help his case as it does not make it easy for the court to determine his status at the stage of the confiscation. However, it is common cause that he acquired South African citizenship after his passport was confiscated. The applicant avers that if he had not acquired South African citizenship he would have become stateless. The applicant contends that he did not acquire South African citizenship out of a “voluntary act”, but that he was compelled to do so. I am not persuaded by that argument. The act of confiscation of the passport did not deprive the applicant of his citizenship. The applicant could have challenged the confiscation of the passport at that stage. He applied for South African citizenship instead. At the time the passport was confiscated he was still Zimbabwean. Mere confiscation of passport does not render one stateless. The applicant opted for South African citizenship and he acquired the citizenship voluntarily. The word ‘voluntary’ in its simple and grammatical meaning connotes a conscious and deliberate act. I am unable to find that the applicant was compelled to acquire South African citizenship.

After acquiring South African citizenship he immediately ceased to be a Zimbabwean citizen in terms of s 9(2) of the Act which provides that a citizen of Zimbabwe shall immediately cease to be a citizen of Zimbabwe if he voluntarily becomes a citizen of a foreign country. By acquiring South African citizenship the applicant started to hold dual citizenship of Zimbabwe and South Africa and contrary to s 9 (7) of the Citizenship Act. He at that stage lost his Zimbabwean citizenship by birth.

The facts of this case are different from those in *Piroro v Registrar General and Ors* HH128/11, *Trevor Ncube v The Registrar General and Anor* HC 7613/06, *Ricardo Manwere v Registrar General of Citizenship and Anor* HH 17/02 and *Job Sibanda v Registrar General* HC3626/02. The applicants in all these cases were citizens of Zimbabwe by birth and they all had either one or both parents who had foreign origins. They all had not acquired the citizenships of the countries of their parents’ origins and they had not lost their Zimbabwean citizenship and had no citizenship to renounce. They had no dual citizenship. The court in all these cases was correct in finding that they all had no foreign citizenship to renounce. The applicant has acquired foreign citizenship which he has not renounced. He holds dual citizenship.


The applicant submitted that citizenship by birth can not be taken away without prior notice to the person concerned. That the respondents did not inform him afterwards that he was no longer a citizen. That the respondents’ action is arbitrary. Section 8 of the Citizenship Act provides for the formation of a Citizenship board. The section provides as follows;

“8 Citizenship and Immigration Board

An Act of Parliament must provide for the establishment of a Citizenship and Immigration Board consisting of a chairperson and at least two other members, appointed by the President, to be responsible for

(a) granting and revoking citizenship by registration;

(b) permitting persons, other than citizens, to reside and work in Zimbabwe, and fixing the terms and conditions under which they may so reside and work;

(c) exercising any other functions that may be conferred or imposed on the Board by or under an Act of Parliament.”

There is no legal requirement to give notice of deprivation of citizenship by birth as suggested by the applicant in terms of s 8 or any other section. Section 8 provides for the setting up of a board responsible for the granting and revoking of citizenship by registration only. There is no provision entitling a citizen by birth to make oral or written submissions before he is deprived of citizenship.

Section 9 (2) is clear that once a Zimbabwean citizen acquires foreign citizenship he ‘immediately’ ceases to be a Zimbabwean citizen. The citizenship is taken away by operation of law. There is no legal requirement for notification prior notice of deprivation.

The applicant was declared a prohibited person after he had acquired South African citizenship. The issue is whether the Minister’s action at that stage was unlawful. The applicant was prohibited from entering Zimbabwe because the Minister had deemed him an ‘undesirable inhabitant of or undesirable visitor to Zimbabwe’ in terms of s 14 (g) of the Immigration Act, [Cap 4:01]. The ministerial order declaring him an undesirable inhabitant or undesirable person does not state the reasons why he was so declared. The minister is not obliged to give his reasons for the decision. The applicant claims that he is still a citizen of Zimbabwe and contends that a citizen of a country by birth cannot be declared prohibited a person and he places reliance for this proposition on s 15 (2) of the Immigration Act [Chap 4;01] which provides as follows,


“15 Persons who are not prohibited persons

(1)….

(2) The following persons or classes of persons shall not be prohibited persons—

(a) a Zimbabwe citizen;….”

The facts are clear that the applicant had ceased to be a Zimbabwean citizen at the time he acquired South African citizenship. He became a hold of dual citizenship. The applicant requested the court to review the minister’s decision on the ground that his decision declaring him an undesirable inhabitant or undesirable visitor to Zimbabwe is unlawful. The applicant breached the citizenship laws. The minister’s decision declaring him to be a prohibited person cannot therefore be said to be unlawful. Once the applicant ceased to be a citizen of Zimbabwe he became subject of immigration control. Section 21 of the Immigration Act [Cap 4:01] provides for the remedy open to an aggrieved party in a case such as this. A prohibited person may appeal to the nearest Magistrates Court against the refusal to enter Zimbabwe or the allegation that he is a prohibited person. The applicant has chosen not to do this. The applicant therefore remains a prohibited person in terms of the Immigration Act. The actions and decision of the Minister cannot therefore be held to be unlawful.

The applicant fell foul of the law prohibiting dual citizenship. He ceased to be a citizen of Zimbabwe by virtue of the fact that he acquired foreign citizenship. The applicant indicated that he is prepared to renounce the South African citizenship he currently holds in order to regain his citizenship status in Zimbabwe. That is his choice and decision to make.

The application is dismissed.

As regards the question of costs, I have considered that this application is both of legal interest and national importance. I do not consider that either party has been unreasonable in its approach to this matter. There is no order as to costs.

Lawyers for Human Rights, Applicant’s attorneys
Civil division of the attorney General’s Office, Respondent’s attorneys
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