Editorial Comment: Dual citizenship: Letter, spirit of law supreme

By IAfrica
In Zimbabwe
Jun 28th, 2014

THE new Constitution requires changes to around 400 Zimbabwean laws, plus, it is now apparent, to quite a few sets of regulations issued under those laws with the laws and regulations over citizenship, immigration and passports needing more radical changes than most. The Government has made considerable progress on the easy changes. Well over half the 400 laws require only minor changes, sometimes just a word or two or a change in a reference to another law.

A single Bill, incorporating all these simple changes, is now going through a checking and consultative process and will be presented to Parliament, probably in the next session.

The process for the remaining third of laws needing changes will take longer to draft and approve and in some cases, our citizenship law is one of these, allows an opportunity to re-examine the whole law and changed circumstances and see how we can get something that follows not just the letter of the Constitution but also the spirit of the Constitution, a document generated with massive input from the people of Zimbabwe, not just their elected representatives in Parliament.

The Constitutional Court, in a ruling this week, has made it clear in a unanimous decision that a citizen by birth remains a citizen regardless of what other rights they acquire in other countries, even if that includes citizenship and a passport. So a person born in Zimbabwe has an absolute right to enter, live and work in Zimbabwe.
This ruling automatically creates a significant number of dual citizens. We need not be afraid of this. International law has long solved the principal problem of where dual citizens owe their loyalty. They owe it to the country where they live if they hold citizenship of that country, regardless of any other citizenship they might hold.

To take a specific example: Dr Farai Madzimbamuto, who brought the case to the Constutional Court. He is a dual citizen of South Africa and Zimbabwe.
But when in Zimbabwe he cannot be protected by South Africa; it is as if he is a single citizen of Zimbabwe. And when he is in South Africa and the police come to call, all the Zimbabwean ambassador can do is suggest he hires a lawyer; the doctor cannot be offered any protection or assistance by Zimbabwe.

With the vast majority of potential dual citizens entitled to retain dual citizenship, we now might want to re-examine the position of two other groups of citizens, those who have citizenship by descent and those who are immigrants who have applied for citizenship after proving their commitment to Zimbabwe.

We feel that those with at least one Zimbabwean-born parent who activate their right to citizenship by descent should be allowed dual citizenship, although this is not a guaranteed constitutional right.

We should be happy they are proud to be Zimbabwean and have kept their ties to their parents’ native land.
Even citizens by registration can now be treated differently. The present laws came into effect when we were too close to the days when someone fluent in a European language could claim citizenship after two years.

We are now 34 years down the line with a Constitution that gives the right to citizenship to an immigrant after 10 years residency, or five years if married to a Zimbabwean, so we demand a high level of commitment to Zimbabwe before we give them citizenship.

The numbers are so tiny now that it seems capricious not to give such people with this long commitment to Zimbabwe full citizenship rights. Thanks to international law, we cannot lose by this and we can make life a little easier for a handful of people.

The Constitutional Court hearing also showed up the need to revise regulations, as well as laws. The immigration regulations obviously now need some revision. This needs care. For example, if someone walks in with a Fijian passport that gives Zimbabwe as a place of birth, we see no reason to trust the foreign bureaucrat.

Let the person produce their Zimbabwean birth certificate as well and if there is any doubt about possible forgery let the Immigration Department check the records of the Registrar-General.

They can be let in for a week for this simple process. If we extend this to other citizens let immigration officers check authenticity of citizenship certificates. We do not want international criminals wandering around with forged documents but we should be able to look after our own.

Neither the Constitution nor the court ruling creates an open door. But what they do say is if someone is one of ours they can remain so and we should create laws and regulations that reflect the spirit of that concept, while being perfectly willing to check that those using these rights are in fact who they say they are.

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