Dual citizenship and the new constitution

VARIOUS opinions are doing the rounds on the internet and other forms of media with regard to the issue of dual citizenship in Zimbabwe under the new Draft Constitution, should it become law.

This is in light of the impasse between the three Zimbabwean political parties that make up the inclusive government (Zanu-PF, MDC-T, and MDC) on how to proceed with this rather sensitive issue, which may or may not have far-reaching implications on the power dynamics in the country.

Copac, the body tasked with gathering and condensing the views of Zimbabweans at home and abroad on this issue, failed to come up with a prevailing view on this matter and hence it was left to the three political parties in the Global Political Agreement (GPA) to horse trade on behalf of the people of Zimbabwe.

Following months of disagreement on the way forward, the negotiators finally agreed to pass the responsibility of curbing the excesses or none thereof of citizenship law to Parliament. In other words, the Draft Constitution sets out the powers of parliament in relation to citizenship in a mirror image of the Lancaster House Constitution.

The provision, like its predecessor (Section 9 of the Lancaster House Constitution as amended) â€" provides that an act of Parliament may provide for (a) the prohibition of dual citizenship, (b) the procedures for the renunciation of citizenship; (c) the circumstances in which persons qualify for or lose their citizenship by descent or registration.

It is an agreed standpoint that the Lancaster House Constitution on its own does not prohibit dual citizenship. A provision curbing section 9 of the Zimbabwe Constitution was first introduced in 1984. So pursuant to section 9 of the Constitution that provides that an Act of Parliament may make a provision in respect of citizenship, the Zimbabwe Parliament in 1984 enacted the Citizenship of Zimbabwe Act (4:01).

Under Part IV of the Act of Parliament, dual citizenship is outlawed: "(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.

"(3) A citizen of Zimbabwe who acquires by marriage the citizenship of a foreign country shall cease to be a citizen of Zimbabwe one year after the date of the marriage, 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 a declaration confirming such renunciation in the form and manner prescribed."

Some legal minds have opined that in the event of the draft Constitution becoming Zimbabwe's supreme law, then the parliamentary provision curbing dual citizenship automatically falls away. This is wrong.

If the Draft Constitution becomes law, Parliament still has the responsibility to repeal or amend Part IV of the Citizenship of Zimbabwe Act. If the new constitution does not explicitly allow for dual citizenship, then the Act remains good law until it is repealed.

So the assertion that a new constitution in Zimbabwe automatically nullifies existing Acts of Parliament taking the Zimbabwe constitution to the pre-1979 days without the necessary legal processes to make them consistent with the new supreme law is misleading.

In the light of Part IV of the Citizenship of Zimbabwe Act, dual citizenship remains outlawed in the new constitution until Parliament sits to repeal or amend the ultra vires clause/provision that is inconsistent with the new constitution to the extent of that inconsistence. All laws that are in force when the new constitution takes effect continue in force subject to any amendment or repeal.