by Alex T. Magaisa
The birth of President Mugabe’s grandchild in a foreign country has sparked a lot of commentary among Zimbabweans. Reports indicate that President Mugabe’s daughter, Bona and her husband Simba Chikore were this weekend blessed with a son.
Controversy over place of birth
Some people think the couple’s decision to have their first child delivered in a foreign country is a sad indictment on President Mugabe’s leadership, under whose stewardship Zimbabwean health-care provision and facilities have drastically deteriorated since independence. The Chronicle newspaper, a state daily, reported last year a 30% death-rate among babies born prematurely at Mpilo Hospital, the biggest referral in Bulawayo and the Matabeleland provinces. The situation across smaller hospitals and clinics is dire. A household survey by UNICEF in 2014 showed a rate of 581 deaths per 100,000 live births in the preceding five years since 2009. These mother and child deaths are preventable.
It is not surprising that the President’s daughter and her husband chose to look elsewhere, even though, like most wealthy Zimbabweans, they would most likely have chosen a well-kept private hospital if they had chosen Zimbabwe as the place of delivery. But private hospitals have also been facing challenges: St Anne’s a well-known private hospital closed down in March this year, after failing to pay rentals. But the couple’s decision is also consistent with President Mugabe and his family’s health-care preferences in recent years: they all use foreign health-care facilities, usually flying to Singapore for treatment and health-checks.
Others, however, see it as the couple’s legitimate exercise of their freedom of choice. They are entitled, the justification goes, like any other couple to choose where they want their child to be born. And they might have other reasons, including protection of privacy might have influenced their decision.
The arguments on both sides are understandable. People are concerned when the country’s leadership (and by extension their families) do not trust the institutions they are in charge of. Zimbabweans living in foreign countries have been exposed to different systems, where leaders and their families are held to account, particularly in regard to the use of public services. In those countries, if a politician opts to use private health-care while he is in charge of the public health services provider, he would not be able to contain the amount of criticism from the media and members of the public. It would be even worse if they chose to use foreign health-care facilities, leaving the dilapidated services of home.
But there are fundamental questions: How does one claim moral authority over the people in such circumstances? How do ordinary people respect the leadership when they talk about “African solutions to African problems”, when they and their families can’t even trust the African institutions under their charge, choosing instead, foreign institutions? How does the country’s chief executive officer lead a “Buy Zimbabwe” campaign, when they and their families shun Zimbabwe and prefer foreign? People are rightly concerned by the apparent hypocrisy.
Still, on the side of the couple, their decision would probably have been made in consideration of the best interests of their child. They happen to have the means that most of their compatriots at home are lacking. But they are entitled, as any parent should be, to do what they feel is right for their child. If anyone should be embarrassed by that decision, it is the country’s leadership. One can’t miss the irony in the fact that the first grandchild of an avowed defender of Africa has been delivered not in Zimbabwe or any African country, but outside in a foreign country – not by accident but by choice.
Why the President’s grandchild is a Zimbabwean citizen by birth
There’s a second issue which has cropped up in discussions among Zimbabweans: what does this mean for the citizenship of the President’s grandchild? Is he a Zimbabwean citizen? Does it mean he will be a dual citizen? Does this mean President Mugabe’s regime will now be more open to the idea of dual citizenship? Will Tobaiwa Mudede, the stubborn, long-serving Registrar-General, continue frustrating the recognition of dual citizenship? (For more see link: http://alexmagaisa.com/dual-citizenship-in-zimbabwe/ )
These questions arise from the controversy, confusion and unsureness that still surrounds Zimbabwe’s laws on dual citizenship, three years after the new Constitution recognised the right to dual citizenship of persons who are Zimbabweans by birth. The debate also reflects the limited knowledge and understanding that Zimbabweans have regarding their citizenship laws. As I explain here, although President Mugabe’s grandchild was born on foreign soil, actually, he qualifies as a citizen of Zimbabwe by birth.
The relevant provision of the Constitution is s. 36(2)(a) which provides as follows:
“Persons born outside Zimbabwe are Zimbabwean citizens by birth if, when they were born, either of their parents was a Zimbabwean citizen and –
- ordinarily resident in Zimbabwe …”
Since both Bona and Simba Chikore are Zimbabwean citizens, all that needs to be shown is that at least one of them is “ordinarily resident in Zimbabwe”. The fact that their child was born outside Zimbabwe is irrelevant to whether or not he can be a citizen by birth.
It might surprise most people that a person can be born on foreign soil can still be regarded at law as a Zimbabwean citizen by birth. This is because the general understanding among people is that citizenship by birth must necessarily arise from birth on home soil. But actually, since citizenship is a legal construct, it can be acquired or conferred in different ways.
Birthright citizenship
A common form of citizenship is called jus soli (law of the soil) citizenship, is awarded on the basis that a person is born in a particular country. It is also referred to as birthright citizenship. It allows persons who are born within a country to become citizens by virtue of being born there. The USA is an example of a country which predominantly uses this form of citizenship in granting citizenship.
Right of blood citizenship
The other form of citizenship is called jus sanguinis (right of blood) citizenship which is based on parentage. Under this system, a person acquires citizenship through their parents or ancestors. A person’s place of birth is less important than the citizenship of his parents, because it is the latter that defines the person’s citizenship. Where you are born is less important than by whom you were born. Germany is an example of a country that has a predominantly Jus Sanguinis (right of blood) citizenship.
However, in practice countries use elements of both systems, although one is usually predominant. Zimbabwe has elements of both but it more inclined towards right of blood citizenship. This is why under section 36(1) of the Constitution, even if a person is born in Zimbabwe, he or she doesn’t automatically become a Zimbabwean citizen by birth unless one of the parents or grandparents is/was a citizen of Zimbabwe. Being born in Zimbabwean soil does not automatically confer a person with citizenship by birth. This also explains why a person who is born on foreign soil to a Zimbabwean parent who is ordinarily resident in Zimbabwe, he or she will be a citizen by birth. This why Bona and Simba Chikore’s child qualifies as a citizen of Zimbabwe by birth.
Why recognise foreign-born persons as citizens by birth?
Incidentally, the broad form of citizenship by birth, which allows recognition of citizenship by birth even where a person is born outside Zimbabwe was designed as an inclusive mechanism in the context of the contestation over dual citizenship. During the constitutional negotiations, ZANU PF was generally opposed to dual citizenship, a position with historical roots going back to their opposition of dual citizenship at the Lancaster House Constitutional Conference in 1979. The Patriotic Front thought dual citizenship was created only to protect the interests of the white minority who also held British nationality. They also thought dual citizens had split loyalties and this wasn’t good for nation-building.
On the hand, the MDC parties were in favour of dual citizenship. There is a huge number of Zimbabweans that have migrated to other countries since 2000 and they were demanding the recognition of dual citizenship. This produced a stalemate. I was part of the advisory team to the MDC-T during the negotiations and had done some research in this area. The stalemate was resolved when we proposed the equivalent clause in the Namibian Constitution, which provides robust protection of citizenship by birth. It protects citizenship by birth under any circumstances, including that it cannot be taken away simply because a person has acquired citizenship of another country. We also explained that circumstances had since changed from 1979 and that ZANU PF’s grounds of opposition then were no longer relevant. In any event, we pointed out, many of their own children and relatives had migrated to the Diaspora and were in need of dual citizenship, too.
The compromise was to allow recognition of dual citizenship to Zimbabwean citizens by birth. Parliament would retain the power to regulate it in the case of other citizens such as citizens by descent or registration. Now, in order to broaden the availability of dual citizenship, we thought it better to expand the scope of citizenship by birth – by allowing those born outside to at least one Zimbabwean parent who can show they are ordinarily resident in Zimbabwe to be regarded as a citizens by birth. The more people there are who are recognised as citizens by birth, the broader the scope of dual citizenship.
In this case, the President’s first grandchild not only qualifies as a Zimbabwean citizen by birth but he is also entitled to dual citizenship, should he ever wish to acquire another citizenship!
waMagaisa
This article has been reproduced with the author’s written permission and was originaly published at www.alexmagaisa.com .
If you want more on dual citizenship, see our previous article:
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