by Alex T. Magaisa
When President Mugabe attended the University of Fort Hare’s centenary celebrations at the weekend, he was reported to have made commented to Zimbabwean students regarding the issue of dual citizenship. According to a report broadcast on ZiFM Stereo radio station, as captured on social media by news review service, @ZimMedia Review, President Mugabe told the students, “Once you take up citizenship of another country, you cancel your citizenship. We don’t accept multiple, or dual citizenship”. Speak on the businessman, Mutumwa Mawere, a Zimbabwean who is also a South African citizen, President Mugabe said, “I met him and still speaks as if he is Zimbabwean, but he took up South African citizenship”.
The statements suggest that President Mugabe is grossly misinformed on the law of dual citizenship in Zimbabwe.
The new constitution which came into force three years ago, on 22nd May 2013, does not prohibit dual citizenship for citizens by birth. This position has been confirmed by the Constitutional Court on at least two occasions, ironically in one case that was brought by Mutumwa Mawere and another involving Farai Madzimbamuto. In both cases, the highest court in the land has confirmed that dual citizenship for citizens by birth is protected under the new constitution. The fact that President Mugabe singles out Mawere as an example to say he is no longer a Zimbabwean when in fact there is a clear constitutional case in which his dual citizenship was upheld by the highest court in the land raises great concern over the President’s capacity to grasp and process facts that are publicly available.
The statements attributed to President Mugabe demonstrate that he is blissfully unaware of the law as it presently applies and which he is expected to protect. He is making reference to the legal position before 2013 when there was a blanket ban on dual citizenship under the Citizenship Act. The Constitutional Court has since ruled that the Citizenship Act does not apply to citizens by birth as this would be inconsistent with the constitution.
When the constitution was being crafted, the intention was to allow Zimbabwean citizens by birth to enjoy complete protection of their citizenship. It was decided that citizenship by birth would not be affected by a person taking citizenship of another country. In terms of section 42(e.) of the Constitution, the only circumstances in which Parliament may pass a law to prohibit dual citizenship is in the case of citizenship by descent or registration. Never in the case of citizenship by birth.
Reaffirming this position, the Constitutional Court in the Madzimbamuto case stated,
“a Zimbabwean citizen by birth does not lose his or her citizenship on acquiring a foreign citizenship. He or she is entitled to hold foreign citizenship and a foreign passport. Indeed, the Constitution has made it clear that Zimbabwean citizenship by birth cannot be lost”.
There is no doubt, therefore, that dual citizenship for citizens by birth is perfectly constitutional and legal.
However, it is also evident that President Mugabe is grossly misinformed regarding the law on dual citizenship. This is hardly surprising given that the Registrar-General, Tobaiwa Mudede, who is partly responsible for the administration the system that regulates citizenship and its benefits has been stubbornly resisting the application of the new constitutional rule. Both Mawere and Madzimbamuto had to go to the Constitutional Court to secure relief because Mudede was being intransigent. With people like Mudede around him, it is hardly surprising that President Mugabe has a completely wrong understanding of the current law of dual citizenship.
Betrayal of constitutional duty
However, President Mugabe’s statements on dual citizenship are not only wrong and misleading, but they betray a blatant disregard of the constitution which he is obliged to uphold and defend. Section 90(1) of the Constitution provides that,
“The President must uphold, defend, obey and respect this Constitution as the supreme law of the nation and must ensure that this Constitution and all other laws are faithfully observed”
In addition, the Oath that is taken by a President in terms of the Third Schedule of the Constitution provides as follows:
“I … as President swear that as President of Zimbabwe, I will be faithful to Zimbabwe and will obey, uphold and defend the Constitution and all other laws of Zimbabwe …”
It is perfectly clear that obeying, respecting and defending the constitution are constitutional duties of the President. In light of the President’s wrong and misleading pronouncements on dual citizenship, it is arguable that he failed to perform his constitutional duty. It is also arguable that he broke his oath of office.
Legal consequences
The consequences of this failure of constitutional duty are provided for under section 97(1)(b), which deals with the removal of the President. It provides a number of grounds under which a President may be removed from office. One of them is the President’s “failure to obey, uphold or defend the Constitution”. The question of removal of the President may be investigated if at least half the membership of a joint sitting of Parliament (the National Assembly and Senate sitting together) may resolve that it should be investigated.
For its part, Parliament has a duty to protect the Constitution as provided for in section 119(1) and (2) which states, “Parliament has power to ensure that the provisions of this Constitution are upheld and that the State and all institutions and agencies of government at every level act constitutionally and in the national interest”. There is a clear misrepresentation and violation of the Constitution in the President’s misleading statements and Parliament is duty-bound to protect it.
Parliament is also under an obligation to bring Mudede to account for continuously acting in violation of the clear constitutional position on dual citizenship. Mudede’s intransigence is evident on the website of the Registrar-General’s Office, where three years after the new Constitution came into force it still states as follows:
“Prohibition of dual citizenship
No adult citizen of Zimbabwe shall be entitled to be a citizen of foreign country. However, minors are allowed to enjoy dual citizenship until they turn 18 but before the 19th birthday they have to make a choice as to their preference of citizenship.”
This public statement is completely wrong, misleading, irresponsible and unconstitutional, just like President Mugabe’s statements at the weekend. The statements might not be sufficient to cause an impeachment, but they are an indication of a bigger problem on the part of the President. The other problem is that the President’s statements will only serve to embolden public officers like Mudede, who have been resisting the new dual citizenship dispensation. It is important to correct the misleading representations.
What can citizens do?
Zimbabweans can petition Parliament to consider any issue which is within the scope of its authority. This right which is relatively unknown by most Zimbabweans is specifically provided for in section 149(1) of the Constitution which states that,
“Every citizen and permanent resident of Zimbabwe has a right to petition Parliament to consider any matter within its authority, including the enactment, amendment or repeal of legislation.”
According to section 149(2) how a petition should be presented to parliament must be set out in Standing Orders of Parliament. It is up to citizens or permanent residents to approach their MPS and ask about the procedure to present a petition to Parliament. If for example, people feel that Parliament should investigate the conduct of the President in regard to his duty to uphold the constitution, then section 149 of the Constitution provides a facility for such petitions.
