11 October 2012

Zimbabwe: Draft Zimbabwe Constitution Fails Citizenship Test

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Most existing commentary on the citizenship provisions in the draft Constitution of Zimbabwe released on 17 July 2012 by the Parliamentary Select Committee (COPAC) has focused on the issue of dual citizenship, and on the status of those who may have the right to claim the citizenship of another state - whose Zimbabwean citizenship has been contested in recent years.

While these are important issues, this commentary by the Open Society Foundations - which is based on an analysis of all the citizenship provisions in the COPAC draft against existing law in Zimbabwe and international standards and with reference to the amendments proposed by ZANU-PF published in late August - argues that it is perhaps even more important that the basic framework proposed by the COPAC draft is quite unclear in some respects and, if adopted as it stands, is highly unlikely to resolve the controversies on this issue that have plagued Zimbabwe for the past decade and more.

Moreover, despite some improvements, the draft fails to respect Zimbabwe's obligations under international law to ensure that children born on its territory have the right to Zimbabwean citizenship if they do not have the right to any other citizenship.

Improvements

The draft Constitution includes significant improvements over the existing Constitution: it provides improved protections against statelessness and it enshrines a right for all citizens to passports, identity documents and birth certificates (in the case of birth certificates, this should not be restricted to citizens, however). The new draft also confirms some of the important changes brought in by the constitutional amendments of 2009, including the final removal of gender discrimination and the extension of rights to obtain citizenship in some circumstances from grandparents as well as parents.

The right to citizenship

The most important way in which the draft COPAC Constitution is deficient is that it does not respect Zimbabwe's obligations under the African Charter on the Rights and Welfare of the Child to guarantee the right to a name and a nationality (in this context, a synonym for citizenship) to all children. Article 6 of the Charter, which Zimbabwe ratified in 1995, requires States Parties to include in their constitutions the principle that "a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child's birth, he is not granted nationality by any other State in accordance with its laws." This principle, which is also provided in the UN Convention on the Reduction of Statelessness (to which Zimbabwe is not yet a party), and reflected in the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, is an important protection against statelessness, and Zimbabwe is not taking the opportunity of this moment of constitutional revision to ensure it is respected.

Thus, although the draft Constitution provides that citizenship cannot be taken away from a person if he or she thereby becomes stateless, it does not provide strong protection at the other end of the process, by granting citizenship to a child who does not acquire another country's citizenship. The draft makes the welcome addition to Zimbabwe's existing citizenship laws that a child of unknown parents is presumed to be citizen (Section.3.2(3)); but there are many more children whose parents are known, but are either stateless themselves, or do not have the right to pass citizenship to a child born outside of their own country of citizenship.

It would be desirable if in addition to the basic protection given to a child who would otherwise be stateless, Zimbabwe adopted the provision common in many African (and other) countries that a child born in the territory who is still ordinarily resident at majority, or a child born in the country of one parent also born there, has the right to claim citizenship. Many of those whose citizenship has been under contestation in Zimbabwe would be protected by such provisions, which have the additional merit of being much easier to understand than the categories of citizenship currently provided.

Categories of citizenship

The draft Constitution confirms the three existing categories of citizenship: by birth, by descent and by registration. However, the current significance of the distinctions among them is quite hard to grasp, especially when the COPAC text provides, in the opening section on citizenship, that all citizens are "equally entitled to the rights, privileges and benefits of citizenship" (Section.3.1(2)).

In order to understand these categories, some history is necessary. The distinction between citizenship by birth and by descent derives from the system that was established in most Commonwealth countries at the date of independence. According to this system, those born in the country after independence became citizens based solely on the fact of their birth in the country, irrespective of the citizenship of their parents (unless the parents were in the country with diplomatic status). These citizens were citizens by birth; known also by the Latin tag as citizens by jus soli, or law of the soil. (Most African countries, and the UK itself, from which the provision derived, have since removed the absolute jus soli rule.) Those born outside the country of a citizen parent (or only a citizen father, in many cases) were citizens by descent (citizens based on jus sanguinis, law of blood). Zimbabwe inherited variations to this system that already applied in Rhodesia following the Unilateral Declaration of Independence in 1965. The 1979 Constitution was exceedingly complex, creating a series of exceptions and qualifications to jus soli rights. In summary, it limited the transmission of citizenship by birth to children born in the country of a father who was a citizen or ordinarily resident and legally present in Zimbabwe; while transmission of citizenship to children born outside the country was limited to one generation, through provisions that stated that only a citizen "otherwise than by descent" could pass on citizenship to a child also born outside the country. Gender discrimination also applied, in that it was the only father's citizenship that counted for the purposes of the rights of the child (unless born out of wedlock, in which case only the mother's citizenship was relevant). The provisions on award of citizenship by registration to adults (in other countries more usually called naturalisation), based on marriage, long residence, or other criteria, were less complex. However, in the case of marriage, only the wife of a Zimbabwean citizen had the right to acquire citizenship on that basis, but not the husband.

The constitutional framework on citizenship remained the same until 1996, when gender discrimination in the transmission of citizenship to children was removed, after a long campaign by women's rights activists and a Supreme Court ruling (in the Rattigan case). However, the right to citizenship of the child of a father ordinarily resident and legally present in Zimbabwe was not extended to a child of a mother with that status; instead, citizenship based on birth in Zimbabwe was restricted to children of citizens, removing any rights that came simply from birth in the territory. Citizenship by descent was still limited to one generation born outside the country. This framework remained in place until 2009. The 2009 amendments to the 1979 Constitution (that introduced changes related to the establishment of the government of national unity), and now the 2012 COPAC draft, keep the terminology of citizens by birth and by descent, but remove the restriction on transmission of citizenship to children born outside the country.

A child born in Zimbabwe is, under the 2009 constitutional amendment and the COPAC draft, a citizen by birth if either parent is a citizen (of any type), or if any grandparent is a citizen by birth or descent (that is, not if the grandparent was only registered as a citizen) (Section 3.2(1)). A child born outside Zimbabwe is also a citizen by birth if one of the parents is a citizen (of any type) and "ordinarily resident" in Zimbabwe or working for the state or an international organisation (Section 3.2(2)). These provisions expanded the law to provide a right to citizenship deriving from grandparents -- but did not restore the right to citizenship by birth for children born in Zimbabwe of legal residents.

In addition, the COPAC draft introduces a welcome new provision that a child found in Zimbabwe "who is, or appears to be, less than fifteen years of age, and whose nationality and parents are not known, is presumed to be a Zimbabwean citizen by birth." This safeguard is in line with Article 2 of the 1961 Convention on the Reduction of Statelessness.

The 2009 and COPAC provisions on citizenship by descent are that a child born outside Zimbabwe is a citizen by descent if either parent or any grandparent was at the time of the birth a citizen "by birth or descent" or if either parent was a citizen by registration. In addition, the birth must be "registered in Zimbabwe in accordance with the law relating to the registration of births" - a foreign birth certificate will not be sufficient to prove the right to citizenship (Section 3.3).

In effect, the 2009 constitutional amendments, preserved in the COPAC draft, removed the distinction between citizens by birth and by descent in terms of transmission of citizenship, while retaining the terminology. The impact is positive, in that the generational restriction on transmission of citizenship for those born outside the country is removed; but the meaning of the distinction is made very confusing. Indeed, its only significance appears to be potentially in the context of dual citizenship.

The COPAC draft keeps the same terms as the 2009 constitutional amendment for citizenship by registration, providing for a right to apply after 10 years' residence in the country, or marriage for at least 5 years (Section 3.4 (1)&(2)). These provisions are longer than those in most African countries, but within the international norms. Gender discrimination in relation to acquisition of citizenship by a spouse was removed only in 2009, and gender neutrality is preserved in the COPAC draft; the ZANU PF suggested amendments concede gender neutrality but propose an increased period of marriage of ten years before citizenship may be acquired. A child adopted by a Zimbabwean citizen is entitled to be registered as a citizen - this should rather be an entitlement to recognition as a citizen by birth (Section 3.4(3)). No mention is made of the award of citizenship by registration to refugees and stateless persons, whose access to citizenship by appropriate procedures should be facilitated, especially in the case of stateless persons.

Dual citizenship

The distinction between citizens by birth and by descent seems to become meaningful only in the context of the provisions in the COPAC draft on dual citizenship, which are themselves quite confusing. The draft is silent on the question of dual citizenship for citizens by birth, leading to the presumption that dual citizenship is permitted. However, the text provides that parliament may make legislation regarding "the prohibition or permitting of dual citizenship in respect of citizens by descent or registration". This wording then confuses the situation for citizens by birth, since the only reason for which legislation would be needed, given the presumption that what is not expressly forbidden is permitted, is the prohibition of dual citizenship. However, the intention appears to be to enable restrictions on the ability of Zimbabweans born outside the country to retain Zimbabwean citizenship if they acquire a new citizenship, and/or a requirement that those registering as Zimbabwean citizens renounce another citizenship. The ZANU-PF amendments to the COPAC draft made this intention more explicit by referring only to prohibition of dual citizenship for citizens by descent or registration. It is only here that the concept of citizenship by descent has any meaning, rather than in the transmission of citizenship itself.

SADC citizens

The COPAC draft constitution includes an important new provision aimed at redressing some of the injustices of the past decade committed against persons born in Zimbabwe with one or more parent who was a citizen of one of the neighbouring countries of the Southern African Development Community (SADC). Such a person is under the draft recognised as a citizen by birth, if the person is "ordinarily resident in Zimbabwe" when the constitution comes into effect. This provision should in theory remove the ambiguity surrounding the citizenship of those of Mozambican, Malawian, Zambian and other southern African descent. However, given that even under the current laws the status of many of those denied confirmation of Zimbabwean citizenship by the Registrar-General should not have been problematic, this provision would likely face difficulties in implementation. Moreover, there are many others whose citizenship has been denied whose parents were not from SADC countries but from further afield. And finally, the reality is that many people whom this provision could benefit have had to leave Zimbabwe because their citizenship has been denied, and they will therefore not be "ordinarily resident" on the relevant date. The ZANU PF proposed amendments delete this provision altogether.

Revocation of citizenship

The COPAC draft for the first time introduces provisions into the constitution on revocation of citizenship, which was previously left to act of parliament (Section 3.5). This is welcome, in that it restricts the reasons for which citizenship may be taken away to fraud (in the case of those who are citizens by birth under Section 3.2(2), ie are born outside the country; or citizens by registration), or collaboration with the enemy in time of war (for citizens by registration only). In addition, it is specified that a child of unknown parents recognised as a citizen by birth loses that citizenship if his or her "nationality or parentage becomes known, and reveals that the person was a citizen of another country". Given that dual citizenship is permitted for citizens by birth, this seems an entirely unnecessary restriction; and possibly very harmful for the person concerned if the identity of the parents becomes known at a much later date. Another positive inclusion is that the COPAC draft provides that Zimbabwean citizenship must not be revoked if the person would be rendered stateless, which is in line with Article 8.1 of the 1961 Convention on the Reduction of Statelessness.

Citizenship and Immigration Board

The COPAC draft provides for the establishment of a Citizenship and Immigration Board to be responsible for decisions on citizenship by registration (only). This board, like its current version, is insufficiently independent, since its three members are appointed by the President without further oversight, and has limited jurisdiction; while its powers are not specified by the constitution, and there are no formal guarantees of due process in proceedings before it. A right of appeal to the courts is not explicitly included.

Recommendations

The citizenship provisions of the draft Constitution should be simplified and its measures against statelessness strengthened. In particular:

1. A child born in Zimbabwe should be a citizen by birth if either parent is a citizen of any type, or a legal resident, or if a grandparent is a citizen other than by registration;

2. A child born outside Zimbabwe should also be a citizen by birth if either parent is a citizen of any type, or if a grandparent is a citizen other than by registration;

3. The registration of a child born outside Zimbabwe should be possible either in Zimbabwe or at a consulate of Zimbabwe in the relevant or closest country;

4. A child of unknown parents under the age of 15 found in Zimbabwe should be a citizen by birth, and should not lose citizenship if the identity of the parents subsequently becomes known;

5. A child born in Zimbabwe who is otherwise stateless should be a citizen by birth;

6. A child born in Zimbabwe who is still resident there at majority, or of one parent also born there, should have the right to acquire citizenship;

7. A child adopted by a Zimbabwean citizen should be entitled to recognition as a citizen by birth;

8. The award of citizenship by registration should be facilitated for spouses of citizens (including by a shorter residence period than for other applicants) as well as for refugees and stateless persons;

9. Birth registration should be the right of all children born in Zimbabwe, not only children who are citizens;

10. All citizens should be "equally entitled to the rights, privileges and benefits of citizenship" in relation to dual citizenship as much as the rights to transmit citizenship to their children and spouses;

11. Measures to restore citizenship to those whose rights have been in doubt should be expanded beyond SADC citizens and those who are ordinarily resident in Zimbabwe;

12. Due process protections should be strengthened in relation to the composition, jurisdiction, powers and procedures of the Citizenship and Immigration Board, and the right to appeal to the courts.

It would be important to bring the Citizenship Act into line with the new text (the current Citizenship Act does not conform with the 2009 amendments to the 1979 Constitution).

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