On May 22, 2013, new Zimbabwean Constitution was born and with it a lot was and is expected from its operationalisation, but regrettably the first few days of its life have already revealed more about its limitations in changing attitudes.
Mutumwa on Tuesday with Mutumwa Mawere.
In 1980, President Robert Mugabe correctly captured the spirit of the moment and spoke for many in saying: “Sons and daughters of Zimbabwe, I urge you to participate fully and jubilantly in our Independence celebrations and to ensure that all our visitors are well entertained and treated with utmost hospitality. I shall be one in spirit and love, in loyalty and commitment with you all. Forward with the Year of the People’s Power! Long live our Freedom! Long live our Sovereignty! Long live our Independence!”
In trying to understand what Mugabe meant then by “sons and daughters of Zimbabwe”, one has to examine the transformation of these words into the current political understanding on identity and citizenship in just over 33 years of the building of a new nation.
The debate on citizenship and identity is not exclusively Zimbabwean, but a universal one.
President Barack Obama, for example, whose African heritage is well established, has not escaped the scrutiny regarding his place of birth and citizenship thereof only because he was chosen by American people to be the face of President of the country.
Obama’s place of birth would ordinarily be irrelevant if there was nothing at stake.
However, citizenship can be manipulated to regulate perceived political competition rather than promoting shared values on what matters.
The fact that Obama’s father is African is common cause and, therefore, anyone who shares his profile of having an African-born father and an American-born mother, makes that person African.
His father was Kenyan and this alone entitles Obama to the citizenship of Kenya should he choose to assume that identity. He has chosen to be American, but that does not take away his umbilical link to Kenya and Africa in general. That would make him qualify as a son of Kenya in the words of President Mugabe.
The journey of Zimbabwe’s independence has regrettably blurred if not undermined the definition of “sons and daughters of Zimbabwe” to produce the kind of absurdity that I was exposed to on May 17, 2013 by Tobaiwa Mudede, the Registrar-General of Zimbabwe.
The fact that more than two weeks have elapsed since this matter was reported and none of the Principals in government have made a comment must be a cause for concern.
At the very least, I would have expected Deputy Prime Minister Arthur Mutambara whose family resides in South Africa to join the debate.
In fact, when I met him a few days ago in Johannesburg, I jokingly made reference to this absurdity and asked why given the fact that he has a dual residency challenge, he failed to include this issue in his speech at the signing of the new Constitution when he spoke so eloquently about the promise of a new constitutionalism culture following the historic event.
Like Rosa Parks who was tired when she chose to sit in a bus where she was not supposed to, I simply and naively went to the office of the Registrar-General to get an identity card in the ordinary course of business on the assumption that any Zimbabwean-born person would not have to face the humiliation of applying to be Zimbabwean yet this is what I was and am required to do.
The new Constitution has already been tested by Jealousy Mawarire and the order granted by the new Constitutional Court speaks volumes about the inability of Zimbabwe to break from its past practices.
Although the issue brought before the court was about need for the President to comply with his constitutional obligations regarding the proclamation of the elections given the limited remaining shelf life of the inclusive government, the matter has been transformed into the unfinished Global Political Agreement (GPA) issues.
Prime Minister Morgan Tsvangirai, and Welshman Ncube argued that the proclamation could only be made after resolving the outstanding GPA issues and also with the consent of Sadc, the guarantors of the GPA. Mugabe has been arguing that Sadc has no jurisdiction on the matter and more significantly that he has a legal obligation to proclaim the date of the election before the end of the life of the current government.
In taking this position, Mugabe understood the limitations and danger of extending the debate to the Sadc forum and, therefore, when he was in Addis Ababa for the AU Summit, he took the opportunity to apprise the Troika of the significance of Mawarire’s application and its implications on the way forward.
Mugabe is confident that this time around he will triumph and, therefore, he would want the timing of the elections to be now rather than later.
Whether there is any causal link between Mawarire’s court application and Mugabe’s wish to take this matter outside the jurisdiction of the GPA and Sadc, will always be a matter of speculation.
What is clear is that the Mawarire application was handy and opportune for the President.
Now that the Constitutional Court has spoken in support of the relief sought by Mawarire, one would expect this first son of the new constitutional dispensation i.e., the court to also add its voice to the issue of citizenship.
It is significant that Mugabe chose to populate the old Supreme Court and seamlessly transform it into the Constitutional Court pursuant to the operation of the new constitution with such speed and the results are already showing that the courts can assist or be used in resolving purely political matters.
With respect to citizenship, Section 41 of the new Constitution provides for the establishment of a Citizenship and Immigration Board by an Act of Parliament.
This has yet to be done and yet the voter registration in terms of the new Constitution has already commenced without the necessary piece of legislation being put in place.
The fact that a question has now arisen whether in terms of the new Constitution, dual citizenship is permissible, requires an answer from the President and yet by remaining silent and vocal on the rights of Mawarire it would seem that the issue of clarifying this important matter before complying with the court order is not important.
The new Constitution provides direction on the issue of dual citizenship. In terms of Section 35, there are three classes of citizenship, i.e., birth, descent and registration.
In terms of Section 36(1), persons are Zimbabwean citizen by birth if they were born in Zimbabwe and when they were born; either their mother or their father was a Zimbabwean citizen and also if any of their grandparents was a Zimbabwean by birth or descent.
If Obama’s father was Zimbabwean, for example, he would qualify for citizenship under Section 36(2).
In terms of Section 41, the Citizenship and Immigration Board has no jurisdiction over matters relating to citizens by birth rather its mandate is to be over the affairs of citizens by registration.
In terms of Section 42(e), Parliament has jurisdiction to prohibit dual citizenship only in respect of citizens by descent or registration. This would mean that Parliament has no jurisdiction to prohibit dual citizenship in respect of citizens by birth.
If this is the case, then where does the Registrar-General derive powers to compel me to renounce South African citizenship?