JUDITH GARFIELD TODD V REGISTRARGENERAL OF CITIZENSHIP & MINISTER

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JUDITH GARFIELD TODD V REGISTRARGENERAL OF CITIZENSHIP & MINISTER

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Judith Garfield Todd v Registrar-General of Citizenship & Minister of Home Affairs - Update #20

Judith Garfield Todd v Registrar-General of Citizenship & Minister of Home Affairs - Update #20
Citizenship Lobby Group (CLG)
May 12, 2002

 

Dear All

This update provides you with a press release from the Legal Resources Foundation regarding Judith Todd's critical court case against the Registrar General & Minister of Home Affairs. The judge ruled that people who have never taken up their entitlement to a foreign citizenship continue to be Zimbabweans.

Below are three articles from the press which provide background to the case:

Regards

Brenda Burrell

JUDITH GARFIELD TODD V REGISTRARGENERAL OF CITIZENSHIP & MINISTER

Judith Garfield Todd v Registrar-General of Citizenship & Minister of Home Affairs:
Case No. Hc 55/2002
Legal Resources Foundation
Fri, May 10, 2002

Herewith a summary of the main features in this case, on which a ruling was made by Hon. Justice Mungwira today.

Costs of the case were sponsored by the Test Case Committee in Zimbabwe which is comprised of representatives from the Legal Resources Foundation, Zimbabwe Lawyers for Human Rights, Zimbabwe Women Lawyers Association and ZimRights.

The Judgment in the above case was handed down by the Honourable Mrs Justice Mungwira on Friday 10 May 2002. The following facts were not in dispute in the case:

  1. Miss Todd, the daughter of Sir Garfield and the late Lady Todd, was born in Zimbabwe and is a citizen of Zimbabwe by birth.

  2. Miss Todd is the holder of a Zimbabwean passport which has now expired and needs to be renewed.

  3. Miss Todd is not a citizen of any other country.

The Registrar-General of Citizenship, who is also in charge of Zimbabwe Passports, refused to renew Miss Todd’s Zimbabwe passport on the basis that her parents were born in New Zealand and Miss Todd was therefore apparently either a New Zealand citizen or had an entitlement to New Zealand citizenship. As such, the Registrar-General argued, Miss Todd was required to renounce her "New Zealand citizenship" or her claim to "New Zealand citizenship".

The Citizenship of Zimbabwe Act was amended in 2001 to the effect that Zimbabwean citizens, who were also citizens of a foreign country, had to renounce their foreign citizenship by 6 January 2002, failing which they lost their Zimbabwean citizenship. The Registrar-General argued in Miss Todd’s case that as she had failed to renounce her "New Zealand citizenship" by 6 January 2002, she had automatically lost her Zimbabwean citizenship and he could not therefore renew her Zimbabwean passport.

The Court did not agree with the Registrar-General’s argument and found that the amendment to the Citizenship Act only applied to persons who were citizens of Zimbabwe and also citizens of a foreign country. It did not apply to persons who simply had a claim or entitlement to a foreign citizenship which they had never exercised.

The learned Judge quoted, with approval, from an earlier judgment by the Honourable Mr Justice Adam which stated that:

"The First Respondent (that is the Registrar-General) if he has been demanding from Zimbabwe born citizens, one or both of whose parents were born in a foreign country that they renounce their foreign citizenship, then he is flagrantly acting ultra vires section 3(2) of the Citizenship of Zimbabwe Act. His conduct would certainly be unlawful. The First Respondent, a mere public functionary, seems to have arrogantly and unashamedly arrogated to himself the functions of the legislation and the powers of the judiciary. Section 21 of the Citizenship of Zimbabwe Act provides that the use of a current Zimbabwean passport or a current foreign passport contrary to its provisions is an offence. It is for the police and the Attorney-General to determine whether or not a person has committed an offence in terms of section 21. The attitude of the First Respondent shows that he has usurped those functions and that he regards it as being his responsibility, since he has taken it upon himself to require Zimbabwean-born citizens of foreign born parents to renounce their foreign citizenship, as if they would have been committing an offence under section 21. In his capacity as Registrar-General, it is not his responsibility to grant citizenship under the Citizenship of Zimbabwe Act. That Act falls under the administration of the Minister of Justice, Legal and Parliamentary Affairs."

Accordingly, the Honourable Mrs Justice Mungwira found that Miss Todd was still a Zimbabwe citizen and therefore ordered the Registrar-General of Citizenship to renew her Zimbabwe passport within 14 days of the submission of the necessary application for such renewal.



Zim-born citizens inalienable
From News24 (SA)
May 10, 2002

Harare - A High Court judge ruled on Friday that the government cannot strip citizenship from people born in Zimbabwe, and ordered the state to renew the passport of rights activist Judith Todd. "According to the papers before me, I find that Judith Todd is a citizen of Zimbabwe. I order the registrar general to renew the applicant's passport within 14 days" of her asking for a new one, Justice Sandra Mungwira said. The judge castigated registrar general Tobaiwa Mudede as having "arrogantly and unashamedly" carried out duties that belong to the police and attorney-general. "The attitude of the registrar-general is that he has taken it upon himself to grant citizenship under the Citizenship of Zimbabwe Act, which is the attorney-general's and police's job," Mungwira said. Under the citizenship act, a person born in Zimbabwe becomes a citizen by birth and "that right cannot be renounced", Mungwira said.

In March 2001, government passed a law that required anyone wishing to retain Zimbabwean citizenship to renounce any right to foreign citizenship - even if they had never held a foreign passport. The law mainly targeted an estimated 30 000 white Zimbabweans who were entitled to a foreign passport, and also tens of thousands of black workers whose parents or grandparents had immigrated from neighbouring nations. Government critics had feared the law would bar people with foreign-sounding surnames, as well as the small white minority from voting because they had not renounced their entitlement to foreign citizenship. The legislation was viewed as part of a wide-ranging strategy to ensure President Robert Mugabe's re-election in March. Todd is a rights activist who supported Zimbabwe's liberation struggle but who now opposes Mugabe, accusing his government of widespread human rights abuses. Both Todd's parents were born in New Zealand, but she was born in Zimbabwe, when it was still the British colony of Rhodesia. Her father, Garfield Todd, is a former prime minister of Rhodesia. She has never sought a New Zealand passport.



Court deals blow to Mugabe's citizenship law
IOL
May 07, 2002

Harare - Zimbabwe's government conceded on Tuesday in a high court that it cannot strip rights activist Judith Todd of her Zimbabwean citizenship, even if she could qualify for a passport from another country.

"I concede the heads of argument presented by the applicant, so I have no further submissions to make," Nelson Mutsonziwa from the attorney-general's office told the court.

Zimbabwe's government had refused to renew Todd's passport, saying that she was a citizen of New Zealand because her parents were born there.

Government argued that a 1943 New Zealand law gave citizenship to anyone whose parents were born in that country.

Todd's lawyer, Bryant Elliot, said Zimbabwean law required an expert from New Zealand be present in court, if that nation's laws were to be considered.

He also argued that Zimbabwean law automatically gives citizenship to anyone born here.
Judge Sandra Mungwira is expected to hand down her judgment on Wednesday.

Both Todd's parents were born in New Zealand, but she was born in Zimbabwe, when it was the British colony of Rhodesia. Her father, Garfield Todd, is a former prime minister of Rhodesia.
She has never sought a New Zealand passport.

Judith Todd is an activist who supported Zimbabwe's liberation struggle but who now opposes President Robert Mugabe, accusing his government of widespread human rights abuses.

Todd's case could have wide-ranging implications for all Zimbabweans of foreign descent.
In March last year a law was passed that required anyone wishing to retain Zimbabwean citizenship to renounce any right to foreign citizenship – even if they had never held a foreign passport.

A high court judge had ruled in February that people cannot give up a right, but only a citizenship they actually hold.
The law targeted the estimated 30 000 white Zimbabweans who were entitled to a foreign passport and tens of thousands of blacks whose parents or grandparents had immigrated from neighbouring nations.

Government critics had feared the law would bar people with foreign-sounding surnames as well as the small white minority from voting because they had not renounced their entitlement to foreign citizenship.

The legislation was viewed as part of a wide-ranging strategy to ensure Mugabe's re-election in the elections. - Sapa-AFP



Landmark citizenship judgement
ZWNEWS
May 09, 2002

Veteran human rights activist Judy Todd, 57, has won a major test case in the Zimbabwe High Court blocking attempts by Registrar General Tobaiwa Mudede to strip her of Zimbabwean nationality because he said she had not renounced a possible claim to New Zealand citizenship. Her father, 1953-58 Prime Minister Sir Garfield Todd, 92, came to former Southern Rhodesia more than 60 years ago and was recently struck off the voters' roll by Mudede because he was born in Invercargill, South Island. The judgment could have major implications for thousands of other Zimbabweans facing citizenship problems as a result of recent legislation, including many in rural areas of Malawian or Mozambican descent. Parliament last year empowered Home Affairs Minister John Nkomo to revoke the citizenship of any Zimbabwean who had not by January 6, 2002, renounced dual nationality in terms of the laws of the foreign country to whose citizenship they might be entitled. "I am delighted not only for myself but for all those hundreds of thousands of farm workers," Todd said.

The landmark judgment applies, for the time being, only to Zimbabwean citizens born in the country. Costs of her case were sponsored by Zimbabwe's Legal Resources Foundation and five other human rights groups. However, legal sources here warned that President Robert Mugabe's government may simply once more ignore the courts, either by introducing fresh legislation or invoking the Presidential Temporary Powers Act. But, the sources said, Zimbabweans who spent up to ZWD13 000 renouncing potential claims to, for example, British, South African or Zambian citizenship by birth or descent have obtained proof of renunciation that may still be vital to retaining their Zimbabwean passports and votes. Justice Sandra Mungwira said she would sign orders on Wednesday requiring Mudede to issue Todd with a new Zimbabwean passport within 14 days of making application, and to continue to recognise her in all other respects as a citizen of Zimbabwe.

Arguing the case on Tuesday, Todd’s lawyer, Bryant Elliot, said Mudede had simply made up requirements that attempted to force Zimbabweans who had never claimed a second citizenship to obtain proof from the foreign country involved that they had renounced it. Mudede contested Todd’s challenge, but the Home Affairs Minister who is responsible for moves to deprive Zimbabweans of citizenship, made no response, and consequently the state case collapsed. Zimbabwe-born Todd’s lawyer argued that last year’s legislation did not apply to her as she had never attempted to acquire a foreign citizenship. He added that the Registrar General was not entitled to deprive Zimbabwe-born nationals of citizenship because he suspected they might have some claim through their parents to dual nationality - even though they had never asserted the claim. He said the renunciation form that Mudede had printed, without legal authority, forced a Zimbabwean suspected of having a claim to a foreign citizenship to assert that he or she did in practice hold the foreign citizenship.

Todd had been unable to sign such a declaration renouncing a New Zealand citizenship she had never possessed. Todd did not know whether New Zealand would refuse her citizenship if she applied. However, said legal sources, if she had applied – even as a mere exploratory exercise - this would be taken in terms of the Zimbabwe legislation as automatic renunciation of her Zimbabwean citizenship. During the March presidential elections, thousands of white Zimbabweans were turned away from polling booths because officials found their names on a "Removed Citizens List" of those suspected of being eligible for a foreign citizenship. Mudede had refused to give copies of the list to opposition parties or human rights groups so those named could challenge their disenfranchisement.



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