The applicant, a Ghanaian national, was arrested on 20 August 2016 for allegedly contravening section 29(1)(a) read with section 29(2)(a) of the Immigration Act by continuously residing in Zimbabwe without a permit. He was tried and acquitted by the Magistrates' Court. The trial magistrate held that the applicant was a Zimbabwean citizen by virtue of possessing a national identity document. Despite his acquittal, the applicant was re-arrested and detained at Harare Remand Prison awaiting deportation. The applicant came to Zimbabwe in 2001 as a dependant of his father who worked for the World Health Organisation on diplomatic status. He remained in Zimbabwe when his parents left for Congo in 2005. He was issued a student permit from 2005 to 2007, which he never renewed. On 3 July 2008, he married a Zimbabwean citizen. He held a Ghanaian passport throughout and had been residing in Zimbabwe without a valid permit since 2007.
The urgent application for a writ of habeas corpus was dismissed.
The binding legal principles established are: (1) The High Court has exclusive original jurisdiction to determine citizenship rights and habeas corpus applications under section 50(7) of the Constitution and section 14 of the High Court Act - the Magistrates' Court lacks such jurisdiction. (2) Citizenship by registration under section 38 of the Constitution is not automatic and requires a formal application to be made to the Registrar. (3) Possession of a national identity document does not, by itself, confer citizenship status or exempt a person from immigration permit requirements. (4) For purposes of section 38(2) of the Constitution, the requirement of being 'continuously and lawfully resident in Zimbabwe for at least ten years' excludes periods spent on diplomatic status and periods of unlawful residence without valid permits. (5) Marriage to a Zimbabwean citizen does not automatically exempt a foreign national from the requirement to hold a valid permit under the Immigration Act.
The court noted that despite the spirited and admirably strenuous attempts by the applicant's counsel to convince the court that the applicant had a prima facie right to habeas corpus relief, the necessary case had not been made out. The judgment also implicitly recognizes that the magistrate's pronouncement on citizenship, while made without jurisdiction, may have been well-intentioned but had 'the undramatic effect of being just a mere observation on the part of the trial court.'
This case clarifies important principles regarding citizenship by registration under the Zimbabwean Constitution and the jurisdictional boundaries between the Magistrates' Court and the High Court. It establishes that: (1) only the High Court has jurisdiction to determine citizenship rights and habeas corpus applications; (2) possession of a national identity document does not automatically confer citizenship; (3) citizenship by registration under section 38 of the Constitution requires a formal application process and is not automatic; (4) the requirement for 'continuous and lawful' residence under section 38(2) excludes periods of diplomatic status and periods of unlawful residence; and (5) marriage to a Zimbabwean citizen does not exempt a foreign national from immigration permit requirements.