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South African citizenship and the 2010 Citizenship Amendment Bill

28th July 2010

By: Chris Watters

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The 2010 SA Citizenship Amendment Bill has been tabled in Parliament and the public have been invited to comment on the proposals put forward by the Department of Home Affairs. That said, a number of aspects of both this Bill and the current Citizenship Act, warrant comment and closer consideration.

 

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A significant misnomer in the current Citizenship Act is the concept of ‘citizenship by birth.' The current Act does provide for persons to obtain South African citizenship by virtue of their birth in the Republic. However, as many persons have found over the years, being born in the Republic of itself does not create any citizenship rights or expectations for the person concerned. This is to be contrasted with the law in many countries where citizenship is acquired just because you were born in that country - no matter what the residence status of your parents might be. In South Africa, the current Act provides that you become a citizen by birth if - and only if - one of your parents is a South African citizen and the other is a permanent resident as at the date of your birth. So in fact, what matters is not whether you were born in South Africa but what residence status your parents had.

 

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But this may be about to change - albeit grudgingly, it would appear. The new Bill proposes that any person born in South Africa to parents who have been admitted into the Republic, qualifies to be a South African citizen by birth if he or she has lived in the country from birth until becoming a major - which is defined to be at age 18. The Department must nevertheless be applauded for this brave gesture amidst the angst of xenophobia that stalks the land. However in what might be a sop to the xenophobes, the use of the term "admitted" suggests that this measure is intended to benefit only those persons whose parents entered South Africa lawfully or who have had their residence duly regularized. Talk about ‘the sins of the father' being visited upon the next generation - especially if that unlawful status only comes to light after an 18-year wait!

 

Unfortunately the Department has declined to address or clarify the issue of dual nationality and the arbitrary deprivation of South Africans of their citizenship, that continues to occur. Section 20 of the Bill of Rights provides somewhat tersely that "no-one may be deprived of their citizenship." Of course as many South Africans have found out, were one to acquire dual nationality, the chances were high that in doing so, you simultaneously lost your SA citizenship. And tragically, as still happens regularly, the first you know about this is when you apply for a new SA passport and Home Affairs or Embassy staff - and sometimes with less than ill-disguised glee - seize your passport and/or ID documents and cancel them! This can be seriously stressful if you are in a foreign country and are trying to travel back home.

 

This apparently arbitrary deprivation of your citizenship is justified on the basis that this is not the action of the Department or Minister. Rather, you alone have been the author of your own misfortune. You have deprived yourself of your citizenship by acquiring the citizenship of another country by some "formal and voluntary act" without first getting Ministerial approval to retain your SA citizenship as required by section 6 of the Citizenship Act. A problem with this interpretation is that Parliament also has to make laws that are consistent with the Constitution. The legislation cannot set the trap, as it were, and then have everyone sit back with folded arms and blame the unwitting and soon-to-be ex-citizen.

 

In what must be a considerable irony, the 2005 Amendment to the Citizenship Act removed the Minister's power to terminate citizenship - which under PAJA would have required a prior hearing and under the Citizenship Act there was an appeal against a negative decision - and left instead the automatic deprivation measure.

 

This does also raise the sometimes-thorny political issue of what exactly the problem is with having dual nationality if the law really does not have a problem with it. The fact is that in South Africa multiple citizenship is permitted - albeit under licence. The requirements to get that consent from Home Affairs are not stringent. And this country has not come to a crashing halt as a result of South Africans having dual nationality - and some of those South Africans include some people who were in exile. Many countries in the world allow dual nationality - roughly, about as many permit dual citizenship as prohibit it. The standard challenge to allowing dual nationality tends to be the rather narrow insistence on demanding total allegiance to the flag, as it were, or asking how one can love two countries at the same time - which always seems to hint at an inferiority complex. There is however no common profile of countries that allow it as opposed to those prohibiting it. For example, Germany and Zimbabwe strictly disallow dual nationality whilst Brazil and Ireland permit it.

 

Some countries really do not care how many other countries who acquire citizenship of; it does not excuse you from paying any taxes you owe or from facing criminal prosecution of you break the law. Other countries see dual nationality as a way of allowing their citizens to compete globally, of encouraging trade and tourism and retaining much-needed skills by not forcing people to make choices of residence.

 

This Amendment Bill takes a bold step but it is hoped that some of the thornier issues around citizenship, still need to be dealt with by Parliament.

 

 

 

 

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