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Civic groups welcome seminal citizenship judgment

High Court

Civil groups have applauded another groundbreaking citizenship judgment in which a bench of three High Court Judges declared some sections of the Citizenship Act inconsistent with the Constitution.    

This was in the case involving Sithabile Mathe, Jonas Mathe, Sunniva Mathe, Edward Egner and Megan Kelosiwang had challenged the legality of forcing their children to choose between the citizenship of either parent before they are adults. In an unanimous judgment, delivered by Justices Professor Bugalo Maripe, Michael Leburu and Ookeditse Maphakwane declared sections 15 (1) and 15 (4) of the Citizenship Act No. 8 of 1998 which deal with dual nationality, inconsistent with and ultra vires the Constitution; and ordered both Sections struck down.

This week the Universal Periodic Review Non-Governmental Organisations (UPR NGO) Working Group congratulated the High Court “on its recent re-affirmation of its protection of fundamental rights and freedoms; protection of freedom of assembly and association; protection of freedom of movement; and protection from discrimination on the grounds of place of origin, race, tribe, and colour – as enshrined in our Constitution”.

“The order of the High Court protects both the right to citizenship and equal protection of the law of those children born to a Botswana citizen and a non-Botswana citizen. We, the UPR NGO Working Group noted with concern that the Attorney General urged the court not to issue an order which would be ‘inimical to the spirit of having ‘pure’ citizens as Head of State and Vice President’. The High Court also noted that the Attorney General had ‘… implicitly appealed to notions of ‘purity of ethnicity’ in relation to ascendance to ‘the high political office of President and Vice President’,” the working group noted.

It continued to say this justification itself risks undermining the Constitution itself, which protects against discrimination on the basis of race, tribe and colour. “We urge our government to ensure that the spirit of non-racism – a hallmark of Botswana’s multilateralism and historic opposition to apartheid and racism – be protected both in the Constitutional protection against discrimination; and in government policies and practices.”

The UPR NGO Working Group comprises the Botswana Council of Non-Governmental Organisations (BOCONGO), DITSHWANELO – The Botswana Centre for Human Rights, Rainbow Identity Association (RIA), the Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo), the Media Institute of Southern Africa (MISA) and Letloa Trust.

In his introductory remarks, Justice Maripe noted that the essence of this matter has been described by lead counsel for the applicants, Gosego Lekgowe in his opening address as the “second constitutional attack on the Citizenship Act since the case of Attorney General versus Unity Dow”. The much talked about Dow case concerned a challenge on the constitutionality of Sections 4 and 5 of Citizenship Act as it stood then, on the basis that they constituted discrimination on the basis of sex and therefore in contravention of equality provisions of the Constitution.

“At the heart of this dispute is the issue of citizenship. The applicants are aggrieved that their children will at some point be required by law to denounce, thus lose their citizenship of either Botswana or the other countries of which they are citizens. The importance of citizenship, at a personal level, need not be over-emphasized. However, I shall, restate it here in order to bring the context around which the dispute arises and to put it in its proper perspective, and to lay the basis for determination of the issues that arise in this case to the extent that it is alleged that the requirement for renunciation constitutes a deprivation on the part of the children affected,” Justice Maripe said.

The learned Judge said in wider scheme of things, the importance of one’s citizenship to their chosen country cannot be overemphasized. Choosing one country over others as the one to which they owe allegiance is a significant decision, for it imports notions of an exclusive symbiotic relationship between the individual and the State in terms of the rights and obligations that flow between the two.

To sever this bond, he said, must perforce bring some feeling of deprivation on the part of those affected, especially on the part of the individual, for the State, as physical and legal construct, without personal feelings associated with those of a human being, such as emotional, familial and other notions of personal attachment, would not be similarly affected.

“Thus the requirement of renunciation would, on a general scale, affect the individual more than it affects the State.” On the other hand the Attorney General who was the respondent in the matter denied that there is any violation of the applicants’ right as alleged. He argued that the question of citizenship is a matter solely within the preserve of a State in the exercise of its sovereign powers. “In the exercise thereof, he argues a State is at large to determine who its citizens should be, and that there is nothing untoward about Citizenship Act.”

The counsel for the respondent also contended that in addition that should applicants’ children renounce Botswana citizenship, contrary to the sense of deprivation that the applicants alleged they will suffer, the children will be eligible to acquire the Botswana Blue Card (BBC) which confers upon the holder certain privileges that non-citizens do not enjoy. He also questioned the applicants’ motives and submitted that the application is in pursuit of self-interest over those of the country as a whole.

He argued that in fact the law as it stands places the applicants’ children in a position of advantage and privilege over other children who have no choice but to comply with law as is. “In extrapolation, it is said that the applicants’ children have a choice to make, and that choice is said to be an advantage, any such law that presents that choice cannot be said to be discriminatory,” Justice Maripe said. The Judge took the view that familial bond existing between parent and children does not change by reason only that the child has matured into an adult. He said association between family members persists notwithstanding that the children would have turned 21 years of age when restrictions begin to apply.

He added that a determination of Mathe’s children’s citizenship status on renunciation will negatively affect the children’s freedom of movement and association with either their father or mother, owing to immigration restrictions either into Norway or Botswana as the case may be, depending on the election the elections will ultimately make.  The position taken, by the respondent, the Judge said, underplayed the deprivation that is occasioned by the requirement to renounce. In conclusion, the three Judges unanimously ruled in favour of the applicants.

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