Court paves way to dual citizenship

In one of the landmark court cases in Botswana, applicants succeeded in convincing the High Court that some sections in the Citizenship Act are inconsistent with the constitution

Sithabile Mathe was elated. And then she was numb for a while and could not believe the events and outcome of the Friday ruling at the Gaborone High Court. On Tuesday afternoon, she expressed what she termed as excessive joy and is pleased with the positive outcome of a lengthy process to do what is right for her two children and many other families.

Mathe is the first applicant in the Dual Citizenship Case. Her daughter, Sunniva Moratiwa Greger and her son, Jonas Nokwazi Greger are the second and third applicants. The two other applicants in the case are Edward Egner and Megan Kelosiwang. Mathe and her children were represented by Rockfall Lekgowe Law Firm Group.

Three judges: Justices Leburu, Maripe and Maphakwane were unanimous in their judgement, declaring sections 15 ( 1) to 15 ( 4) of the Citizenship Act No. 8 of 1998 that deal with dual nationality, inconsistent with and ultra vires the constitution, and subsequently ordered those sections struck down. They further said that the dual nationality provisions in the Citizenship Act enable discrimination through the differential and unfair treatment of some citizens of Botswana.

In their ruling, they also highlighted that the applicants have established both the fact that there is a provision for dual citizenship in favour of citizens married to non- citizens and that citizens in such circumstances do not have to renounce the citizenship of their spouse countries, and that the status quo amounts to discrimination on the basis of marital status.

“In the absence of any jurisdiction or any legitimate government objective and none has been presented by the respondents, I hold that Section 15 ( 4) of the Citizenship Act contravenes both Section 15 ( 3) and is accordingly struck down,” reads the judgement.

The judgement also ordered that, Section 15 ( 4) of the Citizenship is inconsistent with and ultra vires Sections 3, 13, 14, & 15 of the constitution, and accordingly struck it down. The respondents were also asked to pay the costs of these proceedings which include those of three counsels.

Speaking in an interview with this publication, Mathe said that they were now waiting to see if the Government will appeal the judgement. They have six weeks to do so.

“It will be difficult to predict if they will appeal because they might want a level of finality with the judgement,” she said.

She further said that this victory is not just a win for her family and the two other applicants, but affects other families as well. The judgement is a welcome development and relief for many families that have been hanging in limbo, and were in almost the same shoes as them.

Quizzed on how her children are handling this victory, she said that they were happy, and that right now they ( parents) were trying to gauge their views.

The journey to events of Friday started as far back as 2018 and when they were not making headway in the matter, they took the matter to court.

It was after the matter was brought to court that media coverage, brought it to the attention of many families that were also affected by this. While some families were unable to join them as applicants, some came on board as friends of the court, and wrote emails and letters in support of the case. She recalls that there was a time when she had close to 173 emails.

She also shared that in one of the social media platforms for Dual Citizenships of all Batswana, people wrote painful recounts of how this issue has affected them.

“This is not about nationality, but it has a bigger impact,” said Mathe.

Mathe is a citizen of Botswana by birth. An Architect by profession, she was joined in holy matrimony to Havard Greger Hagen, a citizen of Norway in 2002. They have been blessed with two children, Sunniva Moratiwa, born on April 9th, 2002, and a boy, Jonas Nokwazi born on December 4th, 2005. They were both born in Oslo, Norway. By virtue of Norwegian citizenship law, Moratiwa and Nokwazi are citizens of Norway by reason that they were born in Norway to a Norwegian citizen. By reason that their mother is a citizen of Botswana by birth, both children are also citizens of Botswana by descent in terms of Section 5 ( 1) of the Citizenship Act of Botswana.

On May 28, 2021, Egner and Kelosiwang made an application to be joined to the proceedings. They were seeking the same relief as the original applicants. Egner is married to a citizen of Sweden who is a permanent resident of Botswana, and has been for thirty years. They have three children, Benjamin Edward, Adina Maria and Maxine Caitlin Egner aged 20, 16 and 16 years respectively. According to Egner, Sweden allows for dual citizenship. In his submissions, he demonstrated incidences of deprivation that their children stand to suffer from the requirement to renounce. As Botswana and Sweden citizens, they are completing their education in Sweden, and will complete their tertiary studies in Europe.

“They wish to work in Botswana after graduating and gaining some work experience. If the children renounce their citizenship of Botswana, their wish to come and work here will not be guaranteed. Should they relinquish Swedish citizenship, they will forfeit the subsidized education they are currently receiving,” reads their submissions in court.

And lastly, the 4th applicant, is a female Australian citizen, and a permanent resident of Botswana. Kelosiwang is married to a citizen of Botswana, and they have two children, Thebe Connor and Naledi Anne aged 15 and 8 years respectively. The two children also currently hold dual citizenship of Botswana and Australia.

She stated that her children are the product of two cultures and should not be made to choose one over the other, as by renouncing one of their citizenship, the children will lose one of their heritages.

She further noted that by renouncing either one of their citizenship, they will require a visa, at great costs to visit Australia, and that this may cause them to miss out on important family occasions.

“I assume this is when they renounce their Australian citizenship. They will also forfeit the free public education opportunities, Medicare and social benefits that are available to Australian citizens,” read the court papers noting that the couple might also be forced to renounce their citizenships in order to follow the children. “This may cause them to relinquish their professional vocations in Botswana. This would particularly be a great sacrifice to her husband,” said the judgement.

In the meantime, in a statement, the UPR NGO Working Group, comprising of organizations that include Letloa Trust, Ditswanelo, BOCONGO, MISA Botswana) 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.

“This jurisdiction itself risks undermining the Constitution itself, which protects against discrimination on the basis of race, tribe and colour,” reads the statement.

They also urged the 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.

“We recommend that Botho and right to dignity be included in the constitution because they are the reason why there is a right to equality and or freedom from discrimination. This because even though the right to dignity has been recognized in various judgements and permeates the entire bill of right in our constitution, both Botho as our guiding principle and the right to dignity need to be expressly recognized in our constitution,” they called.

“We call upon the Government not to appeal this decision to protect the right to citizenship of all Batswana and the right to equal protection of the law,” they said.