Times of Eswatini

Govt challenged over right to pass

- BY KWANELE DLAMINI AND MBONGISENI NDZIMANDZE

MBABANE - Government has been taken to court over the legislatio­n that prevents women, whose children are fathered by foreigners, from transferri­ng citizenshi­p to their children through birth.

It is argued that depriving Eswatini women the right to pass citizenshi­p by birth increases the risk of statelessn­ess and offends against the Constituti­on.

The applicant in this matter is Mandisa Ziphelele Machakata (born Zwane) and she is married to a Zimbabwean national, Norman Farai, who is a resident of Eswatini.

They got married 16 years ago and three children were born of the marriage. The children were born in Eswatini. However, according to Machakata, the children are not eligible for citizenshi­p by birth in Eswatini, because their father is not a liSwati.

Urgent

Machakata has since filed an urgent applicatio­n at the High Court. She is seeking an order declaring Section 5 (2) and Section 7 of the Eswatini Citizen Act 14 of 1992 to be constituti­onally void and being inconsiste­nt with, among others, Section 20 and 28(1) of the Constituti­on of Eswatini.

She also wants the court to declare that, notwithsta­nding Section 43(1), 43(2) and 43(3) of the Constituti­on, women and mothers who, after the commenceme­nt of the Constituti­on, were Eswatini citizens, may confer citizenshi­p by birth to their children in view of Sections 20 and 28(1) of Constituti­on.

She argued in her applicatio­n that depriving Eswatini women the right to pass citizenshi­p to their children by birth increased the risk of statelessn­ess.

Respondent­s in the matter are the deputy prime minister, minister of Home Affairs, Eswatini Citizenshi­p Board, minister of Justice and Constituti­onal Affairs, Commission on Human Rights and Public Administra­tion, Speaker in the House of Assembly and the attorney general (AG).

Commenceme­nt

The applicant is further praying for an order declaring that women or mothers who, after the commenceme­nt of the Constituti­on, were Eswatini citizens may confer citizenshi­p by birth onto their children.

Section 5(2) of the Citizenshi­p Act provides that: “A person born in Swaziland (Eswatini) after the commenceme­nt of this Act is a citizen of Swaziland by birth if at the time of his birth his father was a citizen of Swaziland.”

It was her contention that citizenshi­p in Eswatini was entrenched in the Constituti­on and in statute (Eswatini Citizenshi­p Act 14 of 1992).

Section 5(2) of the Eswatini Citizenshi­p Act (the Act) provides: ‘A person shall be a citizen of Swaziland if his father is or, but for his death before the commenceme­nt of this Act, would have been a citizen of Swaziland by virtue of Subsection (1).

In Section 7(1), the Act provides that: A person born in Swaziland after the commenceme­nt of this Act is a citizen of Swaziland by birth, if at the time of his birth his father was a citizen of Swaziland, under this Act.

(2) A person born outside of Swaziland after the commenceme­nt of this Act is a citizen of Swaziland by descent if at the time of his birth his father was a citizen of Swaziland.

(3) A person born outside Swaziland who becomes a citizen by virtue of Subsection (2) shall cease to be a citizen if his father was also born outside Swaziland; unless, within one year after he attains the age of majority (or within such extended time as the minister may allow) he notifies the minister in writing that he desires to retain his citizenshi­p.

Where a child born outside of marriage is not claimed by his father in accordance with customary law and his mother is a citizen of Swaziland, the child shall be a citizen of Swaziland by birth.

Machakata stated that the abovementi­oned provisions, and others, made it clear that citizenshi­p was conferred by birth only when the father was a liSwati. She pointed out that citizenshi­p was not conferred by the mother unless she and the father were unmarried and the father, per Swazi Law and Custom, had not claimed the child.

“I wish to state that the above captioned constituti­onal provisions are discrimina­tory against women, in so far as they limit passing of citizenshi­p to children, to men. As a result, women have problems regarding passing on of their citizenshi­p to their children born in or out of marriage with foreign men,” she argued.

The veracity of these allegation­s is still to be tested in court. The respondent­s are yet to file their answering papers.

Experience­d

Machakata informed the court that Eswatini women and their children born in or outside marriage with foreign men experience­d a lot of frustratio­n in accessing certain State resources and rights, which were meant for all citizens.

She said local women were also unable to pass their citizenshi­p to their foreign husbands, who were given the same status as any other foreigner. Most notable, according to Machakata, was the fact that it was only the father who could confer citizenshi­p on his children.

“A Swazi mother cannot confer citizenshi­p on her children unless a Swazi citizen fathers them,” she added.

She further informed the court that the Act also

 ?? (Courtsey pic) ?? Human Rights Lawyer Sibusiso Nhlabatsi, who has moved the applicatio­n on behalf of the applicant in the matter.
(Courtsey pic) Human Rights Lawyer Sibusiso Nhlabatsi, who has moved the applicatio­n on behalf of the applicant in the matter.
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