IrtHriGHt CitiœEnsHip issuE DisCriinAtor› Ǧ
MBABANE - Mandisa Ziphelele Machakata says the issue of birthright citizenship is discriminatory against women and children.
She said this was perpetuated at the face of constitutional provisions, which guaranteed and protected all citizens against any form of discrimination.
“It is humbly asserted that the provisions are discriminatory, not only against women but also against children born to such women, who may have the right to have recognised ties to their mother on par with other children.
“This provision renders these children stateless; yet they have a right to acquire citizenship. It is in the best interest of children who may find themselves in such a situation for the challenged provisions of the act to be declared unconstitutional and for the court to read in the word ‘mother’ into the Constitution,” she argued.
The mother of three informed the court that the Constitution also required that any harmonisation must be in favour of equality.
Fundamental
“Concluding its chapter on fundamental rights and freedoms, the Constitution makes clear tha; ‘Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms: (a) life, equality before the law, and security of person.’ Section 38(a) of the Constitution explicitly provides that the right to equality cannot be derogated from,” she argued.
Machakata submitted that equality was also a founding principle and fundamental tenet of the Constitution, permeating provisions in nearly every chapter and requiring harmonisation in its favour.
Under Section 14 (1) (a) of the Constitution, fundamental rights and freedoms are guaranteed, she said, and that Section 20 guaranteed equality before the law.
“The citizenship issue in Eswatini also violates the rights of children as protected under Section 29 of the Constitution. Section 29 states that children have ‘the right to be properly cared for and brought up by (their) parents’ and guarantees that ‘children, whether born in or out of wedlock shall enjoy the same protection and rights.
“Eswatini’s birthright citizenship provisions, however, provide a path for maternal birthright citizenship for children born out of wedlock, but not for those born in wedlock. What is more is that Section 5 of the Children Protection and Welfare Act No. 6 of 2012 gives every child the right to a name and nationality,” said the applicant.
Citizenship
She averred that depriving Eswatini women the right to pass citizenship by birth increased the risk of statelessness, which Eswatini sought to guard against. The Citizenship Board, according to Machakata, was constitutionally obligated, in terms of Section 49 (5) of the Constitution, to endeavour, when depriving a person of their citizenship, ‘not to render that person stateless’.
She said denying Eswatini women the right to pass citizenship by birth effectively denied citizenship to their children without consideration as to whether the child would