Clauses in citizen act defy entitled rights

THE provisions in the Citizenship Act are a travesty of our constitutional order and must be scrapped. They do not pass muster. Former Constitutional Court Judge Kate O’Regan, in Richter vs Minister of Home Affairs, said that our ability to live, study and work in countries other than our own enriches our society when we return, and “(enriches), too, a sense of a shared global citizenship”. Citizenship not only declares to the world that we are South African. It is also our access card to South African law and the Constitution. It binds us to SA, and not to the government of the day.

It is, therefore, imperative that our citizenship is protected from any oppressive meddling by the government, and our Constitution does this quite well. Section 20 is very short and to the point. It provides that “no citizen may be deprived of citizenship”. Section 21 further states that citizens may leave and return to SA, and may have a passport.

The only possible restriction to these complementary rights is contained in section 36, which lists the strict criteria to which the government must adhere before it can deprive someone of their citizenship and the entitlements thereof. For example, any limitation of our rights must be compatible with an “open” and “democratic” society.

It is perplexing, then, to read in section 6 of the Citizenship Act that if a South African citizen is seeking a dual nationality, they must apply for permission from the minister of home affairs to retain their South African citizenship before their second nationality is granted. The minister may grant or reject the application “if he or she deems it fit”.

Further, section 8 provides that the minister may “deprive” a South African who is also the citizen of another nation of their South African citizenship if that person has been imprisoned in the other nation for more than one year, or, simply, if the minister believes it is not in the “public interest” for that person to have South African citizenship.

Apart from such subjective and personal discretion being entirely anathema to the rule of law enshrined in our Constitution, surely the legislative drafters within the Department of Home Affairs must be directed — once again — to read the single sentence constituting the whole of section 20 of the Constitution: “No citizen may be deprived of citizenship.” When someone loses their citizenship, they lose their right to vote. At a recent event hosted by the Friedrich Naumann Foundation, retired Constitutional Court Judge Johann Kriegler said the right to vote is a semireligious privilege South Africans possess that affirms their fundamental human dignity.

During apartheid, black South Africans were forcefully “denationalised” and had useless “homeland” citizenship given to them. For the longest time, only whites could vote (eventually, Indians and coloureds gained a limited franchise). Section 20 of the Constitution sought to remedy this and ensure that it does not ever happen again.

We have a say in how our country is governed, and this is entwined with our human dignity. It is also protected by the Constitution, in my view, which strongly implies that the government of the day cannot simply revoke citizenship because a minister might feel like it.

Sections 6 and 8 of the Citizenship Act empower the minister to reject an application for dual nationality, or to revoke someone’s South African citizenship if they obtained a second nationality, simply because “he or she sees fit”. What constitutes “the public interest” is too complex a matter for any minister to decide alone, especially when it concerns revoking a South African’s citizenship. Neither of these sections is compatible with the “open” and “democratic” requirement listed in section 36 of the Constitution.

According to News24, between 2011 and last year more than 2,000 South Africans lost their citizenship. These provisions must be repealed.