Clauses in cit­i­zen act defy en­ti­tled rights

Business Day - - FRONT PAGE - MARTIN VAN STADEN Van Staden is a law stu­dent at the Univer­sity of Pretoria and the South­ern African re­gional di­rec­tor of African Stu­dents For Lib­erty.

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.

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