Tlhoro v Minister of Home Affairs (PA 159 of 2000) [2008] NAHC 65 (02 July 2008);
POPPY ELIZABETH TLHORO v MINISTER OF HOME AFFAIRS
2008/07/02
Maritz, J et Mainga, J
CONSTITUTIONAL LAW
Citizenship – naturalisation – Article 4(5)(c) – meaning of “security” – whether Parliament may require renunciation of foreign citizenship and allegiance as condition to conferring Namibian citizenship by naturalisation
Citizenship – meaning of - naturalisation – importance and implications
Citizenship – constitutional citizenship-scheme - purpose, tenor and spirit underlying scheme – powers of Parliament to make laws regulating acquisition of citizenship
Citizenship – dual citizenship contemplated by constitution – ambit of prohibition in s.24 of Namibian Citizenship Act, No. 14 of 1990
Citizenship - Namibian Citizenship Act, No. 14 of 1990 – constitutionality of sections 5(1)(g), 24 and oath of allegiance
Case No. (P) A159/2000
IN THE HIGH COURT OF NAMIBIA
In the matter between:
POPPY ELIZABETH TLHORO
APPLICANT
versus
MINISTER OF HOME AFFAIRS
RESPONDENT
CORAM:
MARITZ, J. et MAINGA , J.
Heard on:
2000-08-25
Delivered on:
2008-07-02
_____________________________________________________________________
REASONS FOR JUDGEMENT
The applicant, already a citizen of South Africa, in addition sought to obtain citizenship of Namibia by naturalisation. The applicant acquired her South African citizenship by birth. She entered the then South West Africa on 2 February 1981. She has been resident in the territory – which became the Republic of Namibia on the date of Independence – ever since. It is not in issue that she entered the then South West Africa lawfully and that she subsequently acquired lawful “domicile” in the territory. Her status changed to that of an “alien” as defined in the Aliens Act, 1937 when s. 29 of the Namibian Citizenship Act, No. 14 of 1990 (hereinafter referred to as the “Act”) substituted for “South African citizen” the expression “Namibian citizen” shortly after Independence. The change did not affect the legality of her continued residence in the country. She was exempted by s. 12(1)(a) of the Aliens Act from the statutory requirements relating to temporary or permanent residence permits otherwise required by s. 2 of that Act of aliens who take up residence in the country (c.f. Swart v Minister of Home Affairs, Namibia 1997 NR 268 (HC) at 278A-B.). The applicant’s difficulty, therefore, does not so much relate to the legality of her residency, but manifested itself when, after a sojourn in South Africa, she presented herself at a port of entry on the international border between Namibia and South Africa to re-enter Namibia: being an alien, the Immigration Officer was understandably reluctant to allow her re-entry without a temporary or permanent residence permit. As it happened, the officer eventually relented but the experience left her shaken and apprehensive that she might be denied re-entry in future by an immigration officer with lesser understanding or appreciation of her legal rights to residency. She was also concerned that without any official documentation recognizing her right to residence in Namibia, she would be at risk of being arrested as a suspected prohibited immigrant under the Immigration Control Act, 1993. The thought that she could obtain her release in due course by proving her right to residence in Namibia was, understandably, of cold comfort. Although she could have addressed these concerns by applying for a permanent residence permit, she decided to rather apply for Namibian citizenship by naturalisation. Her application was approved - not without considerable difficulty and numerous threats of legal action, I should add. The approval was subject to sections 5(1)(g) and 26 of the Act, i.e. that she should renounce her South African citizenship when she takes up Namibian citizenship and that she would be required to take an oath of allegiance to the Republic of Namibia before a certificate of naturalisation would be issued to her in terms of s. 5(6) of the Act. The oath (or solemn affirmation), which is prescribed in the First Schedule to the Act, requires an unreserved renunciation of all allegiance and fidelity to any foreign country or Head of State. The applicant was not willing to renounce her South African citizenship. She intended to return to and take up residence in her country of birth at some time in the future and was reluctant to do anything which could compromise her South African citizenship. She wanted to retain the security that she could return to her country of birth as of right. For the time being, however, she planned to reside and work in Namibia. She maintains that the provisions of the Act requiring renunciation of her South African citizenship are unconstitutional and, therefore, moved the following relief (as amended) against the Minister of Home Affairs: 5. The respondent opposed the application and, in an answering affidavit filed on his behalf by Elizabeth Negumbo, the Chief of Immigration in the Ministry of Home Affairs, set forth the grounds of such opposition and a brief synopsis of the historical background to the formulation of the statutory requirements for the acquisition of Namibian citizenship by naturalisation. The applicant sought to strike some of those allegations and, when the matter was called, her case was argued by Mr Light and that of the respondent by Ms Erenstein ya Toivo. The Court dismissed the application immediately after the hearing but declined to make an order of costs. What follows are the reasons for that order, which I should add, have also been requested by the applicant. The principal issue, central to the dispute between the litigants, is whether it is constitutionally permissible for Parliament to oblige an alien who has applied for Namibian citizenship by naturalisation to renounce his or her citizenship of and allegiance and fidelity to any foreign country in order to acquire Namibian citizenship. Ancillary to that issue is the legitimacy of applicant’s assertion that she is entitled to dual citizenship, i.e. Namibian citizenship by naturalisation and South African Citizenship by birth. The provisions of the Act which require renunciation of foreign citizenship - either expressly or by necessary implication – are those referred to in the Notice of Motion and it will be helpful in the analysis which follows if I were to quote them at the outset: Section 5 of the Act, insofar as it bears relevance to this application, reads: The constitutional measure against which the constitutionality of these provisions falls to be determined, according to Mr Light who appeared for the applicant, is that of Article 4(5) of the Namibian Constitution. It reads: The applicant contends that the statutory requirements relating to the renunciation of citizenship of any foreign country before Namibian citizenship by naturalisation may be granted do not fall within the authorised constitutional criteria of “health, morality, security or legality of residence”. For the renunciation requirements to be valid and intra vires Parliament’s powers under the Constitution, they must pertain to those criteria, she submits. The only two criteria which may conceivably relate to the renunciation requirements, her counsel contends, are those of “morality” and “security” and neither of them can authorise legislation requiring renunciation of foreign citizenship. Her counsel argues that persons are not more or less moral if they renounce or do not renounce their citizenship and do not pose any greater or lesser danger to the community or the security of the State in doing or not doing so. The applicant further contends with reference to other provisions of the Constitution that dual nationality is allowed under the Constitution and that any law purporting to prohibit it is unconstitutional. Finally, it is submitted that Parliament’s powers to make further laws regulating the acquisition or loss of citizenship as contemplated by Article 4(9) of the Constitution are also limited: such laws may not be “inconsistent with (the) Constitution”. Inasmuch as sections 5(1)(g) and 26 and part of the oath of allegiance in Schedule 1 of the Act are inconsistent with the Constitution, the general powers of Parliament under Article 4(9) cannot avail the Respondent. The respondent is dismissive of these contentions. Ms Erenstein ya Toivo submits on his behalf that the statutory renunciation provisions of the Act are not inconsistent with the Constitution. She contends that, unable to demonstrate that they are in conflict with any constitutional right, criteria or requirement, the applicant’s counsel “divines” an inconsistency on the basis of the “expressio unius”-maxim by arguing that the renunciation requirement does not fit into the categories of “criteria pertaining to health, morality, security or legality of residence as may be prescribed by law” within the meaning of Article 4(5) of the Constitution and, therefore, that it is ultra vires Parliament’s powers under Article 4(9) of the Constitution. This argument, the respondent submits, is a strained and austerely legalistic interpretation that would purport to create conflict by implication only. The interpretation advanced by the applicant, so the respondent contends, ignores the purpose, tenor and spirit of the constitutional citizenship scheme, the plain meaning of Articles 4(5) and 4(9) of the Constitution and the presumption of constitutionality. In my view, a brief assessment of the purpose, tenor and spirit underlying the constitutional citizenship-scheme is a useful and logical starting point from which to approach the constitutionality of the statutory renunciation requirements in the Act and Schedule thereto. The purpose, tenor and spirit of the constitutional citizenship scheme constitute the context within which Articles 4(5) and 4(9) of the Constitution must be interpreted and is an important aid in ascertaining the meaning and import of the words used therein. Parliament’s legislative powers to regulate the acquisition of Namibian citizenship by naturalization must be exercised within the four corners of the Constitution generally and the meaning of those provisions in particular. The constitutional template of values and words is, after all, the evolving mould against which Parliament’s legislative designs are judicially reviewed when they are attacked as overly broad or too restrictive – whenever permissible, allowing for a margin of legislative appreciation in the assessment of society’s values and mindful that Parliament has been constitutionally clothed with plenary powers and that it has been democratically elected to design by statute what is best suited to society’s immediate or future needs. One of the unique, characterising features of our Constitution is the incorporation of a substantial citizenship scheme not normally present in others. Who are and who may become citizens of a particular State are questions normally left for determination by Parliament in other sovereign jurisdictions. The reason behind the inclusion of the Namibian citizenship scheme in our Constitution lies in the long and painful history of our nation’s birth. During the decades preceding Independence many Namibians, unable to bear or unwilling to tolerate the iniquities and injustices of colonialism, racism and apartheid, left the country – some fleeing to escape extermination by war upon them; others emigrating to find dignity, life and refuge elsewhere; many to take up the struggle against those injustices … but most of those who had left, were determined that they and their descendants would return one day when the country of their birth has been liberated from colonial rule. During the years of exile, whether by necessity or choice, many expatriates married – not always with those who shared their origin or culture - and founded first or second generation families in many countries all over the world where they had been given sanctuary. Others, again, immigrated or migrated to the territory during German and South African rule and many remained and adopted the country as home for them and their families – some for a number of generations before Independence. There were also those who came to the territory as part of the German and South African security forces to enforce and maintain colonial rule. Not all of them had left before Independence. Soon after the implementation of the United Nations Security Council Resolution 435 of 1978 on 1 April 1989 (referred to in Article 146(2)(d) of the Constitution), many thousands of those who had left Namibia during the struggle for Independence returned to participate in the political process leading up to the Independence of Namibia through free and fair elections under the supervision and control of the United Nations. Having sacrificed so much during exile, it was important for them and those who had suffered in the war of liberation to take up their rightful places in a free, unified and sovereign Namibia and to ensure citizenship for them, their families and their descendants. So too, it must have been for the other inhabitants of the country – whatever their origins. Hence, it was an historical imperative for the Constitutional Assembly who had to draft and adopt the Namibian Constitution to define who would become citizens or qualify for citizenship of the Namibian nation upon Independence and to outline who would be citizens or qualify for citizenship thereafter. These considerations were also alluded to in Swart v Minister of Home Affairs, Namibia, supra, at 274: The principal purpose of a substantially constitutional – as opposed to a purely legislative – citizenship scheme was to guarantee citizenship as of right or the right to acquire citizenship for certain categories of persons upon and after Independence whilst, at the same time, allowing in broader terms the acquisition of citizenship by other categories of persons to be regulated wholly or partly by Parliament in future. The tenor in which the Constitution frames the citizenship scheme reflects an inverted relationship between the intimacy of a person’s bond with Namibia and the powers entrusted to Parliament to regulate the acquisition or loss of citizenship. But for a number of narrowly defined exceptions, Article 4(1) of the Namibian Constitution recognises the automatic acquisition of Namibian citizenship as of right by the mere incidence of birth in the country (
“1.
Setting aside section 5(1)(g) of the Namibian Citizenship Act, Act No 14 of 1990 ... as invalid and contrary to the Namibian Constitution.
1A.
Declaring the phrase ‘I unreservedly renounce all allegiance and fidelity to any foreign country or the Head of State of whom I have heretofore been a citizen, and that’ in the First Schedule of the Namibian Citizenship Act, as invalid and contrary to the Namibian Constitution.
Setting aside section 26 of the Namibian Citizenship Act as invalid and contrary to the Namibian Constitution.
Declaring that the applicant need not renounce her South African Citizenship for respondent to grant her a Certificate of Naturalisation as a Namibian citizen.
Declaring that applicant may at the same time be a citizen of Namibia and any other country or countries.
Directing respondent to issue to applicant a certificate of naturalisation and a Namibian passport within one month of the granting of an order by the above Honourable Court.
6.
Granting the applicant such further or alternative relief as the above Honourable Court may deem fit.
Directing that respondent pay the costs of the application.”
The Minister may, upon application made in the prescribed form, grant a certificate of naturalisation as a Namibian citizen to any person who satisfies the Minister that –
he or she complies with the requirements and conditions for the acquisition of citizenship by naturalisation; and ...
he or she is willing to renounce the citizenship of any foreign country of which he or she is a citizen; ...”
A certificate of naturalisation shall not be issued to any person over the age of 14 years until that person has taken the oath of allegiance or, if such person objects on religious grounds to the taking of an oath, made a corresponding solemn affirmation before one of such persons designated by the Minister.”
Citizenship by naturalisation may be applied for by persons who are not Namibian citizens under Sub-Articles (1), (2), (3) or (4) hereof and who:
are ordinary resident in Namibia at the time when the application for naturalisation is made; and
have been so resident in Namibia for a continuous period of not less than five (5) years (whether before or after the date of Independence); and