Augustinus v Minister of Home Affairs and Immigration (APPEAL 279 of 2007) [2008] NAHC 82 (01 August 2008);
CASE NO.: A 279/2007
LOUIS AUGUSTINUS
and
THE MINISTER OF HOME AFFAIRS AND IMMIGRATION
SUMMARY
IN THE HIGH COURT OF NAMIBIA
and Heard on: [2] under secretary in the Ministry. The sworn translation of the letter reads as follows: In terms of the provisions of Articles 4(4) of the Constitution of the Republic of Namibia, you are eligible to register yourself as a citizen of the Republic of Namibia. Before the above mentioned registration, you are required to renounce the citizenship of any other country that you may possess. The Ministry would appreciate if you could submit this letter with your passport and/or the identity document when you contact the nearest representative of the country of your citizenship, in order for you to renounce your current citizenship. After the renunciation of your citizenship, please present to the Ministry of Home Affairs (Department for Civic Affairs) prove (sic) of renunciation to allow the Ministry to proceed with your registration as a citizen of the Republic of Namibia. should apply their own laws and not that of Angola. Our client complied with all your requirements and also renounced his Angolan citizenship; he are ordinarily resident in Namibia at the time when the application for naturalization is made; and have so resident in Namibia for a continuous period of not less than five (5) years (whether before or after the date of Independence); and satisfy any other criteria pertaining to health, morality, security or legality of residence as may be prescribed by law.” (b) (f) an applicant who is a citizen of another country is required to renounce his or her citizenship of that other country. clear from the founding affidavit that the action on which the applicant relies is that, after accepting that he ought to renounce his Angolan citizenship before the Angolan Embassy as required by the Act, he handed in a copy of the oath of allegiance to Namibia and the renunciation declaration and told the Angolan confirming receipt of the Namibian documents he handed in. The applicant realized or must be taken to have realized that he had not renounced his Angolan citizenship because he kept attending at the Embassy without success and ultimately instructing legal practitioners to represent him and they also failed to elicit any response from the Angolan Embassy. The applicant, perhaps unwittingly, supports the strength of the case against him by averring in the founding affidavit as follows: Significantly, though the applicant filed a replying affidavit, he evaded the damaging averment made by the answering affidavit deposed by the Permanent Secretary as follows: Instructed by: Instructed by:
MANYARARA, A.J.
19 May 2008
Delivered on:
01 August 2008
[1]
This is an application to compel the respondent to grant a Certificate of Naturalisation to the applicant within one month of the Order of this Court.
The application is opposed.
A preliminary issue related to an application by the applicant for condonation of the late filing of his heads of argument which was unopposed and was granted without more.
The facts deposed in the founding affidavit are that the applicant was born in Angola on 9 December 1971. His parents brought him to Namibia in 1974 when he was three years old and he has resided in the country since then. On 18 November 2003 he applied for Namibian citizenship by completing the prescribed application forms setting out his particulars. The Ministry of Home Affairs (the Ministry) acknowledged receipt of the application, by a letter which advised the applicant to enquire about the outcome of his application within 180 days.
As advised, the applicant enquired about his application regularly and he averred that sometime during September or October 2005 certain unnamed officials of the Ministry advised him that his application was successful and the Certificate of Namibian Citizenship would be issued after he took the oath of allegiance to Namibia and renounced his Angolan citizenship. On 6 October 2005 he signed the prescribed oath of allegiance to Namibia before a police officer of the rank of Constable in Katutura designated as a Commissioner of Oaths.
On 7 October 2005 the applicant attended at the Angolan Embassy and handed in a letter written in the Portuguese language addressed to him by the
REGISTRATION AS NAMIBIAN CITIZEN
The applicant avers that the official present at the Angolan Embassy informed him that he was free to apply for Namibian citizenship but the Angolan authorities would not provide him with documentation of renunciation of Angolan citizenship. Thereafter, the applicant made a number of enquiries at the Embassy “with the hope that they might have changed their position and was always informed of the same stance” (sic).
The applicant then instructed legal practitioners who on 9th and 21st November 2006 addressed letters to the Angolan Embassy repeating their client’s request for a letter of confirmation of his renunciation of Angolan citizenship. On 15 November 2006 the legal practitioners addressed a letter to the Permanent Secretary in the Ministry in the following terms:
“Dear Sir/Madam
I/s AUGUSTINUS LOUIS, RENUNCIATION OF ANGOLAN CITIZENSHIP.
was only born in Angola and stayed there for 3 years of his life, the remaining 32 years he lived in Namibia.
I note that according to the founding affidavit the applicant has resided in Namibian since 1974 and not 1971 as stated in the above letter but that could well be a typing error.
The requirements for application for Namibian citizenship are set out in Article 4(5) of the Namibian Constitution (the Constitution) as follows:
Sub-Articles (1), (2), (3) and (4) are irrelevant as they relate to citizenship by birth or descent or marriage.
Pursuant to Article 4(9) of the Constitution, Parliament enacted the Namibian Citizenship Act 14 of 1990 (the Act) to further regulate the acquisition (or loss) of Namibian citizenship by naturalization. Section 5(1) of the Act provides as follows:
“The Minister may, upon application made in the prescribed form, grant a certificate of naturalization 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 naturalization; and
he or she has been lawfully admitted to Namibia for residence therein; and
(c)
he or she is not a child under the age of 18 years; and
(d)
he or she is of good character; and
he or she intends to continue to reside in Namibia or to enter or continue in the service of the Government of Namibia or of an international organization of which the Government of Namibia is a member, or of a person or association of persons resident or established in Namibia; and
he or she has an adequate knowledge of the responsibilities and privileges of Namibian citizenship; and
(g)
he or she is willing to renounce the citizenship of any foreign country of which he or she is a citizen; and
he or she has not been convicted in Namibia of an offence specified in the Second Schedule to this Act.”
It is not disputed that the applicant meets all of the above requirements, including paragraph (g), as averred by the founding affidavit. I have included
Section 5(8) of the Act further provides as follows:
And Section 26 of the Act provides that –
It will be evident that the Act expressly prohibits dual citizenship and it follows, by necessary implication, that, in order to satisfy Section 26 of the Act,
In this regard, the applicant avers in the founding affidavit that-
The Ministry acknowledged receipt of the application.
He attended at the Angolan Embassy and handed in the letter from the Ministry already mentioned and a copy of the declaration of the
oath of allegiance (to Namibia) and renunciation of Angolan citizenship
The Angolan authorities have refused to acknowledge receipt of the letter and the other documents brought by the applicant.
The affidavit continues as follows:
It is against that background that the application to compel the respondent to grant a certificate of naturalization as a Namibian citizen was launched.
Both Mr. Tjombe representing the applicant and Mr. Chanda representing the respondent are agreed that the crisp issue for determination is: Has the applicant “renounced” his Angolan citizenship?
Much debate was devoted to the meaning of the term “renounce.” In the course of such a debate, Mr. Tjombe proffered the definition which he submitted appears in Lectric Law Library’s Lexicon and defines the term as follows:
In my view, the definition suffices for the purpose of this application.
According to Mr. Tjombe, what the applicant has done suffices because the Act does not specify that an applicant must provide written proof of the renunciation and the respondent’s insistence on such proof is ultra vires the Act.
In my view, Mr. Tjombe’s argument is over-simplistic. Clearly, if the lawmaker’s intention was that the delivery of a renunciation declaration to the relevant embassy would be sufficient he would have said so and I understand this to be the main thrust of Mr Chanda’s argument. He submitted that it is
The applicant’s status in Namibia is that of a permanent resident as reflected by the permit annexed to the founding affidavit issued to him in 1994.
“It is strongly denied and cannot be argued even by a stretch of any imagination that the Applicant is now stateless (as alleged by the founding affidavit) as the Applicant has not yet renounced his Angolan citizenship proof whereof is still being awaited. I wish to reiterate that “LA3” is not written proof of renunciation it is an oath of allegiance to the Republic of Namibia. The Applicant by constantly referring to the said annexure “LA3” is attempting to mislead this Honourable Court that he has renounced his Angolan citizenship when not.”
In the circumstances, I am in agreement with Mr. Chanda that the applicant has failed to make out a case for the relief he seeks.
It is for the above reason that I suggested to Mr. Tjombe that the application to compel the Minister to grant a certificate of naturalisation in the circumstances of this application is ill conceived. It seems to me that in view of the provisions of Subsection (7) of Section 5 of the Act an application to review and set aside the Minister’s decision not to grant the certificate might have fared better. The Subsection provides as follows:
Both counsel are agreed that an order for costs would be out of place in this matter and I agree. Therefore, the application is dismissed with no order for costs.
__________________
MANYARARA, AJ
Legal Assistance Centre
Government Attorney