By Dr Ngarikutuke Tjiriange
THERE has been uncertainty about certain issues concerning citizenship of some of our people, particularly those in Botswana. I shall try my level best to deal with this matter openly and honestly for the sake of our country and its peoples’ unity and political stability. I am concerned about this issue because if it is not dealt with properly it has the potential of causing negative reactions and political embarrassment.
I will confine myself to citizenship by descent:
BRIEF HISTORICAL BACKGROUND OF THE PEOPLE CONCERNED:
The Germans came into Namibia during the late 1800s. Their aim was to acquire wealth and land. This led to the resistance of the indigenous people of Namibia. Tragic battles were fought during which thousands of people were killed. This resulted in obliteration of more than 80% of Hereros and Namas. The Hereros and Namas were to be totally wiped away in order for their land to be given to German settlers.
It was against this background that some Hereros were forced to flee to the Bechuanaland Protectorate where many of them are found today. They stayed in this foreign country because they could not come back until after the independence of their motherland. It was not their choice but the terrible colonial massacre and oppression that forced them into that situation.
A good number of them participated in the liberation struggle and they now deserve the right to come back to their country.
TRADITIONAL
AND FAMILY
RELATIONSHIP
OF THE
HERERO GROUP
The Otjiherero-speaking people have completely unique and different relationships amongst themselves. They are closely bound together in their family relationships more than any other people in Namibia. They have big family connections and inner relationships and bonds which are unique to them. That is why their surnames are shared by only those who are closely knit together as family members and relatives. For example, in the Oshiwambo setup one can be having the surname of Angula while he is not related to the other Angula, or among Damara people one can be Garoeb while he is not related to the other Garoeb – but that is indeed very rare among Herero people. For example one cannot be Rukoro if he is not related to other Rukoros. That is why if there are Rukoros or Tjirianges in Botswana they must be related to Rukoros and Tjirianges in Namibia. It is against the background of this unique relationship among Herero people that they are not happy when their relatives in Botswana are not given citizenship to which other Hereros are entitled in Namibia.
These examples are made here just to underline the fact that the issue at hand is serious, complicated and sensitive, of course not to mention the fact that sometimes it is not dealt with in a legally sound manner. The issue may turn out to be an embarrassment to the government if it is not handled properly because the Hereros may not take it lightly. We need to handle this sensitive matter with utmost care and diligence to avoid litigation by those who might feel disadvantaged and treated unfairly.
Even worse, the issue may be politicized and cause uneasiness if proper decisions and solutions are not found. This brings me to the issue of the citizenship of the people who are in Botswana today.
CITIZENSHIP BY DESCENT
Article 4(2) of the Constitution of the Republic of Namibia stipulates that the following persons shall be citizens of Namibia by descent:
– Those who are not Namibian citizens under Sub-article (1) hereof and whose fathers or mothers at the time of the birth of such persons are citizens of Namibia or whose fathers or mothers would have qualified for Namibian citizenship by birth under Sub-Article (1) hereof, if this Constitution had been in force at that time: and
– Who comply with such requirements as to registration of citizenship as may be required by Act of Parliament: provided that nothing in this Constitution shall preclude Parliament from enacting legislation which requires the birth of such persons born after the date of independence to be registered within a specific time either in Namibia or at an embassy, consulate or office of trade representative of the Government of Namibia.
For the sake of understanding this article let me analyze it.
a) The first part of Article 4(2)(a) deals with provisions which distinguish people who are covered by this part (a) from those covered by the first part and other parts of Chapter 2. The first part of Article 4(2)(a) deals with people who are not Namibian citizens under Sub-Article (1) of the Constitution. In other words those who are not citizens by birth i.e. uis soli. The people who were born in Botswana are surely not citizens by the provisions of Article 4(1) thereof. They can only be covered by the provisions of Article 4 (2) (a) which states: “those who are not Namibian citizens under Sub-Article (1) thereof and whose fathers or mothers at the time of birth of such persons are citizens of Namibia“- “uis sanguinis”. Their fathers or mothers were surely citizens of this country when they fled the land at that time. The children of these people are citizens by descent since they were born to citizens of Namibia in foreign land that is by uis sanguinis.
b) The children of these people are also citizens by descent because their “fathers or mothers at the time of the birth of such persons are citizens of Namibia”. The provision in the Constitution which states “whose fathers or mothers at the time of the birth of such persons are citizens of Namibia, deliberately does not specify that fathers or mothers must be citizens either by birth or descent. Therefore, it can be understood and concluded from this silence that it just suffice for one or both parents to be Namibian citizens at the time of the birth of such persons i.e. either citizens by birth or descent for one to be a citizen by descent.
Since this generation or children are citizens of Namibian their children will also be covered by the provision which stipulates that “whose fathers or mothers at the time of the birth of such person are citizens of Namibia”. I repeat again that it does not really matter whether the father or mother is a citizen by birth or by descent because the Constitution is silent on that in the above quoted provision. It might have been intended to accommodate those who may find themselves in similar situations. Therefore it is difficult to agree with the view that only those whose parents are citizens by uis soli are entitled to citizenship by descent – uis sanguinis.
c) The next and third provision of the same Article 4 (2)(a) goes on to state that “Or” whose fathers or mothers would have qualified for Namibian citizenship by birth under Sub-Article (1) hereof , if this Constitution had been in force at that time”. Here “or” is used not “and”. “Or” means the following provision is introducing another possibility. “Or” in that sense is used to introduce two possibilities. (for example “are you a man or a woman” “are you a believer or non-believer, etc). “And” clearly connects the sentences and the meaning of words thereof.
The next provision in 4 (2)(b) which states that and “(b) who comply with such requirements as to registration of citizenship as may be required by Act of Parliament”, deals more with procedural requirements. In other words, the Parliament may lay down procedures and requirements that must be followed and adhered to when a person is regularizing or registering his/her citizenship. These are more of administrative issues and do not impact on the rights to citizenship of the persons concerned.
d) There is an argument that concludes that only children whose fathers or mothers at the time of the birth of such person are citizens of Namibia by birth are qualified to be citizens by descent and those who are children of citizens by descent are not citizens by descent. However, I am afraid to say that Article 4(2)(a) on which this argument is said to be based does not provide and state so as I have elaborated above.
It is against this argument that it becomes clear that the children of the people whose either father or mother were citizens of Namibia either by birth or descent at the time of birth of such children are citizens under the principle of uis sanguinis.
LOSS OF
CITIZENSHIP:
Namibian citizenship shall be lost by persons who renounce their Namibian citizenship by voluntarily signing a formal declaration to that effect (Article 4 (7).
Article 4(8) of the Constitution provides that nothing in the Constitution shall preclude Parliament from enacting legislation providing for loss of Namibian citizenship under certain circumstances which are stated in the Constitution. However, the Constitution states that “provided that no person who is a citizen of Namibia by birth or descent may be deprived of Namibian citizenship by legislation”.
The citizens by birth and descent cannot lose their citizenship even if they acquire citizenship of another country if they have not renounced their citizenship as provided for in Article 4(7) of the Constitution. The above provisions of the Constitution treat the citizenship by birth and by descent as equally important that is why both citizenships cannot be revoked by any legislation. It follows therefore that children of both those who are citizens by birth and those who are citizens by descent should be entitled to citizenship which benefits and is legally appropriate for them.
That citizenship can surely be only citizenship by descent.
The Parliament can only make laws that are not inconsistent with the Constitution, therefore any laws that have been made by the Parliament in violation of or in conflict with the provision of the Constitution are null and void.
The arguments in this opinion are not based on any law passed by the Parliament but by analyzing the provisions of the Constitution only which is the basic and paramount legal instrument upon which all the other laws of the land are based, including but not limited to the laws regulating citizenship.