Govt caves in on dual citizenship

A FULL bench of the High Court was this week robbed of a chance to authoritatively settle continuing differences in opinion over the legality of dual citizenship in Namibia.

A full bench of the court, made up of Judge President Petrus Damaseb, Judge Collins Parker and Acting Judge John Manyarara, was ready on Monday to hear arguments in a case in which a Windhoek lawyer, Phillip Barnard, was taking on the Minister of Home Affairs on the issue whether people who are Namibian citizens by birth can at the same time also be citizens of another country. But the case between Barnard and the Minister was settled just before its scheduled hearing, with the settlement agreement made an order of the court.Having been informed that the case was no longer going to be fought out in court, the Judge President remarked that the three judges who were set to hear arguments in what they considered to be a very important case had already put in a lot of effort in doing research for the hearing and in preparing a draft judgement, only to be informed shortly before the hearing that the case had been settled.He also emphasised, though, that the settlement did not mean that the court had taken a decision on any of the issues that were at stake in the case, and that these might still have to be decided by a court at some point in the future.If the case had proceeded, it would have given the High Court only its second opportunity to make a ruling on the legality of dual citizenship under Namibian law.In a landmark ruling on this issue handed down in the High Court on July 2 this year, former High Court Judge Gerhard Maritz and Judge Sylvester Mainga agreed that people who are Namibian citizens by birth or descent can also hold the citizenship of another country.A three-judge bench would however have been able to overrule that decision, or if they came to the same conclusion, would have provided an even more authoritative judgement on the issue.In his case against the Minister of Home Affairs, Barnard informed the court that he was born at Karasburg in 1959.His mother had been born at Mariental in 1930.This made both of them Namibian citizens by birth, he stated.Barnard related that he and the rest of his family moved to South Africa when his father, who was a bank official, was transferred there by his employer in 1973.According to Barnard he always continued to regard himself as a Namibian, and never renounced his Namibian citizenship.At the same time, however, he also had South African citizenship.In 2006, Barnard decided to return to Namibia.He was admitted as a legal practitioner in Namibia in April 2007, and joined the Society of Advocates of Namibia in August last year.Before confirming that he is still a Namibian citizen, though, the Ministry of Home Affairs insisted that Barnard should first renounce his South African citizenship.He refused to do that.There is no requirement that he should renounce his other citizenship, Barnard claimed in an affidavit filed with the High Court.”I am a Namibian citizen by birth.I have that constitutional right.The right is unconditional.The (Minister of Home Affairs) cannot make the right conditional,” he stated.He added that the Constitution was clear, and that in terms of its Article 4 – which deals with the acquisition and loss of Namibian citizenship – he is a Namibian citizen by birth.”The Constitution does not give me the right to become a citizen; it states unequivocally that a person born in Namibia of a parent who would have been a citizen at the time of birth of such person had the Constitution been in force at the time of birth, is a citizen.It does not confer upon the (Minister) discretion to recognise my citizenship or to grant citizenship,” he stated.Barnard also argued that he could not be required to renounce his South African citizenship, as that would amount to placing a further requirement on him before the provisions of the Constitution’s article on citizenship are applicable to him.The Minister opposed the case filed by Barnard through a brief affidavit by Joseph Kashea, Deputy Permanent Secretary in the Ministry of Home Affairs and Immigration.In the affidavit, Kashea stated that it was accepted that Barnard had shown that he is a Namibian citizen by birth.Kashea added that Barnard was asked to renounce his South African citizenship and take an oath of allegiance to Namibia.Because he refused to renounce his South African citizenship, the Ministry could not issue him with Namibian identity documents or enter his name in the register of Namibian citizens, according to Kashea.He stated that this was because doing so would have contravened the Citizenship Act of 1990, which prohibits dual citizenship.Even though Barnard has shown that he is a Namibian by birth, he still needs to show his allegiance to the Republic of Namibia, Kashea further declared.In written arguments filed with the court, Barnard’s legal counsel, Raymond Heathcote, argued that the Citizenship Act was subject to the Constitution, and could not be used to reduce or limit Barnard’s constitutional right of citizenship by birth.The High Court has in any event previously found that the provisions of the Citizenship Act do not apply to Namibian citizens by birth, Heathcote also argued.With the settlement, which was made an order of the court, the Minister confirmed that Barnard is a Namibian citizen and undertook to issue him with proof of his citizenship within 30 days.The Minister also agreed to pay N$15 000 to Barnard for his legal costs in the case.Government lawyer Vivienne Katjiuongua represented the Minister.But the case between Barnard and the Minister was settled just before its scheduled hearing, with the settlement agreement made an order of the court.Having been informed that the case was no longer going to be fought out in court, the Judge President remarked that the three judges who were set to hear arguments in what they considered to be a very important case had already put in a lot of effort in doing research for the hearing and in preparing a draft judgement, only to be informed shortly before the hearing that the case had been settled.He also emphasised, though, that the settlement did not mean that the court had taken a decision on any of the issues that were at stake in the case, and that these might still have to be decided by a court at some point in the future.If the case had proceeded, it would have given the High Court only its second opportunity to make a ruling on the legality of dual citizenship under Namibian law.In a landmark ruling on this issue handed down in the High Court on July 2 this year, former High Court Judge Gerhard Maritz and Judge Sylvester Mainga agreed that people who are Namibian citizens by birth or descent can also hold the citizenship of another country.A three-judge bench would however have been able to overrule that decision, or if they came to the same conclusion, would have provided an even more authoritative judgement on the issue.In his case against the Minister of Home Affairs, Barnard informed the court that he was born at Karasburg in 1959.His mother had been born at Mariental in 1930.This made both of them Namibian citizens by birth, he stated.Barnard related that he and the rest of his family moved to South Africa when his father, who was a bank official, was transferred there by his employer in 1973.According to Barnard he always continued to regard himself as a Namibian, and never renounced his Namibian citizenship.At the same time, however, he also had South African citizenship.In 2006, Barnard decided to return to Namibia.He was admitted as a legal practitioner in Namibia in April 2007, and joined the Society of Advocates of Namibia in August last year.Before confirming that he is still a Namibian citizen, though, the Ministry of Home Affairs insisted that Barnard should first renounce his South African citizenship.He refused to do that.There is no requirement that he should renounce his other citizenship, Barnard claimed in an affidavit filed with the High Court.”I am a Namibian citizen by birth.I have that constitutional right
.The right is unconditional.The (Minister of Home Affairs) cannot make the right conditional,” he stated.He added that the Constitution was clear, and that in terms of its Article 4 – which deals with the acquisition and loss of Namibian citizenship – he is a Namibian citizen by birth.”The Constitution does not give me the right to become a citizen; it states unequivocally that a person born in Namibia of a parent who would have been a citizen at the time of birth of such person had the Constitution been in force at the time of birth, is a citizen.It does not confer upon the (Minister) discretion to recognise my citizenship or to grant citizenship,” he stated.Barnard also argued that he could not be required to renounce his South African citizenship, as that would amount to placing a further requirement on him before the provisions of the Constitution’s article on citizenship are applicable to him.The Minister opposed the case filed by Barnard through a brief affidavit by Joseph Kashea, Deputy Permanent Secretary in the Ministry of Home Affairs and Immigration.In the affidavit, Kashea stated that it was accepted that Barnard had shown that he is a Namibian citizen by birth.Kashea added that Barnard was asked to renounce his South African citizenship and take an oath of allegiance to Namibia.Because he refused to renounce his South African citizenship, the Ministry could not issue him with Namibian identity documents or enter his name in the register of Namibian citizens, according to Kashea.He stated that this was because doing so would have contravened the Citizenship Act of 1990, which prohibits dual citizenship.Even though Barnard has shown that he is a Namibian by birth, he still needs to show his allegiance to the Republic of Namibia, Kashea further declared.In written arguments filed with the court, Barnard’s legal counsel, Raymond Heathcote, argued that the Citizenship Act was subject to the Constitution, and could not be used to reduce or limit Barnard’s constitutional right of citizenship by birth.The High Court has in any event previously found that the provisions of the Citizenship Act do not apply to Namibian citizens by birth, Heathcote also argued.With the settlement, which was made an order of the court, the Minister confirmed that Barnard is a Namibian citizen and undertook to issue him with proof of his citizenship within 30 days.The Minister also agreed to pay N$15 000 to Barnard for his legal costs in the case.Government lawyer Vivienne Katjiuongua represented the Minister.