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Court confirms legality of dual citizenship for some Namibians

Wednesday, July 9, 2008
Werner Menges
The Namibian

A LANDMARK judgement on dual citizenship in Namibia, delivered in the High Court last week, affirms that Namibian citizens by birth or descent can also hold the citizenship of another country without having to renounce their Namibian citizenship.

In a long-awaited judgement by Judge Gerhard Maritz, the Constitution's provisions on citizenship have been interpreted as safeguarding the Namibian citizenship of people who are citizens of the country by birth or descent to such an extent that no law can be used to strip such Namibians of their citizenship.

This means that the only way Namibian citizens by birth or descent can lose their citizenship is if they formally renounce it.

It also means that the Constitution allows Namibian citizens by birth or descent to hold dual citizenship - and that no law can legally prohibit this.

Judge Sylvester Mainga agreed with the judgement written by Judge Maritz.

The judgement handed down on Wednesday contains the reasons for a decision that the two Judges took all the way back in late August 2000, when they dismissed an application from a South African citizen who wanted to obtain Namibian citizenship through naturalisation without having to renounce her South African citizenship.

South African citizen Poppy Elizabeth Tlhoro had been lawfully resident in Namibia since 1981 by the time she asked the High Court, in a test case on dual nationality under Namibian law, to declare two parts of the Namibian Citizenship Act of 1990 unconstitutional.

The first part of the act under attack requires foreigners who obtain Namibian citizenship to take an oath of allegiance to Namibia in which they formally renounce their allegiance to the country of which they had previously been citizens.

The second part of the Act states: "Subject to the provisions of this Act or any other law, no Namibian citizen shall also be a citizen of a foreign country."

That reference to "any other law" would include the Constitution, the two Judges agreed.

Judge Maritz stated: "Although the Constitution does not expressly allow dual citizenship, it follows naturally and logically from the implementation of its provisions and was expressly contemplated as a possibility."

Judge Maritz pointed out that the Constitution states that no person who is a citizen of Namibia by birth or descent may be deprived of Namibian citizenship by legislation that provides for the loss of citizenship of Namibians who have obtained the citizenship of another country.

He also stated: "Moreover, if permitted under the laws of a foreign State, Namibian citizens by birth or descent are at liberty to acquire citizenship of those States even after Independence without being at risk of losing their Namibian citizenship."

Judge Maritz laid out the law on that issue: "Parliament may not deprive individuals of Namibian citizenship by birth - not even if, after the date of Independence, they have acquired the citizenship of any other country, or served in the armed forces of such a country without permission of the Namibian Government or if they have taken up residence in such a country and absented themselves for a period of more than two years without such permission.

The only manner in which persons falling within this category (of being Namibian citizens by birth) may be deprived of Namibian citizenship is by voluntary renunciation in formal deed to that effect."

For Namibian citizens by descent, "much the same holds true", Judge Maritz added.

For people like Tlhoro, who wanted to obtain Namibian citizenship by naturalisation, it was not against the Constitution to require them to renounce their previous citizenship when they acquired Namibian citizenship, the two Judges ruled.

The Constitution does not treat the acquisition of citizenship by naturalisation, registration or marriage the same as citizenship by birth or descent, Judge Maritz noted.

"Whilst loyalty to the Namibian State may well be assumed from Namibian citizens tied to the country by birth or blood, others not so intimately or closely connected may be required to demonstrate their loyalty and allegiance to Namibia by renouncing their citizenship of the other State and to take an oath of allegiance to Namibia," Judge Maritz remarked.

To not require people who become citizens of Namibia by naturalisation to renounce their foreign nationality could conceivably end up endangering the security of Namibia, Judge Maritz reasoned.

It was not contrary to the Constitution to as a result require new Namibian citizens by naturalisation to renounce their previous citizenship, it was ruled.

Tlhoro was represented by lawyer Clinton Light, then still with the Legal Assistance Centre, with the hearing before Judges Maritz and Mainga.

The then Government Attorney Vicki Erenstein ya Toivo represented the Minister of Home Affairs.

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