“Naturalization is not a matter to be taken lightly. To seek and to obtain it is not something that happens frequently in the life
of a human being. It involves his breaking of a bond of allegiance and his establishment of a new bond of allegiance. It may have
far-reaching consequences and involve profound changes in the destiny of the individual who obtains it. It concerns him personally,
and to consider it only from the point of view of its repercussions with regard to his property would be to misunderstand its profound
significance. In order to appraise its international effect, it is impossible to disregard the circumstances in which it was conferred,
the serious character which attaches to it, the real and effective, and not merely the verbal preference of the individual seeking
it for the country which grants it to him.”
[3]
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.).
[4]
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.
[5]
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.
[6]
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:
“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.
2.
Setting aside section 26 of the Namibian Citizenship Act as invalid and contrary to the Namibian
Constitution.
3.
Declaring that the applicant need not renounce her South African Citizenship for respondent
to grant her a Certificate of Naturalisation as a Namibian citizen.
4.
Declaring that applicant may at the same time be a citizen of Namibia and any other country
or countries.
5.
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.
7.
Directing that respondent pay the costs of the application.”
[7]
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.
[8]
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.
[9]
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.
[10]
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:
“5(1)
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 –
(a)
he or she complies with the requirements and conditions for the acquisition of citizenship by naturalisation;
and ...
(g)
he or she is willing to renounce the citizenship of any foreign country of which he or she is a
citizen; ...”
(6)
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.”
The “oath of allegiance” referred to in s. 5(6) is defined in s. 1(1) of the Act as the oath of allegiance set out in
the First Schedule of the Act, which reads as follows:
“I, A.B., do hereby declare on oath that 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 I will be faithful to the Republic of Namibia, observe its laws, promote
all that which will advance it and oppose all that may harm it.
So Help Me God.”
Section 26 of the Act prohibits dual citizenship in the following terms:
“Subject to the provisions of this Act or any other law, no Namibian citizen shall also be a citizen of a foreign country.”
[11]
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:
“4(5)
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:
(a)
are ordinary resident in Namibia at the time when the application for naturalisation is made; and
(b)
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
(c) satisfy any other criteria pertaining to health, morality, security or legality of residence as may be prescribed by law.”
[12]
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.
[13]
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.
[14]
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.
[15]
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.
[16]
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.
[17]
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.
[18]
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.
[19]
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.
[20]
These considerations were also alluded to in Swart v Minister of Home Affairs, Namibia, supra, at 274:
“Given the historical background within which our Constitution was framed, it had to address the diversity of origin of all Namibia’s
people to bring about one nation under a common citizenship – accommodating everyone with a rightful claim to such a citizenship
and, at the same time, affording others the opportunity to become Namibians …”
[21]
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.
[22]
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 (ius soli). Those falling within the ambit of the Sub-Article become Namibian citizens purely by operation of law and they are not required
to do anything as a precondition to the conferral of Namibian citizenship upon them. The automatic acquisition of Namibian citizenship
by birth may not be otherwise regulated or derogated from by an Act of Parliament. 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 thereafter from Namibia for a period of more than 2 years without such permission. The only manner in which persons falling within this category may be deprived of Namibian citizenship is by voluntary renunciation
in a formal deed to that effect.
[23]
Much the same holds true for the second group: those who have acquired the right to Namibian citizenship by descent (ius sanguinis), except that in their case, Parliament may require of them to register as citizens as a precondition to the acquisition of citizenship
and, in relation to those born after Independence, may require registration within a specific time and at a place mentioned in paragraph
(b) of Article 4(2).
[24]
In respect of the third and fourth groups (those who are citizens by marriage or registration), there are stringent residency requirements
and Parliament may enact legislation providing for the loss of Namibian citizenship in circumstances referred to in Article 4(8).
[25]
Parliament has the same powers to provide for the loss of Namibian citizenship in respect of those falling within the fifth group,
i.e. those who have acquired citizenship by naturalisation. But, in addition to those powers and residency requirements, Parliament
may also lay down criteria pertaining to health, morality, security or legality of residence in order to acquire citizenship by naturalisation.
[26]
In respect of honorary and other forms of individualised citizenship based on a person’s special skill or experience or commitment
to or services rendered to the Namibian nation (the sixth group), Parliament may authorise the conferment of Namibian citizenship
on “fit and proper” persons.
[27]
Finally, Parliament is granted plenary powers by Article 4(9) to make laws, not inconsistent with the Constitution, regulating the
acquisition or loss of Namibian citizenship. Arguably, it may under this provision allow for the acquisition of other conceivable
categories of Namibian citizenship - as it has done as for those who had left Namibia “owing to persecution by the colonial
government which was in control of the country before 1915” under the Namibian Citizenship Special Conferment Act, No 14 of 1991.
[28]
Thus, as this brief analysis show, in the spectrum allowed by Article 4 for the conferral or acquisition of Namibian citizenship,
Parliament’s regulatory powers range between none and broad – depending on the closeness of the person’s connection
with the country (i.e. by birth, descent, marriage with ordinary residence for 2 years; registration with ordinary residence upon
Independence and for the 5 preceding years; naturalisation with ordinary residence upon the date of application and for a continuous
period of 5 years and satisfying certain criteria, etc.).
[29]
Before referring to the spirit of the Constitution relevant to the assessment of the issues, it is convenient to briefly pause and
consider the constitutionality of s. 26 of the Act in the context of the inverted relationship referred to in the previous discussion.
Although the section prohibits Namibian citizens to also be citizens of other countries, it does so subject to “the provisions
of this Act or any other law”. Inasmuch as the Constitution is one of the “other” laws contemplated in the proviso
to the prohibition, the contention that the prohibition falls foul of the Constitution is clearly untenable. The prohibition is expressly made subject
to the provisions of the Constitution and, therefore, no conflict can arise. The applicant, I thought, eventually conceded that much.
For that reason, prayer 2 of Notice of Motion failed. 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. Two examples will
suffice to illustrate the point. It stands to reason that, given the international drive to eliminate statelessness, that most or all Namibians who became Namibian citizens by birth on the date of Independence were also citizens of the sovereign
States whose citizenship they held the day before. Unless they were deprived of their foreign citizenship in terms of the laws of
those States, they remained citizens thereof upon Independence notwithstanding the fact that they had also automatically acquired
Namibian citizenship by operation of law. 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 (compare Art. 4(8)(a) of the Constitution and the proviso thereto).
[30]
The spirit which permeates the design of the Namibian citizenship scheme must have been inspired by the expressed commitment of the
Namibian people to “strive to achieve national reconciliation and to foster peace, unity and a common loyalty to a single state”
(c.f. par 5 of the Preamble to the Constitution). These are powerful words which, in my view, must be accorded their full weight
and which, together with the constitutional purpose and tenor of the citizenship scheme, must guide the Court in the interpretation
of Parliament’s legislative powers under Article 4(5)(c) of the Constitution in general and in assessing the constitutionality
of the statutory demand for foreign citizenship-renunciation as a prerequisite to the acquisition of Namibian citizenship by naturalisation
in particular.
[31]
I am strengthened in this purposive, value-based approach by the interpretation of the Constitution in a long line of judgments of
this Court since Independence. It is the spirit and tenor of the Constitution, Mahomed AJ (as he then was) held in S v Acheson, 1991 NR 1 (HC) at 10A-B; 1991 (2) SA 805 (Nm) at 813A-C, which must “preside and permeate the processes of judicial interpretation and judicial discretion”. “The
Constitution of a nation”, he said in the same breath, “is not simply a statute which mechanically defines the structures
of government and the relations between the government and the governed. It is a ‘mirror reflecting the national soul’,
the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining
its government.” This approach has subsequently been endorsed by the Supreme Court in S v Van Wyk, 1993 NR 426 (SC) at 456F and S v Kandovazu, 1998 NR 1 (SC) at 3H .
[32]
Whilst loyalty to the Namibian State may well be assumed from Namibian citizens tied to the country by birth or blood (jus soli or jus sanguinis), 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. It is significant to note in this context that
in Art. 4(4) the renunciation of any other citizenship is demanded by the Constitution itself from those who wished to become Namibian
citizens by registration. The demand for loyalty to a single State (from persons other than those from which it may be assumed by
reason of birth or descent) is therefore not alien to the Constitution but conforms to the spirit thereof; it does not run counter
to the citizenship scheme in the Constitution but is expressly envisaged in certain instances. Whether it is a permissible precondition
to the acquisition of Namibian citizenship by naturalisation as contemplated by Art. 4(5)(c), when viewed against the matrix of the
preceding observations, is the issue which must be considered next.
[33]
The elegance with which the Constitution deals with ever-changing values and circumstances lies in the use of words and concepts of
general import which allows for a measure of flexibility in the interpretation and application thereof. Those are the kind of words
used in paragraph (c) of Article 4(5). It allows Parliament to prescribe, in addition to the qualifying criteria contained in paragraphs
(a) and (b), any other criteria “pertaining to health, morality, security or legality of residence” for persons who may
wish to apply for Namibian citizenship by naturalisation. Whilst I remind myself that one may not “stretch or pervert the language”
to interpret the Constitution to mean “whatever we might wish it to mean”, this Court may not strike down legislation falling within the ordinary meaning, scope and ambit of the words used in the empowering
Article.
[34]
The word “security” in the context of the Article, Mr Light contends, means “most probably that the applicant not
be a danger to the safety of the state and to the community”. Whilst these notions undoubtedly fall within the meaning of the
word, must its meaning be so limited? I think not. The word is not qualified - as in other parts of the Constitution (by the word
“national” in Articles 11(5), 12(1)(a), 13(1), 21(2) an 26(5)(a) or “internal” in Art 115 or by “in
its international relations” in Art 96). There is nothing in the article suggesting that it should not also be interpreted
in its ordinary sense on a more personal level, i.e. as meaning “the state of being or feeling secure”. The word “secure”, in turn, includes the following: “certain to remain safe and unthreatened … feeling
free from fear or anxiety”. Just as the word “health” in the article may be interpreted to refer both to the personal health of the prospective applicant and that of the community and
the word “morality” may refer to the character of the person as well as the moral values of the community, I do not find
any reason why the word “security” may not be interpreted to apply to the security of the State, that of the community
in its various regions and interest groups and that of individuals. Moreover, the meaning of the word “security” is often
coloured by the context in which it is used – the context, in this instance, being that of citizenship. To understand the interrelationship
between security and citizenship, it is necessary to reflect for a moment on the meaning of citizenship.
[35]
As a term of constitutional law, “citizenship" according to Dugard, "is best used to describe the status of individuals internally, particularly the aggregate of civil and political rights to
which they are entitled". Booysen defines it as the legal bond between an individual and a particular State. According to him, citizenship confers a particular status
upon an individual in the constitutional system of which the individual is a citizen and encompass the totality of political and
civil rights to which the individual is entitled in that State. From an international perspective, however, that relationship is
generally referred to and governed by the principles relating to "nationality". In the Nottebohm case, the International Court of Justice dealt with “nationality” as follows:
“
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