Source: The Namibian
By: WERNER MENGES
NAMIBIAN citizens by birth can hold dual citizenship. This is the effect of an order that was given in the High Court in Windhoek yesterday.
The Namibian Citizenship Act’s section 26, which states that no Namibian citizen may also be a citizen of a foreign country, does not apply to persons who hold Namibian citizenship by birth, it is declared in the order handed down by Judge Dave Smuts.
The order was given in the wake of a concession from Attorney General Albert Kawana in a case in which a born Namibian, Iris le Roux, was challenging the Citizenship Act’s prohibition of dual citizenship.
In an affidavit filed with the High Court, Kawana conceded that the part of the Namibian Citizenship Act which prohibits dual citizenship does not apply to people who are Namibian citizens by birth.
Kawana noted that the Namibian Citizenship Act states that its prohibition of dual citizenship is subject to the provisions of the Act itself or “any other law”. Namibia’s Constitution would be included under “any other law”.
“Since the Namibian Constitution does not authorize the deprivation of Namibian citizenship by birth on account of the acquisition of the citizenship of any other country, section 26 of the Act does not apply to Namibian citizens by birth,” Kawana stated in the affidavit.
In terms of the Constitution, Namibian citizens by birth can only cease to be Namibian citizens if they voluntarily renounce their citizenship, Kawana also stated in the affidavit.
The Constitution expressly states that no person who is a Namibian citizen by birth or descent may be deprived of his or her citizenship through a law that provides for the loss of Namibian citizenship by persons who have acquired the citizenship of another country.
In the order given by Judge Smuts it is also declared that Le Roux is a Namibian citizenship by birth.
Le Roux sued the Minister of Home Affairs and Immigration, the Attorney General and Government, asking the court to issue the orders which were given yesterday, after an immigration official told her last year that she and her two daughters had to leave the country or face deportation. After she had already filed the case in which the law on dual citizenship was being challenged, the Ministry of Home Affairs and Immigration’s Chief of Immigration notified Le Roux in mid-December last year that she had to leave Namibia within three days, or that she could be prosecuted if she failed to comply with that order. That was after an application by her for an extension of the visitor’s entry permit on which she was in Namibia at that stage was turned down.
The orders granted by the court were not put into dispute by the three respondents.
Le Roux was born in Windhoek in 1962, completed her schooling in Namibia, and then went to South Africa to study. She later married a South African citizen and stayed in South Africa until she moved back to Namibia with her two daughters in March last year.
According to Le Roux, she is a Namibian by birth, and she has never renounced her Namibian citizenship.
Le Roux also wanted the court to declare that she is entitled to obtain the citizenship of another country without having to renounce her Namibian citizenship. This part of her application was opposed by the respondents.
On this score, Kawana said it would depend on the laws of the other country whether a Namibian citizen would have to renounce her Namibian citizenship when she obtained the citizenship of the other country. Under international law, the Namibian Government cannot interfere with the domestic laws of another sovereign state, Kawana said.
Le Roux’s lawyer, Norman Tjombe, did not press on with her application on that point.
In his ruling, Judge Smuts said he agreed with the approach followed by Judge Gerhard Maritz in July 2008 in a case in which the issue of dual citizenship first arose. In his judgement in that case, Judge Maritz reasoned that the Constitution safeguards 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.
Judge Smuts ordered the respondents to pay Le Roux’s legal costs in the case.
The Minister, Attorney General and Government were represented by Tulimeke Koita of the Office of the Government Attorney yesterday.