Is the automatic loss of South African citizenship for those acquiring other citizenships constitutional? Democratic Alliance v Minister of Home Affairs

Published: 8/Jan/2023
Source: South African Journal on Human Rights

David Bilchitz & Reuven (Ruvi) Ziegler (2023) Is the automatic loss of South African citizenship for those acquiring other citizenships constitutional? Democratic Alliance v Minister of Home Affairs, South African Journal on Human Rights, DOI: 10.1080/02587203.2022.2158925

1. Introduction

For an increasing number of people, global mobility is a feature of their lives. Employment opportunities may arise in countries far removed from one’s place of birth; one may meet a significant other and seek to re-locate. For some, new citizenships may be acquired for instrumental reasons: ease of movement, as Covid-19 national restrictions have demonstrated, often requires not only applying for permission to reside indefinitely in another country but also naturalisation; for others, it may reflect a deeper significance, representing a stronger connection to a polity to which one wishes to belong and to participate politically. What acquisition of a new citizenship does not ipso facto mean is that an individual wishes to lose the citizenship of their country of origin, to which they may retain intense and deep ties.

The legal consequences of the acquisition of foreign citizenship were the subject of Democratic Alliance v Minister of Home Affairs,1 a 2021 case in the High Court of South Africa (Gauteng division, Pretoria). The Democratic Alliance unsuccessfully challenged the constitutionality of s 6 of the Citizenship Act 68 of 1995. This provision stipulates that adult citizens automatically (de lege) lose their South African citizenship when they ‘freely and voluntarily’ acquire another citizenship (except through marriage) without first applying for and obtaining a ministerial certificate authorising its retention. The applicants argued this policy is irrational and that it violates several fundamental rights, including the right not to be deprived of South African citizenship and other rights that are constitutionally guaranteed to citizens, particularly political participation rights, the right to enter the Republic and remain therein, and the freedom to choose an occupation.

This note critically appraises Kollapen J’s judgment, highlighting its potential detrimental effect for South Africa’s constitutional development. Part 2 offers an overview of the case and some of the key components of its reasoning. Parts 3–5 consider three topics. First, irrationality: it is argued that the judgment fails to identity a plausible, explicit, rational basis for the automatic loss of citizenship stipulated by s 6 of the Act. The judge alludes to an implicit rationale reflecting an outdated and erroneous perception as to what is signified by the voluntary acquisition of another citizenship. Importantly, such a rationale is inconsistent with the legislation’s and indeed the government’s general acceptance of multiple citizenships. Furthermore, this note critiques the judgment’s failure to consider the complete absence of legislative criteria to guide the exercise of ministerial discretion for those applying to retain their South African citizenship; indeed, that fact alone should render the provision unconstitutional due to its vagueness, a critical aspect of the rule of law. Second, violation of applicable constitutional rights: drawing on a purposive understanding of the relevant right and a consideration of international law, it is contended that the judgment errs in failing to find that the automatic, de lege, loss of citizenship constitutes a de facto deprivation thereof and hence an infringement of the constitutional right to citizenship. It is suggested also that the judgment fails to give due regard to the detrimental effects that loss of South African citizenship has on the enjoyment of other, citizenship-contingent constitutional rights. Lastly, this note critically appraises the judgment’s limitation of rights analysis: it is argued that the judgment’s reasoning effectively allows for circumvention of the strong justification requirement in s 36(1) (the limitations clause) that applies whenever the Constitution of the Republic of South Africa, 1996 contains a broad empowering provision; indeed, were this interpretive approach to be adopted in other constitutional contexts, it would severely undermine the protection afforded by fundamental rights.

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Themes: Double Nationalité, Perte et déchéance de la nationalité
Regions: Afrique du Sud
Year: 2023