Source: Scalabrini Centre of South Africa and others
What are the Draft Amendment Regulations on the Citizenship Act?
On 24 July 2020, the South African government published the Draft Amendment Regulations on the Citizenship Act, 1995. These Draft Regulations were open to public comment. The Scalabrini Centre of Cape Town, and other organisations, responded to these Draft Regulations by submitting comments to the South African government.
These Draft Regulations are important because they give effect to the Citizenship Act as amended. They assist in setting out how the Act is implemented. For example, they set out how a person might make an application to citizenship in terms of certain sections of the Citizenship Act.
The Citizenship Act is an important piece of law that sets out who qualifies for South African citizenship. Among others, of particular interest to us is Section 4(3) which states that a child born in South Africa to two parents (who are not South African citizens, or who do not hold permanent residence) qualify to apply for citizenship, upon turning 18, if they have lived in South Africa from birth to 18 years of age, and if their birth is registered in accordance with the provisions of the Births and Deaths Registration Act.
2. How has The Scalabrini Centre of Cape Town reacted to these Draft Regulations?
The Scalabrini Centre has submitted comments on the Draft Regulations. These submissions were endorsed by Centre for Child Law, Lawyers for Human Rights, Nelson Mandela Refugee Rights Clinic, Section 27, Southern Africa Litigation Centre, Southern African Nationality Network, UCT Refugee Rights and SIHMA. You can read the full submissions by clicking the button below.
3. What was said in the submissions made by The Scalabrini Centre of Cape Town?
In short, the following concerns were raised:
- The Draft Amendment Regulations omit vital provisions regarding the implementation of section 2(2) of the SA Citizenship Act, 1995.
- The Draft Amendment Regulations are ultra vires the empowering provisions in the South African Citizenship Act, 1995.
- The Draft Amendment Provisions fail to comply with established jurisprudence interpreting section 4(3) of the South African Citizenship Act, 1995.
- The Draft Regulations fail to take into account recommendations made by international treaty bodies and are incompatible with international law.
- The Draft Amendment Regulations inhibits South Africa’s potential to fulfil its official pledges and commitments to the international community to prevent, reduce and eradicate statelessness within its borders.
- The Draft Amendment Regulations places restrictions on the rights of citizens naturalised in terms of section 4(3) of the South African Citizenship Act, 1995, thereby impairing their equal enjoyment of the rights, privileges and benefits of citizenship.
- Lastly, public participation in law-making is a key tenet of our democratic system. We are concerned that the public were only provided with 11 working days to respond to these Draft Regulations. We wish to encourage the government to allow more time for such submissions, and to ensure that the public participation procedure is not reduced to a tick-box approach.
We recommend that the Department amend the Amendment Regulations further so as to ensure that the final promulgated version is in line with guidance and jurisprudence provided by our Courts in relation to the interpretation of the specific provisions to which these Regulations pertain.
Download submission from this link: https://scalabrini.org.za/resources/submissions/our-submissions-on-citizenship-act-draft-regulations/ or here (PDF): ScalabriniCentre+Ors_Comments-draft-citizenship-regulations_31Aug2020
Additional comments by Christine Hobden highlighting three points:
- The draft regulations limit access to naturalisation without democratic mandate.
- The draft regulations create second-class citizens.
- The draft regulations fail to implement a key element of citizenship legislation.