The South African Citizenship Bill is an inadequate piece of legislation which requires attention, writes the Black Sash’s Sheena Duncan
When Mr M, a South African citizen born in the Eastern Transvaal, was deported to Mozambique as an illegal alien for the second time, he approached the Black Sash Advice Office in Pretoria for assistance.
He told the Sash that although he had no South African identity documents, he had persuaded the officials at the border to send him back to the country of his birth, as they had realised that he knew nobody in Mozambique, and could not answer any of the questions put to him about the area.
After officials from the Department of Home Affairs had rejected an affidavit sworn by Mr M as to his origins, and told him that he would be deported again if he did not leave the country, he obtained further affidavits from his parents, testifying to his status as a South African. These affidavits were lost by Home Affairs.
After the election, in which Mr M voted, thanks to a voter’s card, Mr M’s elderly mother travelled from the Eastern Transvaal and completed a late registration of birth form for him. He now has an ID book and his South African citizenship has been recognised.
It is against this background that the Black Sash is concerned about both the new South African Citizenship Bill and the Aliens Control Amendent Bill introduced by the Minister of Home Affairs and currently being considered by the select and portfolio committees in the Senate and the Assembly.
The South African Citizenship Bill was a totally inadequate piece of legislation bringing forward all the old undesirable features of the past, including uncontrolled powers vested in the minister to make decisions based only on his or her opinion, without specified criteria and without any obligation to give reasons for decisions, and without any right of appeal against a decision. It has been improved by amendments made by the Senate committee but it is still
The Black Sash made submissions to the Senate committee that the Bill should be withdrawn and that a process of public consultation should be instituted to enable proper discussion of what South African citizenship should mean, on whom it should be conferred, and what value it should have. According to the memorandum to the Bill, the only persons consulted in the drafting of the Bill were the directors general of the departments of the interior of the former TBVC states!
Citizenship is inextricably linked to the franchise — the right to vote on an equal basis with all other citizens of the country. This was recognised by the previous government, which stripped eight million black South Africans of their citizenship between 1976 and 1981 through the “independence” of the TBVC states and had the aim of doing the same to all other Africans by persuading the other six homelands to accept “independence”. In this way they would deprive the majority of the right to vote. This was fundamental to the unfolding of apartheid.
There are very serious issues we have to decide upon before we begin legislating for citizenship.
* Dual citizenship.
Should we allow dual citizenship? Should our citizenship, once conferred, be permanent, even if a citizen acquires another citizenship through residence in another country, marriage, or descent from one parent of another nationality? In these days of international mobility it seems anachronistic to disallow dual citizenship.
South Africa’s previous position on this is very unclear. Dual citizenship was apparently not allowed, but, at the time of the 1992 white referendum, white permanent residents were urged to take out South African citizenship in order to be able to vote and were assured that South Africa allowed dual citizenship.
South Africans wanting to travel to other parts of Africa on business were allowed to use any other passport to which they were entitled. Many of the citizens of the TBVC states in fact exercised a dual citizenship after the 1986 Restoration of South African Citizenship Act, when those who were permanently resident in the so-called white areas were able to claim their South African citizenship back and use a South African ID for all purposes except when visiting family in the homelands, when they carried TBVC travel documents for their protection.
* The franchise.
One of the grounds upon which the Minister may deprive a person of South African citizenship in the new Bill is if that person has made use of the franchise of another country where she or he has citizenship. This is quite extraordinary when our own franchise is extended to people who are permanent residents in, but not citizens of, this country.
If we do allow dual citizenship, to whom should the franchise be extended? To all citizens wherever they may be? Or to those citizens who are resident in South Africa at the time of a referendum or election? Should a citizen who is not resident in the country be able to vote in an election?
There was much argument about this when the British government extended the franchise to British citizens who were permanently resident elsewhere in the world on the assumption that such voters would, on the whole, support the ruling Conservative Party. The arguments surrounding that made the question of the franchise a party-political debate, which it should never be.
The franchise should be protected in the Constitution, together with a specification regarding which citizens may be excluded in what circumstances.
* Statelessness.
The interim Constitution states that “every child shall have the right to a name and nationality as from birth”.
No one knows how many undocumented migrants from other Southern African countries are in South Africa at the present time. It is certain that many thousands will continue to come and work here in the foreseeable future.
Children will be born to them and, because our legislation pays no attention to the citizenship provisions of our neighbours, many of those whose parents do not have either South African citizenship or permanent residence are and will be born stateless. An amendment to the Bill is being considered by the committee, whereby these children may be granted citizenship if their births are registered in accordance with the Births and Deaths Registration Act.
This, of course, supposes that these parents will become aware of this provision, and that those of them who are “illegal aliens” will approach officials to register these births.
This is an intolerable situation and its rectification requires examination of the international instruments on statelessness, radical rethinking of the Aliens Control Act and our policies regarding the movement of citizens of the Southern African Development Conference countries across international borders, as well as provision in citizenship legislation to ensure that the right to a nationality is accorded to all children born
These are only three of the major and complicated questions we have to decide upon before we begin to draft new citizenship legislation. There are many more. We need public debate and discussion within South Africa, and discussion in the international forums to which we now belong.
Is our citizenship to continue to be exclusive? Or are we going to lead the rest of the world in accordance with that new openness and inclusiveness of which we are justly so proud?