(c)
satisfy any other criteria pertaining to health, morality, security or legality of residence as may be prescribed by law.”
[11]
Sub-Articles (1), (2), (3) and (4) are irrelevant as they relate to citizenship by birth or descent or
marriage.
[12]
Pursuant to Article 4(9) of the Constitution, Parliament enacted the Namibian Citizenship Act 14 of 1990
(the Act) to further regulate the acquisition (or loss) of Namibian citizenship by naturalization. Section 5(1) of the Act provides
as follows:
“The Minister may, upon application made in the prescribed form, grant a certificate of naturalization 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 naturalization;
and
(b)
he or she has been lawfully admitted to Namibia for residence therein; and
(c)
he or she is not a child under the age of 18 years; and
(d)
he or she is of good character; and
(e)
he or she intends to continue to reside in Namibia or to enter or continue in the service of the
Government of Namibia or of an international organization of which the Government of Namibia is a member, or of a person or association
of persons resident or established in Namibia; and
(f)
he or she has an adequate knowledge of the responsibilities and privileges of Namibian citizenship;
and
(g)
he or she is willing to renounce the citizenship of any foreign country of which he or she is a
citizen; and
(h)
he or she has not been convicted in Namibia of an offence specified in the Second Schedule to this
Act.”
[13]
It is not disputed that the applicant meets all of the above requirements, including paragraph (g), as
averred by the founding affidavit. I have included
paragraph (g) advisedly because the dispute centres around the interpretation of this provision.
[14]
Section 5(8) of the Act further provides as follows:
“The grant of a certificate of naturalization shall, subject to the provisions of subsection (7), be in the absolute discretion of
the Minister and he or she may, without assigning any reason, grant or refuse such certificate as he or she deems most conducive
to the public good, and no appeal shall lie from the Minister’s decision.”
[15]
And Section 26 of the Act provides that –
“Subject to the provisions of this Act or any other law no Namibian citizen shall also be a citizen of a foreign country.”
[16]
It will be evident that the Act expressly prohibits dual citizenship and it follows, by necessary implication,
that, in order to satisfy Section 26 of the Act,
an applicant who is a citizen of another country is required to renounce his or her citizenship of that other country.
[17]
In this regard, the applicant avers in the founding affidavit that-
(a) He applied for Namibian citizenship on 18 November 2004 by completing and submitting the pro forma to the Ministry.
(b)
The Ministry acknowledged receipt of the application.
(c)
He attended at the Angolan Embassy and handed in the letter from the Ministry already mentioned
and a copy of the declaration of the
oath of allegiance (to Namibia) and renunciation of Angolan citizenship
(d)
The Angolan authorities have refused to acknowledge receipt of the letter and the other documents
brought by the applicant.
[18]
The affidavit continues as follows:
“I find myself in a precarious situation: I qualify for Namibian citizenship by naturalisation and do meet all the requirements for
that, although the Namibian authorities insists that I have to provide them with written proof from the Angolan authorities that
have indeed renounced my Angolan citizenship. And the Angolan authorities, through their Embassy in Namibia are refusing to provide
such written confirmation.”
[19]
It is against that background that the application to compel the respondent to grant a certificate of
naturalization as a Namibian citizen was launched.
[20]
Both Mr. Tjombe representing the applicant and Mr. Chanda representing the respondent are agreed that
the crisp issue for determination is: Has the applicant “renounced” his Angolan citizenship?
[21]
Much debate was devoted to the meaning of the term “renounce.” In the course of such a debate,
Mr. Tjombe proffered the definition which he submitted appears in Lectric Law Library’s Lexicon and defines the term as follows:
“This term is usually employed to signify the abdication or giving up of one’s country at the time of choosing another. The act
of congress requires from a foreigner who applies to become naturalized a renunciation of all allegiance and fidelity to any foreign
prince, potentate, state or sovereignty, whereof such alien may, at the time, be a citizen or subject.”
[22]
In my view, the definition suffices for the purpose of this application.
On such basis, Mr. Tjombe submitted that –
“……the Applicant has given up his Angolan citizenship (sic) when he presented himself at the Embassy of Angola and provided the officials there with the declaration,
which states in no uncertain terms that – ‘I unreservedly renounce all allegiance and fidelity to any foreign country
or the Head of State of whom I have herebefore been a citizen…….”
[23]
According to Mr. Tjombe, what the applicant has done suffices because the Act does not specify that an
applicant must provide written proof of the renunciation and the respondent’s insistence on such proof is ultra vires the Act.
[24]
In my view, Mr. Tjombe’s argument is over-simplistic. Clearly, if the lawmaker’s intention
was that the delivery of a renunciation declaration to the relevant embassy would be sufficient he would have said so and I understand
this to be the main thrust of Mr Chanda’s argument. He submitted that it is
clear from the founding affidavit that the action on which the applicant relies is that, after accepting that he ought to renounce
his Angolan citizenship before the Angolan Embassy as required by the Act, he handed in a copy of the oath of allegiance to Namibia
and the renunciation declaration and told the Angolan
official in attendance that he wished to renounce his Angolan citizenship. However, the applicant did not or was unable to surrender
his Angolan passport or any other Angolan identity document that may have been in his possession but accepted the word of the unidentified
Angolan official in attendance that he will not receive any documentation from the Embassy
confirming receipt of the Namibian documents he handed in. The applicant realized or must be taken to have realized that he had not
renounced his Angolan citizenship because he kept attending at the Embassy without success and ultimately instructing legal practitioners
to represent him and they also failed to elicit any response from the Angolan Embassy. The applicant, perhaps unwittingly, supports
the strength of the case against him by averring in the founding affidavit as follows:
“I have, in turn also verbally informed the officials at the Ministry of Home Affairs and Immigration of the position of the Angolan
Embassy. The officials at the Ministry have told me in no uncertain terms that I will not be given Namibian citizenship unless I
renounce my existing citizenship (i.e. Angolan) as the Namibian Citizenship Act does not permit dual citizenship.”
[25]
The applicant’s status in Namibia is that of a permanent resident as reflected by the permit annexed
to the founding affidavit issued to him in 1994.
Significantly, though the applicant filed a replying affidavit, he evaded the damaging averment made by the answering affidavit deposed
by the Permanent Secretary as follows:
“It is strongly denied and cannot be argued even by a stretch of any imagination that the Applicant is now stateless (as alleged by
the founding affidavit) as the Applicant has not yet renounced his Angolan citizenship proof whereof is still being awaited. I wish
to reiterate that “LA3” is not written proof of renunciation it is an oath of allegiance to the Republic of Namibia.
The Applicant by constantly referring to the said annexure “LA3” is attempting to mislead this Honourable Court that
he has renounced his Angolan citizenship when not.”
[26]
In the circumstances, I am in agreement with Mr. Chanda that the applicant has failed to make out a case
for the relief he seeks.
[27]
It is for the above reason that I suggested to Mr. Tjombe that the application to compel the Minister
to grant a certificate of naturalisation in the circumstances of this application is ill conceived. It seems to me that in view of
the provisions of Subsection (7) of Section 5 of the Act an application to review and set aside the Minister’s decision not
to grant the certificate might have fared better. The Subsection provides as follows:
“If the Minister has refused an application for a certificate of naturalisation by or on behalf of any person, the Minister shall not
be obliged to reconsider such application at any time, but shall not consider another application for such certificate by or on behalf
of such person until the expiration of a period of at least one year from the date upon which the person in question was advised
of the Minister’s decision, unless the Minister under special circumstances deemed it expedient to consider the application
before the expiration of that period.”
However, I emphasize that I make no ruling on this point and the question is left open.
[28]
Both counsel are agreed that an order for costs would be out of place in this matter and I agree. Therefore,
the application is dismissed with no order for costs.
__________________
MANYARARA, AJ
ON BEHALF OF THE APPLICANT Mr N Tjombe
Instructed by:
Legal Assistance Centre
ON BEHALF OF THE RESPONDENT Mr C Chanda
Instructed by:
Government Attorney
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