“According to the practice of states, to arbitral and judicial decisions and to the opinion of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the judicial expression of the fact that the individual upon whom it is conferred, either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with any other State.” – International Court of Justice, Liechtenstein v Guatemala, Second Phase, Judgement delivered on the 6th of April 1955.
In a landmark decision passed on the 29th day of April 2022, the High Court of Botswana declared Sections 15 (1) and 15 (4) of in the Citizenship Act [Cap 01:01] (the Act) to be unconstitutional and accordingly struck down.
This essentially means that holders of dual citizenship will no longer be required to renounce one citizenship at the age of 21 or risk losing their status as citizens of Botswana. The decision to strike down the requirement in the Act for renunciation followed the determination by the court that such a provision was discriminatory and unfairly restrictive to the rights to freedom of movement and association of the holder of dual citizenship.
The decision by the court is welcome news to many, as the country’s failure to recognise dual citizenship after the age of majority has been attained, has long been lamented, especially in the present era of the ‘Global Village’.
Although the decision by the court effectively means that renunciation will no longer be required, there still remains a gap in the existing legislation as to the process and procedure to be followed by holders of dual citizens on reaching the age of majority, which is yet to addressed.
On the other hand, the court also struck down the protection offered to citizens married to non–citizens, whose countries of origin confer automatic citizenship to spouses of its citizens, to retain citizenship of Botswana in the absence of any act to acquire citizenship of his or her spouse. This decision was on the basis that the protection offered by Section 15 (4) of the Act was discriminatory to unmarried holders of dual citizenship who are required to renounce one citizenship at the age of 21 or risk losing their citizenship of Botswana.
The Ministry of Labour and Home Affairs, in a notice to the public dated 6 June 2022, confirmed that the ministry was still in the process of updating the legislation and the necessary processes following the decision, and that the public would be advised once these were settled. It remains to be seen how the government will then address the issue of dual citizenship in the context of the decision by the court in Mathe and Others v The Attorney General. Akheel Jinabhai & Associates has an expert team of attorneys that can guide you through what the decision in Mathe may mean for you and your family.
Juwairiyyah Maher is an Associate in the Litigation, Arbitration and Dispute Resolution
Department. Juwairiyyah specializes in litigation, corporate commercial and intellectual property.
She also has experience in debt collection and arbitration. Juwairiyyah is admitted to practice as
an Attorney, Notary Public and Conveyancer of the High Court of Botswana.