Wednesday, October 27, 2021

Batshu quietly created super-citizen class in final days as minister

Six months after deferring the Dual Citizenship Bill because it would have had a negative cross-jurisdictional domino effect on 34 pieces of already existing legislation, the former Minister of Nationality, Immigration and Gender Affairs, Edwin Batshu, quietly added a clause that some have frowned upon.

In terms of the law, an expatriate employee should be in possession of a valid work and residence permit to live and work in Botswana. On February 28 this year, Batshu inserted a new clause to the Immigration (Exemption) Order that reads as follows: “A person who ceases to be a citizen of Botswana by birth or descent by virtue of the provisions of Section 15 of the Citizenship Act is exempt from obtaining a permit in order to reside or work in Botswana provided he or she is in possession of a valid passport or certificates of identification of his or her country of citizenship.”

By way of example, this is what this means in practical terms. With Zimbabwean undergoing an economic nightmare that has lasted well over a decade, there are one too many Zimbabweans who have been naturalized as Botswana citizens. All indications are that the new president, Emmerson Mnangagwa, will do a much better of resuscitating the economy than his predecessor. Resultantly, some of the people who have been naturalized are definitely going to want to go back home and resume their Zimbabwean citizenship. If such people, for whatever reason, want to come back to Botswana to either stay or work, they wouldn’t need a residence or work permit because Batshu has exempted them from such requirements.

The oddity of this development is that the Section 15 in question deals with dual citizenship and is actually so labelled in the Act. What this means is that while the debate on the Dual Citizenship Bill was deferred because it is complicated, the minister circumvented the legislative process by adding a clause that would have had to be included in the proposed legislation after the bill gained passage through parliament. Why the rush? Sources reveal an intriguing theory and details about intense lobbying that has been quietly going on at the Government Enclave.

The theory is that a certain powerful family is getting very worried about what Botswana is turning into. In the event that the country catches fire and it has to flee, it wants all its members to be able to retain work and residence rights upon return. The lobbying that has been going on at the Government Enclave is of influential Batswana with foreign spouses. Take the United Kingdom as an example: a Motswana married to a British would like his/her children to take advantage of low school fees afforded UK citizens while remaining quasi-Botswana citizens. At this point in time, the interests of the two parties intersect.

The analysis of a senior government lawyer in the Ministry of Justice, Defence and Security is that the clause “creates a special class of citizens” and that over time, it would be very easy to add similar clauses across statutes such that these special citizens could possibly end up qualifying for rights reserved for run-of-the-mill citizens ÔÇô like voting. Effectively, they would have become dual citizens while the law still outlaws dual citizenship. Another term that has been used is “backdoor citizenship.” In as far as employment is concerned, this clause has the potential to rub up against what the government intended with its localisation policy.

In the broad sense of making subsidiary legislation (which is what the clause is), Batshu acted within his legal mandate. The law empowers the minister to “exempt any class of persons, specified in the order, subject to conditions, if any, from obtaining a permit, in order to reside in Botswana or work in Botswana.” It is the alleged ill intent behind the clause and apparent the circumvention of the parliamentary process that are problematic.

One quite interesting thing about this development is that while all MPs are familiar with the Dual Citizenship Bill, few appear to be aware of the new clause and none its broader implications. Statutes make provisions for the minister to develop subsidiary legislation without going through parliament and as often happens, not all MP come to learn of the subsidiary legislation which, unlike bills, is not published in the Gazette. Whether an MP gets to see such legislation or not depends on whether s/he is curious enough to read such publication on a regular basis. MPs either don’t have that level of curiosity, are too overwhelmed with work or just don’t read the Gazette on a regular basis. Whatever the case, the result is that they unaware of the development in question.

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