Government faces a Unity Dowesque case in which a Motswana woman married to a Norwegian is challenging the legality of forcing her children to choose between the citizenship of either parent before they are adults. Currently children born in Botswana can have dual citizenship but have to choose a single citizenship before attaining the age of 21. In her founding affidavit Sithabile Pauline Mathe explains that she has established homes in Gaborone and Olso, Norway. She got married to Havard Greger Hagen in 2002 in Olso who is a citizen of Norway. There are two children born from the marriage, namely Sunniva Moratiwa Greger Mathe and Jonas Nokwazi Greger Mathe.
Both children were born in Norway and therefore are Norwegian citizens because they were born in Norway and their father is Norwegian citizen. Both children are also Botswana citizens by descent as their mother is a citizen of Botswana. The result is that they both hold Norwegian and Botswana passports. She stated that in the 24th April 1998, an act of Parliament, being the Citizenship Act of 1998 came into operation to the effect that Section 15 provides thus: Any person who is a citizen of Botswana and also a citizen of another country shall upon the attainment of the age of 21 years, cease to be a citizen of Botswana unless such a person has immediately before the attainment of the age of 21 years, renounced the citizenship of that other country, taken the oath of allegiance and made such declaration of intentions concerning residence as may be prescribed.
Mathe said as result, her children are upon attaining the age of 21 precluded from retaining their Botswana citizenship unless they renounce their Norway citizenship. She added that because of this law her children are compelled to abandon their birth land, their mother land, in order to retain the citizenship of their other parent, their father or mother. She said the differential treatment is solely based on their place of origin, on the fact that they originate from two countries – their place of origin. It is solely because of this differential treatment that they are afforded differential treatment. I verily belive that the law is discriminatory either of itself or in effect and therefore against Section 3(a), read with provisions of Section 15 of the Constitution of Republic of Botswana.
“In addition to renouncing their Norwegian citizenship my children are required by law to take the oath of allegiance. With respect to a citizen of Botswana by birth of the same age who holds a single citizenship this requirement does not apply. It is assumed that such a citizen “will be faithful and bear true allegiance to the Republic of Botswana” and that such as a citizen “will preserve and protect and defend the Constitution of Botswana as by law established,” she said.
Mathe said notwithstanding that her children have residents of Botswana for the period of 21 years and have family in Botswana, the law doubts their allegiance and fidelity to the Constitution of Botswana and by so doing renders them second class citizens, wholly attributable to their place of origin- fact of birth they had no choice or control over. She said the law in question violate her children’s fundamental right to citizenship, equal protection of the law under Section 3, equality and non-discrimination under the provisions of Section 3 and 15 and the right against inhuman degrading treatment under Section 7 of the Constitution.
“As their mother, they should not have to choose whether they want the citizenship of the country their mother was born or that of their father’s origin. My own children should never be placed in a situation where they have to make that choice,’ said Mathe.
Replying, the Permanent Secretary in the Ministry of Nationality, immigration and Gender Affairs Molefi Keaja stated that Section 15 of the Citizenship Act of 1998 does not preclude Mathe’s children from retaining their Botswana citizenship unless they renounce their Norwegian citizenship. “They are not compelled to abandon their birth land their mother land in order to retain citizenship of their parent, their mother or father. It should be noted that the generally rights have limits and when one when one has a right, one may choose to exercise that right or not.
In terms of Section 15 (1) of the Citisenship Act, Sunniva and Jonas have a right to enjoy dual citizenship, however that right has a limit since they are required to choose which citizenship they are desirous of retaining immediately before attainment of the age of 21 years. The onus rests upon them to choose between the two citizenship. The law does not make an imposition on them,” said Keaja.
He said since independence Botswana has always sought to restrict opportunities for dual citizenship in respect of persons of full age and capacity. “It is my considered view that renunciation of citizenship by reason of dual nationality is not arbitrary and it is not a violation of the rule of law since is actually provided for in the law (section 15(1). It is therefore lawful since it is done in accordance with the provisions of the law…I also not true that when Sunniva and Jonas renounce any of their citizenship, their right to freedom of movement and association with their mother, friends and relatives stands to be violated and restricted by immigration laws. In terms of section 19 of the Immigration Act, 2010, No. 3 0f 2011, a non-citizen may remain in Botswana for a period of not more than 90 days in any one year,’ he said.
Former High Court Judge and Minister Unity Dow successfully challenged the legality of the 1982 and 1984 amendments to the Citizenship Act. Dow had described the amendments as unconstitutional on the basis of sex discrimination. She successfully argued that the Act was discriminatory because a person became a Botswana citizen if at the time of birth his or her father was a citizen and further if or she was not entitled to any other citizenship. At the time citizenship was only derived from the father at the time but that changed after the Dow Case.