GOVT CHALLENGED OVER RIGHT TO PASS CITIZENSHIP BY BIRTH

MBABANE - Government has been taken to court over the legislation that prevents women, whose children are fathered by foreigners, from transferring citizenship to their children through birth.

It is argued that depriving Eswatini women the right to pass citizenship by birth increases the risk of statelessness and offends against the Constitution.
The applicant in this matter is Mandisa Ziphelele Machakata (born Zwane) and she is married to a Zimbabwean national, Norman Farai, who is a resident of Eswatini. They got married 16 years ago and three children were born of the marriage. The children were born in Eswatini. However, according to Machakata, the children are not eligible for citizenship by birth in Eswatini, because their father is not a liSwati.

Urgent

Machakata has since filed an urgent application at the High Court. She is seeking an order declaring Section 5 (2) and Section 7 of the Eswatini Citizen Act 14 of 1992 to be constitutionally void and being inconsistent with, among others, Section 20 and 28(1) of the Constitution of Eswatini.
She also wants the court to declare that, notwithstanding Section 43(1), 43(2) and 43(3) of the Constitution, women and mothers who, after the commencement of the Constitution, were Eswatini citizens, may confer citizenship by birth to their children in view of Sections 20 and 28(1) of Constitution.  

She argued in her application that depriving Eswatini women the right to pass citizenship to their children by birth increased the risk of statelessness.
Respondents in the matter are the deputy prime minister, minister of Home Affairs, Eswatini Citizenship Board, minister of Justice and Constitutional Affairs, Commission on Human Rights and Public Administration, Speaker in the House of Assembly and the attorney general (AG).

Commencement

The applicant is further praying for an order declaring that women or mothers who, after the commencement of the Constitution, were Eswatini citizens may confer citizenship by birth onto their children. Section 5(2) of the Citizenship Act provides that: “A person born in Swaziland (Eswatini) after the commencement of this Act is a citizen of Swaziland by birth if at the time of his birth his father was a citizen of Swaziland.”
It was her contention that citizenship in Eswatini was entrenched in the Constitution and in statute (Eswatini Citizenship Act 14 of 1992).
Section 5(2) of the Eswatini Citizenship Act (the Act) provides:  ‘A person shall be a citizen of Swaziland if his father is or, but for his death before the commencement of this Act, would have been a citizen of Swaziland by virtue of Subsection (1).

In Section 7(1), the Act provides that: A person born in Swaziland after the commencement of this Act is a citizen of Swaziland by birth, if at the time of his birth his father was a citizen of Swaziland, under this Act. (2) A person born outside of Swaziland after the commencement of this Act is a citizen of Swaziland by descent if at the time of his birth his father was a citizen of Swaziland. (3) A person born outside Swaziland who becomes a citizen by virtue of Subsection (2) shall cease to be a citizen if his father was also born outside Swaziland; unless, within one year after he attains the age of majority (or within such extended time as the minister may allow) he notifies the minister in writing that he desires to retain his citizenship.
(4) Where a child born outside of marriage is not claimed by his father in accordance with customary law and his mother is a citizen of Swaziland, the child shall be a citizen of Swaziland by birth.

Machakata stated that the abovementioned provisions, and others, made it clear that citizenship was conferred by birth only when the father was a liSwati. She pointed out that citizenship was not conferred by the mother unless she and the father were unmarried and the father, per Swazi Law and Custom, had not claimed the child. “I wish to state that the above captioned constitutional provisions are discriminatory against women, in so far as they limit passing of citizenship to children, to men. As a result, women have problems regarding passing on of their citizenship to their children born in or out of marriage with foreign men,” she argued. The veracity of these allegations is still to be tested in court. The respondents are yet to file their answering papers.

Experienced

Machakata informed the court that Eswatini women and their children born in or outside marriage with foreign men experienced a lot of frustration in accessing certain State resources and rights, which were meant for all citizens. She said local women were also unable to pass their citizenship to their foreign husbands, who were given the same status as any other foreigner. Most notable, according to Machakata, was the fact that it was only the father who could confer citizenship on his children. “A Swazi mother cannot confer citizenship on her children unless a Swazi citizen fathers them,” she added.

She further informed the court that the Act also discriminated against Eswatini women on the basis of marital status. According to the applicant, local mothers married to foreign fathers may not pass their Eswatini citizenship to their children at birth, but unmarried local mothers, whose child was not claimed by the father, according to customary law, may pass their citizenship to their children at birth. Machakata submitted that the challenged provisions also appeared to discriminate on the basis of ethnicity to the extent that being an ethnically liSwati and being a liSwati were frequently aligned. “Citizenship can and should be based on a variety of connections or links to Eswatini, but under the current law, a mother’s connection or link to Eswatini is insufficient to pass citizenship at birth.

“This discrimination under Chapter IV is clearly in conflict with the Bill of Rights (Chapter III), hence the application that the provisos be hereby harmonised.”  The applicant argued that Section 28(1), read together with Section 14(f) of the Constitution, prohibits discrimination on the grounds of sex and gender in the political, economic and social spheres and create legal equality for the first time between men and women. She said Section 20 guaranteed equality before the law, ensuring that ‘a person shall not be discriminated against on the grounds of gender... ethnic origin, tribe, birth... or social... standing’. Section 44 of the Constitution, however, restricts the right of emaSwati to pass citizenship depending on whether the liSwati parent is the mother or the father.

Section 44 of the Constitution makes no reference to the status of the mother, except in Subsection 4 where her Eswatini citizenship only becomes relevant to the child should the unmarried father fail to adopt or claim the child under Swazi Law and Custom.  She told the court that through her application, she implored it to ensure that her children and subsequently all other children in Eswatini, could derive nationality not only from the father, but also from the mother.  The applicant said this was the spirit and tenor of the Bill of Rights in the Constitution of Eswatini.
The applicant submitted that Section 20 of the Constitution protects and guarantees equality before the law. Machakata is represented by Human Rights Lawyer Sibusiso Nhlabatsi. The matter will be heard by Judge Ticheme Dlamini today.

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