Augustinus v Minister of Home Affairs and Immigration (A 279/2007) [2008] NAHC 82 (01 August 2008);

Group

Full judgment
S v BONIFATIUS KONSTANTINOS


                                                      CASE NO.: A 279/2007


LOUIS AUGUSTINUS

and

THE MINISTER OF HOME AFFAIRS AND IMMIGRATION

MANYARARA, AJ

01 AUGUST 2008

SUMMARY

Namibian Citizenship Act 14 of 1990 section 5(1)(g) - Application for Namibian citizenship by naturalisation - Applicant must renounce citizenship of any other country - Proof of renunciation.

Angolan citizen applied for Namibian citizenship by naturalisation – He delivered copy of oath of allegiance to Namibia and declaration of renunciation to Angolan Embassy – Official in attendance refusing to acknowledge receipt of the documents. - Application to compel respondent to issue Certificate of Naturalisation dismissed for lack of proof of renunciation.

Quaere: Whether review of respondent’s decision possible under section 5(7) of Act.



CASE NO. A 279/2007

IN THE HIGH COURT OF NAMIBIA

In the matter between:

LOUIS AUGUSTINUS APPLICANT

and

THE MINISTER OF HOME AFFAIRS AND IMMIGRATION RESPONDENT

CORAM:            MANYARARA, A.J.
Heard on:                 19 May 2008
Delivered on:    01 August 2008
_____________________________________________________________________________________

JUDGMENT
MANYARARA, A.J.:         [1]      This is an application to compel the respondent to grant a Certificate of Naturalisation to the applicant within one month of the Order of this Court.

[2]      The application is opposed.



[3]      A preliminary issue related to an application by the applicant for condonation of the late filing of his heads of argument which was unopposed and was granted without more.

[4]      The facts deposed in the founding affidavit are that the applicant was born in Angola on 9 December 1971. His parents brought him to Namibia in 1974 when he was three years old and he has resided in the country since then. On 18 November 2003 he applied for Namibian citizenship by completing the prescribed application forms setting out his particulars. The Ministry of Home Affairs (the Ministry) acknowledged receipt of the application, by a letter which advised the applicant to enquire about the outcome of his application within 180 days.

[5]      As advised, the applicant enquired about his application regularly and he averred that sometime during September or October 2005 certain unnamed officials of the Ministry advised him that his application was successful and the Certificate of Namibian Citizenship would be issued after he took the oath of allegiance to Namibia and renounced his Angolan citizenship. On 6 October 2005 he signed the prescribed oath of allegiance to Namibia before a police officer of the rank of Constable in Katutura designated as a Commissioner of Oaths.

[6]      On 7 October 2005 the applicant attended at the Angolan Embassy and handed in a letter written in the Portuguese language addressed to him by the

under secretary in the Ministry. The sworn translation of the letter reads as follows:
Dear Sir/Madam
         REGISTRATION AS NAMIBIAN CITIZEN
1.      
In terms of the provisions of Articles 4(4) of the Constitution of the Republic of Namibia, you are eligible to register yourself as a citizen of the Republic of Namibia.
2.      
Before the above mentioned registration, you are required to renounce the citizenship of any other country that you may possess.
3.      
The Ministry would appreciate if you could submit this letter with your passport and/or the identity document when you contact the nearest representative of the country of your citizenship, in order for you to renounce your current citizenship.
4.      
After the renunciation of your citizenship, please present to the Ministry of Home Affairs (Department for Civic Affairs) prove (sic) of renunciation to allow the Ministry to proceed with your registration as a citizen of the Republic of Namibia.
THE UNDER-SECRETARY: DEPARTMENT OF CIVIC AFFAIRS”
The citation of the relevant sub-article of the Constitution as 4(4) is a mistake (probably a typing error). The correct citation is 4(5).

[7]      The applicant avers that the official present at the Angolan Embassy informed him that he was free to apply for Namibian citizenship but the Angolan authorities would not provide him with documentation of renunciation of Angolan citizenship. Thereafter, the applicant made a number of enquiries at the Embassy “with the hope that they might have changed their position and was always informed of the same stance” (sic).


[8]      The applicant then instructed legal practitioners who on 9th and 21st November 2006 addressed letters to the Angolan Embassy repeating their client’s request for a letter of confirmation of his renunciation of Angolan citizenship. On 15 November 2006 the legal practitioners addressed a letter to the Permanent Secretary in the Ministry in the following terms:
         “Dear Sir/Madam
         I/s AUGUSTINUS LOUIS, RENUNCIATION OF ANGOLAN CITIZENSHIP.

We refer to the above matte and hereby submit that we are acting on behalf of Augustinus Louis. (Note that Ministry of Home Affairs and you will be used interchangeably).

We hold instructions that our client applied for Namibian Citizenship as he resides in Namibia since 1971 to date and his application was approved during 2005 even though he applied during 2003.
        
Upon being informed of the approval by the Ministry of Home Affairs our client was presented with a document attached hereto whereby our client had to renounce his Angolan citizenship. Our client completed the renunciation document and according to your instructions issued same with the Angolan Embassy during October 2005.
        
We herewith submit that our client to date has not received any reply from the Angolan Embassy and accordingly approached us to deal with the matter. The Angolan Embassy informed writer hereof that the Angolan Government allows dual citizenship and therefore will not reply to such renunciation.
        
We are of the opinion that our client cannot be forced to remain a citizen of Angola whilst you as the Ministry of Home Affairs approved his application for Namibian citizenship and whilst Namibia as a sovereign country

should apply their own laws and not that of Angola. Our client complied with all your requirements and also renounced his Angolan citizenship; he
was only born in Angola and stayed there for 3 years of his life, the remaining 32 years he lived in Namibia.
        
Kindly find attached hereto a letter from our client and a letter from our office addressed to the Angolan Embassy.
        
We trust that after having regard to all the facts you will grand our client Namibian citizenship documents as the Angolan government will not respond to the renunciation of Angolan citizenship, as pointed out by the Angolan Embassy to writer hereof.
        
We anticipate a prompt reply”

[9]      I note that according to the founding affidavit the applicant has resided in Namibian since 1974 and not 1971 as stated in the above letter but that could well be a typing error.

[10]     The requirements for application for Namibian citizenship are set out in Article 4(5) of the Namibian Constitution (the Constitution) as follows:
Citizenship by naturalization may be applied for by persons who are not Namibian citizens under Sub-Articles (1), (2), (3) or (4) hereof and who:

(a)     
are ordinarily resident in Namibia at the time when the application for naturalization is made; and
(b)     
have so resident in Namibia for a continuous period of not less than five (5) years (whether before or after the date of Independence); and
(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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