Chairperson, hon Ministers and members, it is befitting that we introduce the South African Citizenship Amendment Bill against the background of the country's national heritage celebration of all her people, black and white.
The Constitution of the Republic states that there is a common South African citizenship; that all citizens are equally entitled to the rights, privileges and benefits of citizenship; are equally subject to the duties and responsibilities of citizenship; and that national legislation must provide for the acquisition, loss and restoration of citizenship.
The main objective of the Citizenship Amendment Bill is to amend provisions of the South African Citizenship Act. In this regard, the Bill will, among other things, ensure that a child born to a South African parent inside or outside the country is a South African by birth, as long as the child is registered according to the South African law. A child born of non-South African parents but adopted by South African parents is a citizen by descent.
A child born of non-South African parents in South Africa and who lives in South Africa until the age of 18 years, may apply for naturalisation. Whilst that child is a minor, it should retain the citizenship of its parents.
A child born in the Republic of South Africa that has no claim to any other citizenship will be given South African citizenship in accordance with international law and practice.
Another important amendment is the requirement that foreign nationals who have acquired the status of permanent residents and who wish to obtain a certificate of naturalisation must have been resident in the country for five years instead of four years.
In terms of dual citizenship, a foreign national who wants to acquire South African citizenship and whose country of origin does not permit dual citizenship, would have to renounce their original citizenship before they get South African citizenship. This is a principle of reciprocity because it is not tenable for you to be a dual citizen of countries where one country does not allow dual citizenship. That is the situation we have now and we want to correct that.
The Bill also provides for the withdrawal of citizenship; with the exception of citizenship by birth because if you're a citizen by birth, it is your birthright and nobody can take it away. So withdrawal of citizenship refers to citizenship by naturalisation. In the case where a citizen participates in a war under another country's flag whilst the South Africa law has stated that it is against that war, such person will lose his or her their citizenship. [Applause.]
The Bill also makes provision for stiffer penalties against those who are implicated in the fraudulent acquisition of South African citizenship and identity theft. This is important because at the moment the courts take identity theft very lightly. Nobody goes to jail for identity theft and yet it causes so much grief and harm, both to individuals and the country.
I would like to thank the portfolio committee and its chair, hon Ben Martins, for dealing with this amending Bill expeditiously and efficiently. I hope that the House will give its full support to this Amending Bill as part of reclaiming and protecting our common heritage. Thank you. [Applause.]
Hon Speaker, hon members, in general, this Amending Bill must be commended for its progressiveness, humaneness, and simplification of the law as well as for being relevant and in line with current developments.
It is progressive because, among other things, it cures the notion of secondary citizenship that was implicitly created by citizenship by descent as provided for by the principal Act.
As black South Africans we know how cruel and undignified it is to be regarded as a secondary citizen in one's own country. The less I talk about apartheid and its consequences for South Africans, and black South Africans in particular, the better, so this progressiveness must indeed be commended.
The Bill is also humane because it recognises that the reference to human beings as aliens is unnecessary and derogatory. An alien is something that is indescribable as it is something which does not belong to this world. This can be likened to the Sesotho word "kgokgo", and this "kgokgo" is often referred to when we want to frighten children. It is really scary.
A typical example of the Bill's simplification is contained in the new section 5(1)(c). Before this amendment, section 5(1)(c) in the principal Act read, as follows:
The Minister may, upon application in the prescribed form, grant a certificate of naturalisation as a South African citizen to any alien who satisfies the Minister that he or she is ordinarily resident in the Republic and that he or she has been so resident for a continuous period of not less than one year immediately preceding the date of his or her application, and that he or she has, in addition, been resident in the Republic for a further period of not less than four years during the eight years immediately preceding the date of his or her application. Speaker, I am sure you'll agree with me that this subsection is long enough to cause confusion. But that is not all. The different timeframes stipulated therein add to this confusion. Firstly, there is a reference to one year. Then there are references to four years and also eight years.
The interpretation of these timeframes has, in many instances, led to miscalculations of the period and ultimately granting citizenship by naturalisation too early.
Now, the amendment talks of only one timeframe - five years. It is as simple as that. This will make the calculations as easy as it can be.
These plausible developments are in line with the ANC's aim of making the lives of our people better and it does not get better than in the form of citizenship.
The moral vision contained in the 1923 ANC Bill of Rights says that the right to be a full human being in South Africa includes the right to full and equal citizenship without discrimination on the basis of race, class or creed; and the right to full and equitable participation in the economic growth and development of the country.
Citizenship also goes with the infinite feeling and advantage of belonging; it attaches a high emotional value to being a citizen. It is not easy to get a sense of belonging to a country unless one is a citizen thereof, whether by birth or adoption.
Citizenship was equated by Virginia Leary, a distinguished American human rights lawyer and activist, with connoting -
... a bundle of rights which involve, primarily, political participation in the life of the community, the right to vote, and the right to receive certain protection from the community, as well as obligations.
Citizenship status, therefore, carries with it both rights and responsibilities. That is why the right to citizenship is entrenched in our Bill of Rights in the Constitution. Section 20 of the Constitution provides that "no citizen may be deprived of citizenship." However, one must note the use of the word "may". This presupposes meeting some requirements in the Republic, otherwise one can lose his or her citizenship.
Therefore matters of citizenship should not be treated lightly. That is why the declaration of allegiance is required from a foreign national who applies for and is granted South African citizenship. That is why there must be clear and unambiguous laws that regulate all aspects of citizenship.
All these are catered for by the language used in this Bill. In addition to the deletion of the word alien, Latin terms like mutatis mutandis are also removed in section 10. This is a progressive move since Latin phrases like this are difficult to comprehend, especially if one is not a lawyer. This reminds me of one court interpreter who had difficulty in interpreting this term and ended up saying mutatis mutandis means ...
... ma uthanda noma ungathandi. [Uhleko.][... whether you like it or not. [Laughter.]]
We already have enough difficulty with English; we don't need to compound the difficulty by using Latin phrases as well. So this move must really be commended. However, I realised that, in section 17 of the principal Act, the phrase prima facie still appears. As such, I will recommend that it be dealt with the same way as mutatis mutandis.
Having said this, I however have a small concern that I would like to raise. This is under the definitions of the word marriage. Marriage is defined to include civil marriage, customary marriage as well as civil union. I would have liked this definition to be extended to include the phrase "married shall have a corresponding meaning", just for good or near accurate measure.
This is more so because the civil union, in terms of the Civil Union Act, Act 17 of 2006, is not necessarily a marriage. The Act allows such a union to be solemnised either as a marriage or civil partnership. I would therefore suggest that section 1(a)(3)(a) of the amendment include the words "civil union" between the words "customary marriage" and "a marriage concluded in terms of the laws of a foreign country". This, again, is for good or near accurate measure.
However, these concerns are not a train smash as the objectives of the Bill could and will still be realised, regardless.
Ke rata gape go leboga mma wa rena, Mma Nkosazana Dlamini-Zuma, ka go ?oma le rena gabotse sehlopheng sa rena sa go ithuta. Re re a re t?weleng pele ka lenaneo la dipoelo leo o re filego lona. [I would also like to thank our mother, Dr Nkosazana Dlamini Zuma, for co-operating with us in our learning team. We have to continue with the outcomes programme that you gave to us.]
The ANC therefore supports this amending Bill. [Applause.]
Chairperson, hon Minister, Deputy Minister and members, the Bill has brought about some significant changes which we supported so keenly in the committee. Its intentions are good; it is purpose driven. However, there are serious concerns that make this Bill unattractive. The DA has made profound contributions and some positive changes, which were ignored by the committee and the department.
Submissions by the public, for example, the Lawyers for Human Rights, the Law Society of South Africa and others, were ignored during the process of public hearings. This would have advised them to try to mitigate some of the challenges that make this Bill a very unconstitutional one. These include, but are not limited to, the provision that any child born of a parent or parents, who are not South Africans, cannot become a legitimate citizen until he or she is 18 years old - I will explain this hon Minister. This is in complete contradiction to the Constitution of the country.
We have proposed the qualifying threshold to either be 17 or 16 years of age, otherwise this becomes discriminatory. A child born in South Africa, whether it's a foreigner or a local, automatically becomes part of the society. Those children who are born by foreigners become friends with locals. They go to the same preschool, primary school and, eventually, to the same secondary or high school.
Why must this child be treated differently from other children? This does not assist our endeavour to integrate our communities. This Bill is in contempt of section 10, 11 and 20 of the Constitution of the Republic of South Africa, and that is Act 108 of 1996.
Ukukhumbuza wena ke, mhlekazi, ngemvume yakho Sihlalo, sinoMgaqo-siseko ekufuneka ukhusele wonke umntu okweli lizwe. [To remind you Sir, through you Chair, we have a Constitution that is supposed to protect everyone who is in this country.]
This clause is also in conflict with sections 20, 28 and 29 of the Constitution of the Republic. It is also in conflict with the Births and Deaths Registration Act and the Children's Act. [Interjections.]
The most problematic of them all is the proposal that any South African citizen shall cease to be a South African citizen if he or she engages in a war under the flag of a country that the government of the Republic does not support.
I want to clarify one thing here, Minister. You said that South Africans will not be affected, but those who obtain their citizenship through naturalisation would be affected. In fact, section 6(1) of this Bill speaks to all people. It is only on the appeals that those who are South African can appeal, but those who are naturalised lose their citizenship completely. That must be corrected.
Does the South African government officially support any wars? Do we have a list of wars that we support or not? At what stage is the support or otherwise proclaimed? How will the general public know that such wars are being supported or not by the Republic? Chefs, nurses, doctors, security personnel, who work anywhere else in the world, are in danger if this Parliament passes this Bill.
I do not know why this Act should belong to Home Affairs in any case. This matter could be addressed by the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, Act 27 of 2006.
If this Bill goes through as is, it will render citizens stateless because some have renounced their citizenship of the countries where they come from by choice, because they want to be South Africans. Why should we continue to suppress and penalise them for choosing this country? [Interjections.]
We have sought some legal opinion and it has advised that this Bill is unconstitutional. [Interjections.] This negates the good work that Home Affairs does, and further entrenches the laws of the dark days of apartheid. To mitigate such a notion, the Minister must take my advice and withdraw clause 6 of the proposed Amending Bill. Clause 6 of the principal Act should rather take precedence so that ...
... singalungisi lo mhlathi, uhlale ulola hlobo ululo ... ndiyakucenga, Mphathiswa. [Kwaphela ixesha.] [Kwaqhwatywa.] [... we do not amend this clause and leave it as it is. I appeal to you, Minister.] [Time expired.] [Applause.]]
Before I call the next speaker, hon members, I understand the fatigue, but the way you drown speakers is not really fair, please. I do understand that we all want to get out of here.
Chairperson, at the outset of the Second Reading debate, Cope would like to express its serious concern about the constitutionality of section 6 of the South African Citizen Amendment Bill.
It would appear that section 6 is in conflict with section 20 of the Constitution which stipulates that, and I quote:
No citizen may be deprived of citizenship.
This makes citizenship an inalienable right, therefore, Cope calls on the President to meet his constitutional responsibility and use section 79, Assent to Bills, of the Constitution of South Africa to send it back to the National Assembly for correction or to the Constitutional Court for a decision.
He should not assent to it and sign the Bill until he has such a decision. Should the President fail to do this, then Cope will have no option but to abstain from voting.
However, the remainder of the Bill addresses issues such as husband, wife and spouse. Couples married by customary or foreign laws are now recognised. Defining a major as one who is 18 years old and not 21 years old will mean that younger people will have to take up adult responsibility much earlier than before.
The Bill also addresses the issue of people giving birth in transit on a ship or plane. The place of birth of such a child will be determined by where in the world the carrier is registered. A woman giving birth, for example, to a child on her way to Cuba in a Russian aeroplane would register the child as having been born in Russia.
Foreigners who receive exemption from visa requirements and who are granted the unconditional right to entry for an unspecified period in terms of 10 (a) of the Immigration Act and section 31(3) (a) or (c) of the same Act, will be able to take up permanent residency in South Africa because they would have been determined to have been lawfully admitted to the Republic.
As such, children born to a married couple where at least one parent had been lawfully admitted to South Africa will be regarded as South African citizens. The converse will also apply.
The Bill gives powers to the Minister to recognise both customary marriages as well as marriages concluded in terms of the laws of a foreign country, provided that the Minister is satisfied with the information documented by both partners. Where the Minister is not satisfied she can call for further information.
The issue of naturalisation is also dealt with in detail. Under exceptional circumstances the Minister may grant a certificate of naturalisation to an applicant who does not comply with subsection 1 (c) relating to residence in South Africa. We will have to keep a watchful eye on this.
A bit of tightening of the principal Act occurs in section 7 of the Bill. Persons deprived of citizenship under this section or section 9, will have to surrender their certificates or face possible imprisonment for up to five years and possibly a fine.
However, corrupt officials will always find ways of using these provisions in ways not intended by Parliament. [Time expired.] The Minister should be alert to these challenges and should set monitoring systems in place to guard against fraud. I thank you.
Chairperson, hon Minister, I must admit that my caucus has been disadvantaged in the sense that our member who serves on the committee is out of the country; he is in Kenya.
This morning, while compiling the speech for this debate, we were under the impression that the withdrawal of citizenship applies to all categories of citizens. In that sense we were going to object.
After your explanation, hon Minister, that this withdrawal of citizenship only applies to those who got their citizenship through naturalisation, I think that's a fair argument. [Applause.]
Standing where I am, I want to differentiate between what we say in ...
... abomsinsi wokuzimilela nalaba bokufika.[... regard to the citizens and the foreigners.]
In the old adage you cannot really bite the hand that feeds you or that has fed you. For this reason, I had to quickly consult my seniors to ask what stand we are going to take as I will be standing at the podium. We are not going to oppose this Bill. I thank you. [Applause.]
Chairperson, hon Ministers, Deputy Ministers and hon members, sometimes I get so disappointed to hear a DA member pretending he is not one of the committee members and also that he is not a citizen of this country. The DA members at times behave as if they are refugees. [Interjections.]
Order, please!
All we are asking is that you bring solutions instead of arguments and that you do not speak as if you are not on the committee.
The Strategy and Tactics of the ANC states that South Africa has entered its second decade of freedom with the strengthening of democracy and acceleration of the programme to improve the quality of life of all the people. Steadily, the dark night of white minority political domination is receding into a distant memory. Yet we are only at the beginning of a long journey to a truly united, democratic and prosperous South Africa in which the value of all citizens is measured by their humanity, without regard to race, gender and social status.
The Freedom Charter's assertion that South Africa belongs to all who live in it, black and white, came out of a conscious realisation that the apartheid oligarchy was gradually depriving the majority of the people of their citizenship rights. The effect of the now abolished Group Areas Act, and similar draconian laws, was to push Africans to 13% of the land according to their ethnic groups.
In essence, this meant that African people had the status of foreigners in 87% of the land; and to ensure monitoring of their movements, Africans had to carry the "dompas" everywhere they went. Failure to carry the "dompas" and special work permit resulted in imprisonment, flogging, or labour indenture.
As the ANC, we do not take the right to South African citizenship lightly. In it, we behold the gushing blood of the victims of the Sharpeville massacre. In the right to South African citizenship, we behold Comrade Charlotte Maxeke, who led a women's march against the carrying of oppressive pseudo-identity documents in our motherland.
Hon members, the new democratic dispensation does not seek to limit access to citizenship for legitimate and patriotic South African people, but to regulate how citizenship is acquired, kept and lost. Citizenship comes with rights, responsibilities and obligations. In this regard, it is expected of every citizen that he or she complies with the laws of our country.
However, some people can obstinately engage at an international level in activities that compromise the Republic, like wars which the Republic does not support. The Republic has been compromised in recent times by citizens who engage in wars not supported by the Republic and, in extreme cases, by mercenary activities. [Interjections.]
Just shut up and listen!
Chairperson, our Constitution provides that no right is absolute ... [Interjections.]
On a point of order, Chairperson.
What's the point of order?
Is it parliamentary for the member to say that we must shut up? [Interjections.]
Hon members, please let's be civil about some of the things. I don't have to say it's unparliamentary, but let's be civil about how we address each other. Continue, hon member.
Thank you, Chairperson. Our Constitution provides that no right is absolute and thus every right is subject to limitations in an open society based on human rights, equality and freedom - if it is reasonable and justifiable to do so.
In this regard, it can be argued that those who are on the international stage engaging in wars that are not in the interest of the Republic and thus not supported by it, do not deserve to keep their citizenship, whether it is citizenship by birth, descent or naturalisation.
This is even more so with citizenship by naturalisation, as the person would have first been a foreigner, but through complying with the requisite prescriptions, was accorded citizenship by naturalisation. Such a person would, on a balance of probabilities, be a security risk and the state cannot be bound to rewarding him or her with the status of citizenship by naturalisation.
The principal Act requires, among other things, that the applicant for naturalisation should have been a resident of the Republic; be of good character; have adequate knowledge of the responsibilities and privileges of South African citizenship; be a husband or widower of a South African citizen, or a wife or widow of a South African citizen; and make a declaration of allegiance.
Hon members, the Bill further adds that the applicant should be a citizen of the country that allows dual citizenship and where dual citizenship is not allowed, the applicant should renounce the citizenship of that country.
Immediately before the 1994 and the demise of apartheid, there was an exodus of a number of South African citizens to other parts of the world. Some of them have returned to South Africa whilst keeping their passports and extending their citizenship of the countries they had emigrated from.
This situation tends to be dubious in terms of the allegiance of such people to the South African flag. It is important that those who desire citizenship in different parts of the globe be tested for allegiance. To subject dual citizens to the acid test of the requirement to renounce citizenship, where dual citizenship is not permissible, is bound to reveal the true allegiance of the dual citizen.
The Bill creates a new category of citizenship by naturalisation by providing that a child born in the Republic of parents who are not South African citizens, or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major if he or she has lived in the Republic from the date of his or her birth to the date of becoming a major.
In keeping with the imperative to treat the interests of a child as being of paramount importance, children falling within this category shall, even if their parents have not been admitted into South African citizenship, have an opportunity to become naturalised South African citizens, provided that their births have been registered in accordance with the Births and Deaths Registration Amendment Act, Act 1 of 2002.
A child whose parents' nationality is known and is born in South Africa, is different from a foundling whose parents are not known and who could not have adduced evidence to prove that he or she was born in the Republic. It would be erroneous to naturalise foundlings with the presumption that they were born in South Africa. This would open government up to acts of human trafficking with the view to naturalising children in order to gain access to the South African social security system through them.
It could also happen that some non-nationals, who are already in South Africa illegally, would manipulate the system to ensure a better future for their children, whom they brought with from their countries, by helping them to apply for citizenship through naturalisation as if they were foundlings.
Given the socioeconomic instability obtaining in most of our neighbouring countries, how they have pushed the immigration envelope, and how the Children's Act defines "child", it is not unthinkable to imagine that many would come to South Africa at a relatively mature age and apply for citizenship by naturalisation. This would mean that in the next five years our population would have grown drastically not because of organic processes, but because children from other countries would have reached the age of majority and as citizens would be eligible to compete for scarce resources with citizens who in fact were born in South Africa.
A burden would be put on our fiscus, and we would be unable to meet the obligations we have to our people because the more services are rendered, the more the demand would increase. The more houses we build, the more we would have to build; and even if we demolish informal settlements constantly, they would invariably mushroom.
Hon members, the ANC's manifesto identifies income, inequality, and extreme poverty as challenges that face our nation in the current conjuncture. In this regard, many of our people continue to live in abject poverty and the income gap between the highest and the lowest paid continues to widen unabated ... [Interjections.]
On a point of order, Chairperson.
Hon member, just wait a bit.
Chairperson, on a point of order: Can I draw your attention to paragraph 62 in the Rules of Parliament that states that a member shall as far as possible refrain from reading his or her speech ... [Interjections.]
But he or she may refresh his or her memory by referring to notes. The member has been reading her speech throughout.
Hon member, that is not a point of order really. I am aware of that Rule, but there has been a convention in this House that members will read speeches and we haven't ruled that out. It's a convention, and I am aware of it. Continue, hon member.
The ANC has always prosecuted the struggle for national and economic emancipation and it is even at this time, more so than ever before, that our people still look to the ANC for leadership, guidance and support. That is exactly that we are doing.
Therefore, it is a fundamental imperative that South African citizenship be guarded with extreme caution and eyes like a hawk, so as to enable our government, in general, and the Planning Commission, in particular, to successfully plan our collective development to catapult us into the future our people yearn for. It should, however, not be inferred that we do not recognise the contribution that legitimate immigrants have made and continue to make in the interests of our beloved country and our people, united in our diversity.
We continue in our role as a disciplined force of the left to promote progressive internationalism and to ensure that peace and friendship abound. I am convinced that together we can definitely do more. I thank you. [Applause.]
Chairperson, I'd like to thank the ANC for supporting the Bill. I also just want to emphasise that, indeed, it is important to pay attention to language, including references to gender, and also not to call people "aliens" as the law presently does. There are all the other things they've said, but I won't go into that.
I just want to clarify a few things, particularly for the DA, and maybe for Cope too. First of all, I don't understand when hon Mnqasela says that they don't support the part that says that a child who is born in South Africa and lives in South Africa until he reaches his majority has an option of becoming a South African citizen. Because at the moment there's nowhere we say unless it is 14 years or 16 years of age that we won't support it.
Why is it 18 years old? Eighteen years is the legal age of majority in this country. There must be logic in what we say. That's the reason why we chose 18 years, but that is not there in our law at the moment, so we are enabling those children to have that choice.
The second thing is that the Department of Home Affairs is the custodian of citizenship laws in the country. That is why it is under Home Affairs - I don't know what he wants it to be under. Let me just explain: If you get naturalisation and you then go to war and fight under a different flag, when this country has said, for whatever reasons, that it is against that war, it would mean you have made a choice. So why should we not take away your citizenship? I don't understand that argument.
We wrote the Constitution and I don't understand why it is unconstitutional, but if it has to be tested, really, we are not talking about your birthright, we are talking about somebody who is naturalised, who makes a choice and goes and carries a gun under the flag of another country. That's what we are talking about and that must be made very clear because we mustn't cause confusion.
I just want to clarify this for the DA because I don't want any misunderstandings. Today you've been a bit destructive. I thought you were the DA, Democratic Alliance not "destructive agency". Thank you. [Applause.] [Laughter.]
Chairperson, I propose that the question stands over.
I didn't hear, hon member.
Chairperson, I move that the question stand over.
Hon Deputy Chief Whip, may you explain please?
Chairperson, in terms of the Rules, 201 members are needed in order to pass a Bill.
The reason is the quorum? Hon members, please bear with us. In terms of Rule 76, Decision of Questions Postponed, the Chair can use his own discretion to allow the question to be postponed. I so do. [Applause.]. Thank you, hon Ellis, for understanding.
Debate concluded.
Decision of Question postponed.