By Dr Ngarikutuke Tjiriange

INTRODUCTION

Some people started talking to me when they realized that I am associated with the Ministry of Home Affairs and Immigration. It was just a genuine and innocent talk, so it appeared to me. I don’t think that there were ulterior motives when the persons said or asked what I am about to say below.

They said they did not understand why the Ministry of Home Affairs and Immigration is concerned about the Angolan refugees in Osire and sending them back to Angola, while similarly there are people who came from Botswana who are in Gam and Eiseb and the same is not done for them.

I was then shocked and surprised that there are people who do not understand the difference between our people who came back from exile in Botswana and refugees from Angola who are being repatriated back to their country of origin.
I tried to explain calmly and now I decided to write this article in order to clarify the issue in more detailed manner to all those who might have the same confusion in their heads.

BACKGROUND TO THE SITUATION IN WHICH THE PEOPLE WHO CAME FROM BOTSWANA T0 NAMIBIA FOUND THEMSELVES
The colonization of Namibia by German imperialists was drastic and tragic. Germany subjected Namibia under military force of arms.

Many people of this country were killed by the Germans and the land was taken from the indigenous people and given to German settlers. This was in line with the German policy that the population should simply be wiped out in order to make room for settler colonizers.

This resulted in numerous battles between the Germans and the people of this country.
Thus, the indigenous people lost their land, their freedom and self-determination, their personal dignity and were forced out of their country by the heavily increased German troops and as a result, many ended up in the then Bechuanaland Protectorate and South Africa.

These were the people who were born in this country by then. Colonial occupation of the country continued unabated for many, many years and most of those who were born in our country then are no longer alive.
However, their offspring found themselves in foreign countries where they were born and had no choice but to take citizenship of those countries in this case, the Republic of Botswana.

After independence in 1990, the new independent government of Namibia and the government of Botswana decided that these people should be permitted to come back to the newly independent country as much as and no matter that they were not born here in the country.

A special arrangement was made for those people to come to Namibia, the land of their fore-parents, although such arrangement was having its own shortcomings and sometimes not legally perfect and correct.

On 28 April, 1993 the Ovaherero from Botswana made history when the first group of close to 7 000 people repatriated, arrived at the Muhembo border post and settled at present day Gam as a temporary settlement.

Those who were allowed by the laws of Botswana to renounce their citizenship of that country and formalize the citizenship of Namibia were accordingly advised to do so and many just did that.
However, their children who were young by that time could not renounce the citizenship of Botswana because the law there does not provide for the people of that age to renounce their citizenship.

Those categories of people are now still having the citizenship of Botswana and yet they are by all intents and purposes citizens of Namibia. Such people are now faced with the dilemma because they cannot easily get the documents of Namibia, which will open opportunities for them in the country for reasons beyond my comprehension.

This situation is in part caused by some unreasonable and difficult if not legally unsound demands and prerequisites set in place by some of our ministries.

Complicating this problem further is the remote and far distance where Gam is situated from points of services, which ought to benefit the Gam community effectively.

It is unacceptable that some service providing ministries do not have offices in the area to attend to the problems of these community hence the people are forced to travel long distances to places such Gobabis and Grootfontein.

NAMIBIAN CITIZENSHIP OF HEREROS IN BOTSWANA

1. Hereros who fled to Bechuanaland Protectorate in early 1900’s were born in today’s Namibia.

The words of Article 4 (1) (a) which stipulates that “whose fathers or mothers would have been Namibian citizens at the time of birth of such persons, if this Constitution had been in force at that time” (this includes period of German occupation) applies also to them. In other words, the Constitution makes mutatis mutandis these people citizens of Namibia, because they would have been Namibian citizens at the time of birth if the Constitution was in force then.

2. These people while in exile gave birth to their children i.e. parents being citizens of Namibia as per Article 4 (1) (a) of the Constitution. There is no time limit for citizenship of Namibia by birth and descent.

3. The children of these people were born outside Namibia and are not covered under Article 4 (a) of the Constitution.

4. However, these children are covered under provisions of Article 4 (2) (a) of the Constitution.

This Article stipulates clearly that those persons who are not citizens by birth as stipulated in Article 4 (1) (a) will be citizens by descent if their fathers or mothers at the time of birth of such persons are citizens of Namibia or such fathers or mothers would have qualified for Namibian citizenship by birth under Article 4 (1) (a) if our Constitution had been in force at that time and this includes the time when people fled to Botswana who according to our Constitution would have qualified for citizenship. Since we have concluded that the parents of these children would have qualified for Namibia citizenship by birth if our Constitution had been in place during the time when such parents were born, their children qualify for citizenship by descent as per Article 4 (2) (a) of the Constitution.

5. Since these people are perceived to be citizens of Namibia under the provision of Article 4 (2) (a) they are just citizens like anyone else.

6. Nothing in the constitution makes them less citizens even if they have stayed too long outside the country for reasons beyond their control, since citizenship by birth or descent does not have a time limit.

7. The children of these persons will also be covered by provision of Article 4 (2) (a) of the Constitution.
Because the children of parents who got their citizenship by decent under Article 4 (2) (a) are also full citizens like the children of the parents who got their citizenship by birth under Article 4 (1) (a), such children will also qualify to be citizens by Article 4 (2) (a). So it will go on and on. Therefore, I do not understand on what basis the argument is based that excludes successive generations from citizenship.

I deliberately left out citizenship obtained under other sub-sections of Article 4 and concentrated on citizenship obtained under 4 (1) (a) and 4 (2) (a) because these are the provisions that are relevant to the situation of the Hereros who fled to Botswana.
NB:   

– Note that the Namibian citizenship shall be lost by persons who renounce their Namibian citizenship by voluntary signing a formal declaration to that effect.

– Note also that no person who is a citizen of Namibia by birth or descent may be deprived of Namibian citizenship by any means including by law as per provisions of Article 4 (8) of the Constitution. – Note also that to the best of my knowledge, no person who either fled to Botswana or was born there from Namibian parents has renounced his or her Namibian citizenship by voluntarily signing a formal declaration to that effect as per the Constitution.

– Note also that I do not know of any provision in the Constitution of the land that stipulates that if one is a citizen by birth or descent such a person will lose such citizenship if such a person does not contact the Namibia authority to formalise such citizenship since there is no constitutional requirement for that.

– It is immaterial therefore, whether these people did not approach the Namibian authority while in Botswana to formalize their citizenship. It is against this background that I am sure that the law that obliged the people who were repatriated from Botswana to get citizenship by registration as it was done then when they came back to the country of their fore-parents, was unconstitutional in terms of, among others, Article 4 (8) of the Constitution since no person who is a citizen of Namibia by birth or descent may be deprived of citizenship by any law.

– Note that the only thing that could have been required of the returnees was for them to formalize their citizenship by way of obtaining necessary documents to that effect and those who were required to renounce the citizenship of Botswana to do so.
WAY OUT

 As far as I am concerned, this is a non-issue and it should not give us unnecessary problems. For the following considerations:

a) The two governments of Namibia and Botswana have done their part and agreed that the people of Namibian roots who found themselves in Botswana should come to Namibia and settle here like all the other citizens of the country. This was a straightforward political decision from the two governments concerned.

b) The parents of the children who do not have documents today are citizens of Namibia like any other citizens of the country. Some are even in Parliament, Minister, etc. These are people who came back to their country after many years of exile which was forced on them by colonial oppression in their country.

c) Their children who were born in Botswana are citizens by descent like all the children who were born in exile, be it in Angola, Zambia, etc. during the liberation struggle.

d) The government cannot invite people back to Namibia and at the same time refuse to give them necessary national documents. After all, these people are protected by the Namibian Constitution including article 21 (i) of the Constitution.

e) The children who came with their parents while young from Botswana cannot be compared with children of refugees who come to Namibia as refugees, they are children of our people who found themselves in foreign countries because of circumstances beyond their control and who qualify as citizens under our Constitution.

f) The mere fact that they were born in Botswana should not be the reason not to give them national documents. Even if the Botswana law does not allow them at this stage to renounce the citizenship of that country, we are under obligation to give them proper documents.

g) Even birth certificates can be issued to these children only stating that the place of birth is Botswana, and they can renounce that Botswana citizenship when the age requirement in that country allows them to do so.

h) If the government is issuing documents to the children who were born in exile during the struggle, I do not see any valid reason why these children should not be treated the same.

i) The fact that Botswana does not allow persons below the age of 21 to renounce the citizenship of that country should not be the reason for refusing issuing national documents to the children of the returnees from Botswana.

j) Secession clause does not apply to the children of the people who came back from Botswana because their children are not children of foreign refugees in Namibia like the Angolans.

k) It will be irresponsible and unacceptable for the government of Namibia to negotiate the return of its citizens from a foreign country just to come and deny them the national documents they need as citizens because of technicalities and difficulties that are not caused by the recipients of such documents.

l) These people are covered by Article 4 (2) (a) of the Namibian Constitution and they are the responsibility of the Namibian Government like any citizens of the land.

I hope this clarification will put to rest the misconception and misunderstanding that some people have about the status of our people who returned to Namibia from Botswana.