The Case
Rockfall Lekgowe Law Group represented the applicants in this case. Sethabile Mathe, a citizen of Botswana, married a Norwegian citizen and had two children, Jonas and Sunniva, in Oslo, Norway. The children hold dual citizenship as they are citizens of both Norway and Botswana. However, according to Section 15 of the Citizenship Act in Botswana, upon reaching the age of 21, a person with dual citizenship must renounce the citizenship of the other country or risk losing Botswana citizenship. The main legal question that arose was whether Section 15 violated the applicant’s fundamental rights protected by the Constitution of Botswana.
Arguments at the High Court
The Applicants claim that the Citizenship Act discriminates against their children based on their place of origin, which is prohibited under Section 3 of the Constitution. They argued that allowing married citizens to retain dual citizenship while forcing their children to choose violates the right to equality. The Applicants further contended that Section 15(4) of the Citizenship Act, permitting married citizens to have dual citizenship, while denying the same advantage to their children, is discriminatory based on marital status. Additionally, the Applicants argued that the requirement for their children to choose one nationality over another restricts their freedom of movement (Section 14) and association (Sections 3 and 13). The Applicants asserted that requiring their children to take an oath of allegiance diminishes their self-worth, infringing on their right to dignity.
The Respondent asserted that citizenship is a matter within a state’s sovereign powers and denies any violation of the Applicants’ rights. The Citizenship Act is deemed appropriate in the exercise of those powers. The Respondent suggested that the choice given to the children to either retain or renounce Botswana citizenship is an advantage rather than discrimination, and they can still benefit from privileges granted to non-citizens through the Botswana Blue Card.
High Court’s Decision
The High Court rules that the requirement for children to renounce citizenship upon turning 21 infringes on their freedom of movement and association. It concludes that the discriminatory treatment is based on the place of origin of the parents, violating Section 15(3) of the Constitution.
The Court holds that Section 15(4) of the Citizenship Act, allowing married citizens to have dual citizenship without renouncing their spouses’ citizenship, is discriminatory based on marital status. As no justification is presented for this discrimination, the Court declares Section 15(4) unconstitutional, violating Sections 3 and 15(3) of the Constitution.
Current Position of the Law
The Attorney General appealed the High Court’s judgment but subsequently withdrew the appeal. Consequently, the current legal position is as contained in the High Court judgment which is that Botswana recognizes dual citizenship, allowing individuals to hold citizenship of both Botswana and another country.
Should you require further information please do not hesitate to contact rockfall@rockfall.co.bw. The applicants were represented by Rockfall Lekgowe Law Group.