A note on the 1982 Botswana Citizenship
Act
                          by Peter Nanyenya Takirambudde
Introduction
From a comparative law perspective, citizenship laws are designed to define and
prescribe the conditions which connect or disconnect an individual with a given state
or legal system. I In most legal systems, the term citizenship connotes a legal status
which is derived from the existence of certain factual conditions such as birth within
a given country. The existence of the factual conditions is treated as a qualification
or legal condition for acquisition of nationality.       The totality of such conditions,
therefore, prescribes the nationality or citizenship law of a given state. Owing to the
inevitable differences that obtain in various countries, the conditions governing the
loss or acquisition of nationality vary in significant ways. Even within a single
country, due to internal political, economic and social changes the concept of
nationality does not remain static. Changes in circumstances lead to a redefinition of
the law which gives birth to a new concept of nationality or citizenship)
In Botswana, prior to the coming into force of the new Citizenship Act, the legal
conditions for the acquisition and loss of nationality were contained. partly in the
Constitution3 and partly in the Citizenship of Botswana (Supplementary Provisions)
Act.4      The 1982 Citizenship Act effects substantial changes in the character of
nationality particularly regarding the acquisition of nationality by naturalisation. The
genesis of the new Act was a Parliamentary Motion by the Hon. Magang. The
motion, inter alia, instructed the Minister of Home Affairs to refer the Citizenship
Act to the Law Reform Committee.5                  The 1982 Act is based upon the
recommendations of the committee.
International law concedes the right of each state to determine, under its own legal
system,      the persons who are going to be its citizens. The international community
is obligated to recognise the law of each state so long as it is in line with
international conventions, custom and the principles of law generally recognised with
regard to nationality or citizenship.6
Regarding a state's right to ascribe nationality at birth, international law recognises
two grounds upon which a state may confer its nationality at birth, that is to say, the
fact of birth within its territory (otherwise known as the principle of jus soli) or of
descent from a citizen (known as jus sanguinis).!          The principle of jus sanguinis,
which is said to have originated with membership in the family or tribe, is the older
of the two principles and finds expression in the citizenship laws of countries in
Europe, Africa and Asia. The principle of jus soli finds expression in the citizenship
laws of Great Britain <though somewhat modified by the British Nationality Act
 1981) the United States of America and most Latin American States. The modes
adopted by the Botswana 1982 Act for ascribing or granting nationality at birth
incorporate both jus soli and jus sanguinis.        In this respect the Botswana Act is
 therefore consistent with traditional mternational prescriptions.
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There are no hard and fast international prescriptions regarding the competence of the
state in connection with naturalisation procedures.           This domain appears to be
conceded by international law as lying within the exclusive zone of each state. The
exceptional conventional prescriptions are the Convention on the Reduction of
Statelessness, the United Nations Declaration on the Elimination of Discrimination
Against Women and the Convention on the Nationality of Married Women 1957. An
examination of the Botswana Act reveals no violation of these international standards.
The Citizenship Bill was published on 31st December 19&1. The Bill was enacted into
law on 18 October 1982 and was brought into force on 31 December 1982.
This note attempts a brief outline of the major provisions of the Act. Firstly the
note sets out the criteria for the acquisition of Botswana nationality. Secondly the
note considers        the contingencies for the loss, renunciation and deprivation of
citizenship.     Thirdly the status of applications lodged before the coming into force of
the new Act is taken up. Finally administrative and judicial aspects of the Act are
discussed.
Botswana     Citizenship at the Commencement of the Act
When the Act came into force every person who was a citizen of Botswana at its
commencement remained a citizen despite the repeal of the law under which he might
have acquired his citizenship.8
Acquisition of Botswana Citizenship after Commencement
of the 1982 Act
a.     Citizenship by Birth
       i.    Birth in Botswana - Jus Soli
             The principle of jus soli is maintained, albeit in a modified form: S. 4(1)
             provides that a person born in Botswana shall have a mandatory right to be
             a citizen of Botswana.       The fact that both jus soli (by birth) and ~
             sanguinis (by descent) are recognised by the Act would lead to cases of dual
             nationality.   To avoid this result 5.4(1) has a proviso to the effect that a
             person shall not be a citizen of Botswana by birth if at the time of his
             birth he acquires the citizenship of another country by descent through his
             father.
       ii.   Birth outside Botswana - Jus Sanguinis
             Section 5 provides for the automatic acquisition of Botswana citizenship
             by descent (jus sanguinis) by a person born outside of Bot~wana if at the
             time of his birth his father was a citizen of Botswana or In the case of a
             person born out of wedlock, his mother must have been a          citizen   by
             birth. It is arguable that S.5 has the potential for discriminatory effect In
             that a person may be born of a mother who may be a citi~n .by
             naturalisation and may have no connection with any other country. LikeWise
             a mother could have acquired citizenship by marriage .und~r the repealed
             law and may give birth outside of Botswana after she IS divorced or after
             her husband's death.      In aU the above cases there is a potential for
             statelessness. 9
                                               n


         Section 5, in conformity with the nationality laws of most states, contains
         no limitations upon the acquisition of Botswana nationality by descendents
         of Botswana nationals born outside of the country. Therefore Botswana
         nationality may be transmitted indefinitely, for example, to successive
         generations of persons born and continuing to live in South Africa or
         Zimbabwe.
b. Citizenship by Adoption
   Any child of not more than three years old adopted under the prOVISIOnsof any
   written law relating to the adoption of children will automatically become a
   citizen of Botswana if the adopter or in the case of a joint adoption, the male
   adopter, was at the date of adoption a citizen of Botswana.l 0
   In the case of a child of over three years old adopted by a citizen of Botswana
   under the provisions of any written law relating to the adoption of children, the
   Act grants the Minister of Home Affairs discretionary power to register such a
   child upon application by the adopter. II
c. Botswana Citizenship by Naturalisation
   and Registration
   The Act sets out the qualifications for naturalisation.l2     Firstly, the applicant
   for naturalisation must have been resident in Botswana for a continuous period of
   12 months immediately preceding the date of his application for naturalisation.
   Secondly, the applicant for naturalisation must lodge with the Minister of Home
   Affairs a written declaration of his intention to make such an application not
   earlier than 6 or later than 5 years immediately before the date of application.
   Thirdly, the applicant must have been resident in Botswana for periods amounting
   in the al1.l1.regateto not less than 10 years during the peripd of 12 years
   immediately preceding his application for naturalisation.
   Fourthly, the applicant must be of 11.00dcharacter.
   Fifthly, the applicant must have sufficient knowledge of the Setswana Language
   and any such other language as may be prescribed.
   Finally, the applicant must intend to reside in Botswana in the event of a
   certificate of naturalisation being granted to him.
    The Act provides privileged naturalisation procedures for married women.l3
    The effect of these procedures is to grant citizenship on easier conditions than
    those outlined above. The legal requirement for naturalisation of married women
    is residence in Botswana for a continuous period amounting in the aggregate to
    not less than two and a half years.
    The provisions regarding naturalisation of married women are entirely consistent
    with Article 5 of the United Nations Declaration on the Elimination of
    Discrimination A ainst Women (J 967) and Article 3(I) of the Convention on the
    Nationality of Married Women 1957). Article 5 of the former provides that:
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             Women shall have the same rights as men to acquire, change
             or retain their nationality.       Marriage to an alien shall not
             automatically    affect the nationality of the wife either by
             rendering her stateless or by forcing upon her the nationality
             of her husband.
      Article 3(1) of the latter Convention provides that:
             Each Contracting State agrees that the alien wife of one of
             its members may, at her request, acquire the nationality of
             her husband       through    specially privileged naturalisation
             procedures ...
Loss, Renunciation and Dep..-ivation of Citizenship
The Act seeks to bar the holding of other nationalities.         To this end it provides that
any person who is a citizen of Botswana and also a citizen of another country shall
cease to be a citizen of Botswana unless he has, immediately before the attainment of
the age of 21 years, renounced his citizenship of that other           country, taken the
oath of allegiance and made such declaration of his intentions regarding residence as
may be prescribed.l4
The Act has provisions15 for deprivation of citizenship. Under the Act the Minister
of Home Affairs may by order deprive a person of citizenship if he is satisfied that
that person       .
a.   has voluntarily     (other   than by marriage) acquired the citizenship of another
     country;
b.   has obtained naturalisation      under fraudulent circumstances;
c.   being a citizen by naturalisation
     i.     has failed, on being so required by the Minister, to renounce, within a
            specified time, his citizenship of any other country or to take the oath of
            allegiance.
     ii.    has shown himself by act or speech to be disloyal or disaffected towards
            Botswana.
     iii.   during hostilities in Botswana was or is engaged with or cooperated with
            the enemy.
     iv.    has within five years of being naturalised been sentenced in any country to
            imprisonment for a term of not less than 12 months.
     v.     has been resident in other countries for a continuous period of 7 years and
            during that period has not given notice in writing to the Minister of Home
            Affairs of his intention to retain his citizenship of Botswana.
     Phasing out Rights of Registration       Under
     Pre-existing Law
     Prior to the coming into force of the Act, qualifications for naturalisation were
     governed by the Constitution and the Citizenship of Botsw~na (Supplementary
     Provisions) Act.        These qualifications were generally easier than the new


     conditions. The new Act continues the pre-existing       qualifications in respect
     of those applications for the acquisition of citizenship of Botswana which were
      lodged on or before 31 December 1981. Such applications will be dealt with in
      accordance with the law in force immediately before the commencement of the
      Act.
Administration of the Act
Administrative responsibility for the Act is vested in the Minister of Home Affairs.
The Minister is assisted in his administrative functions by the Citizenship Committee.
In addition to the Minister, who serves as its Chairman, the committee consists of the
following individuals:16
I.    The Chairman of the House of Chiefs
2.    One member of the National Assembly appointed by the President
3.    Two members of the general public appointed by the President.
Judicial Review Excluded
The. ~ct provides that the Minister shaJJ not be required to assign any reason for any
deciSion taken under the provisions of the Act and that no such decision shall be
subject to appeal or review by any court.'7
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Footnotes
 1.  Silving, Nationality in Comparative Law,    5 American Journal of Comparative
     Law 410-412 (1956).
2.   Ibid.
3.   See Sections 20 to 29, Constitution of Botswana.
4.   Chapter 25:01, Laws of Republic of Botswana.
5.   The motion was moved and adopted on 14 March 1980.
6.   See Convention on Certain Questions Relating to the Conflict of Nationality
     Laws (Signed at the Hague, April 1930).
7.   See Harvard Research in International Law, the Law of Nationality, 23 American
     Journal of International Law 27-31 (1929).
8.   Section 24.
9.   I am grateful to Mr P. T.C. Skelemani, Deputy Attorney-General, Republic of
     Botswana, for having drawn my attention          to the potentially harsh and
     discriminatory effects of S.5.
10.  Section 6.
I I. Section 7.
12.  Section II.
13.  Section 12.
14.  Section 13.
15.  Section 15.
16.  Section 3.
17.  Section 18.
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