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Monday, 26 April 2010

DUAL NATIONALITY: DEMYSTIFICATION OF THE REFLECTIVE DISTASTE


WALTER CHIPETA IntroductionHype and mystery have characterised the issue of dual nationality and obscured its otherwise not-so-complex nature. As a doctrine dual nationality is not just a swelling global phenomenon but also a reality of the current world. As elsewhere in the internationalized world, dual nationality – the state of simultaneous possession of two citizenship (also “dual citizenship”), is not a new topic in Tanzania and within Tanzania communities.

Within the country the topic has, for more than ten years, been a subject of significant intellectual debate. In the last five years, for the better, the debate has been formal and public, with contrasting camps taking positions. The crystallization of the debate took shape through the Law Reform Commission of Tanzania “Position Paper on Introduction of Dual Citizenship in Tanzania”[2]. The position paper was preceded by the letter of 14th June 2004 by the Commission (as posted on the Commission’s website) which stated to the effect that due to intense globalisation and in recognition of the potential benefits that can be generated from it, the Commission recommended the introduction of multi lateral framework for cross boarder movement of people as way of sharing those benefits between nations. Measures to stimulate such process of skill circulation could include acceptance of dual citizenship by both host and sending countries. The subsequent Commission’s paper stated in part: “The movement towards embracing dual citizenship is slowly gaining momentum as nations become aware that their national security may not necessarily be jeopardised by mere application of dual citizenship under the present circumstances of intense globalization and technological advancements which have melted territorial boundaries and merged the world into a global village. Thus, accepting dual citizenship may now be considered to be in the national interest, as it will facilitate flow of investment, transfer of technology and infusion of democratic values, while at the same time, permitting a nation to affirm its identity. It is, in any case, too late for entrenchment of dual citizenship to be reversed, as it has become a fact of globalisation”. Historical BackgroundArguably, in the previous neo – colonial Africa nationality had acquired singular characteristics and became intertwined with patriotism and nationalism. The position was a consequence of the world powers prior division of the world territory and allocation of the globe’s population. During the era a defining characteristic of a nation – was exclusivity of national identification and the notion that individuals should have one – and only one – nationality and must have sworn and inalterable allegiance to the sovereign [See: Peter J. Spiro Dual Nationality: Unobjectionable and Unstoppable) – Article: Centre for Immigration Studies) [3]. In this period dual nationality was regarded as an anomaly so gross that it was considered immoral. From the early days of perpetual allegiance to the sovereign as promulgated by the British law, the principle appeared to be that “a subject” remains bound to the sovereign and only the sovereign can free a subject from his nationality bound. In Britain and subsequently America, this was the period when nationality was of singular characteristic with no option on the part of a national/citizen (subject). The concept of perpetual allegiance was brought to what Professor David A. Martin refers to as “Speedy and Unlamented death” in late 19th Century[4]. Nations came to know that the medieval notion was no longer pacing with the need of the practical world where rail and steamship travel, with significant flows of permanent migration, voluntary and coerced, took charge. Despite these developments and despite “minority” individuals preferring the elimination of mono nationality regime, dual nationality was, during the era, still regarded as a preference only for “crass opportunists, dodging the obligations of citizenship by living elsewhere, but then asserting the nationality of the distant state when it momentarily suited their private interest”[5]. This continued resistance to dual nationality did not have the proverbial nine lives as it gradually eroded. Scholars trace the erosion to the, 1930 Hague Convection[6]. Ironically, though viewed as landmark for the erosion, the publication preface was worded and spirited against dual nationality. It provided: “…it is in the general interest of the international community to secure that all its members should recognise that every person should have a nationality and should have one nationality only; “… the ideal towards which the effort of humanity should be directed in this domain is the abolition of all cases of statelessness and of double nationality” [emphasis added]. Only 20 nations ratified the Convention. The lack of clear consensus on the Hague Convention is evidence that the drive towards suppressing dual nationality was weakening. The Universal Declaration of Human Rights[7] under its Article 15, provides for a right to nationality. Despite that it does recognise the right of individual countries to regulate the principles and process of acquiring, maintaining and processing nationality, the affirmation of the right to nationality was an achievement in defence of the concept of dual nationality. The Current LawHistorically the resistance to the concept of dual nationality may have been justifiable, basing on the situation obtaining in post colonial Africa. The post colonial nationalist governments had to adopt strategies and concepts that would create a nation with all its values. It is in the cause of such endeavour that, rightly or wrongly, these states/governments became the custodians of citizenship, prescribing restrictions that would fit the era of nation building and subjects identity, marked by wary relations between nations and blocks, citizens and saboteurs. The root of the current law governing citizenship in Tanzania (and indeed other African countries) reflects that period where issues of citizenship, loyalty and sovereignty bedevilled post colonial African states. The rigidity of the citizenship laws and policy in these states is reflective of distaste on any form of multi citizenship, whether voluntary or coerced. The Tanzania Citizenship Act 1995, (which superseded Citizenship Ordinance, Citizenship Act 1961, and Extension and Amendment of Laws (No. 5) Decree 1964), the main law governing citizenship in the country, is a product of such period. Section 4 (1) of the Citizenship Act, 1995, provides for Citizenship by birth. Notably, a person born within Tanzania territory before or after independence is not automatically a citizen unless he/she meets the following criteria:- Was born in mainland Tanzania or Zanzibar before the Union day, that is 26th April 1964.- Was, immediately before the Union day, a citizen of the Republic of Tanganyika or Peoples Republic of Zanzibar.Section 5, (read with Section 30) of the Citizenship Act, 1995, sets out what is recognised as citizenship by descent. Under the provision, a person can acquire citizenship in the following scenarios:- where a person is born outside Tanzania, before the Union day, was living in Tanzania and one of his/her parents was born in Tanzania.- Where a person is born outside Tanzania but one of his/her parents was eligible to Tanzania citizenship.- Where a person is born in Tanzania and one or both of the parents are Tanzania citizens.- Where a person is born outside Tanzania but his/her father is a Tanzania citizen. Section 11(1) of the Citizenship Act 1995 sets out what is recognized as citizenship by marriage. It recognises the right of a foreign woman married to a citizen of Tanzania, upon making an application, to become a citizen of Tanzania by naturalization. Similar privilege/right is not available in respect of a foreign man marrying a woman with Tanzanian citizenship. Section 9 (1) of the Citizenship Act 1995, (read together with the 2nd Schedule to the Act), provides for the citizenship by naturalisation. From the foregoing provisions the law in Tanzania is characterised by compromise between two basic citizenship origin concepts, supplemented by a category which may be referred to as “administrative process”.The categories are:1. Citizenship by Birth – (Jus Soli or ius soli) which is the status of belonging based on birth within a particular country.2. Citizenship by Descent – (jus Sanquinis or ius sanquinis) which is based on one parent being a citizen of Tanzania.3. Citizenship by Administrative process (Naturalization, Marriage or Registration). The Tanzania Citizenship Act 1995, by its wording and spirit, is non- tolerant of the concept of dual nationality. Even in case of a dual national minor, the Act provides under Section 7 that he/she must renounce the other nationality and take oath of allegiance upon attaining age of the majority, failure of which such a person ceases to be a citizen of the United Republic of Tanzania.(1) ...(2) ...(3) ... (4) A Citizen of the United Republic shall cease to be a citizen if:(a) Having attained the age of 18 years, he acquired the citizenship of some country other than the United Republic by a voluntary act other than marriage. (b) Having attained the age of 18 years he otherwise acquired the citizenship of some country other than the United Republic, or while a citizen of the former Republic of Tanganyika or the former People’s Republic of Zanzibar, and has not by the specified date renounced his citizenship of that other country, taken oath of allegiance and made and registered a declaration prescribed by Parliament regarding his intention as to residence. The Case for Dual NationalityDespite the suppression and opprobrium that the concept of dual nationality has been subjected to, it has re-emerged in the wave of globalization with a number of grounds for its restriction reduced to bare rhetoric. Reasons for abandonment of mono nationality and incorporation of dual nationality into municipal law regime, in the current global setting, are unobjectionable. As an avenue to engage the Tanzania Diaspora community, the following are advantages dual nationality can achieve. 1. Tapping the Diaspora Technological and Educational PotentialThe country needs the Diaspora as much as they need the country. Most of the Diaspora population has been exposed to technological and other development values that are vital for the development of a nation. Tapping the Diaspora’s technological and educational capabilities can only benefit a country, particularly where such capabilities are insufficient or non-existent. Further given the need for a real middle class in Tanzania, a suitable dual citizenship system is capable of promoting and maintaining this essential class, for the benefit of country’s development. It is further noted that one quality of most of the Diaspora is that ‘inner williness’ to return home and utilize the entrepreneurial, business development skills, etc, on a larger scale. This human capital factor is unobjectionable as the country stands to benefit from a considerable injection of trained professionals. The “Citizens” with skills and civic experience from abroad are capable of providing immeasurable value to the local labour market. 2. Tapping the Diaspora Economic Empowerment PotentialBy the year 2003 there were about 1 million Tanzanians abroad with accounted remittances of about 63% of all foreign exchange inflow into Tanzania in form of charities, projects, investments and directly to family members[8]. Financial contribution to economies by Diaspora communities is a factor that is self-evident. According to a World Bank’s Migration and Remittances Fact Book in 2007 the remittances to sub- Saharan Africa was US $ 10.8 Billion[9]. This is a significant amount in view of the economic position of the countries and the returns such injection stimulates. Dual nationality is a stimulus package towards creating favourable investment climate and economic stability that can only benefit the origin country. Economically Diaspora community is a force with which to be reckoned. Professor Hiroshi Motomora argues:“For poor countries, one incentive for embracing dual citizenship is the economic state it can give them…“Many countries rely on remittances from countrymen who make decent wages in the West and send cash to their relatives back home… it amounts to significant form of aid. In some cases, you have remittances exceeding exports, like in El- Salvador”[10]. 3. The Need and Interest of the DiasporaTanzanians have been forced to seek and/or acquire other citizenship for various purposes. These include, but are not limited to, employment (better jobs), protections against the legal system(s), and benefits under the welfare system, health care, tax benefits, educational benefits etc. It is argued, to which argument I subscribe, that dual citizenship ultimately benefits the country of origin. On the other hand, what does the country benefit by stripping off their Tanzanian nationality merely because they have taken up citizenship of a host country? One valuable quality of the Diaspora community is the need to obtain host countries’ nationalities, while keenly interested to preserve their (original) Tanzania citizenship. As stated in the Position Paper referred to earlier, they would have a greater sense of belonging, while retaining the security they need to live in the host country, which could conceivably set the ground for investment in their country of origin. They would attend to their need and interest but remain legally belonging to their country of origin. In this sense, the adoption of dual nationality, also constitute an affirmation of individuals rights. 4. An Avenue for National Development Vision - 2025 The Tanzania National Development Vision 2025, sets an objective of developing a strong, resilient and competitive economy that can withstand global competition. Under the concept of dual nationality, cultural, educational and economical capabilities of the Diaspora community can go a long way in achieving this objective, where the people identify themselves with the country of origin and feel the patriotic duty towards ultimately achieving the common goals of the nation. The Diaspora constitutes a stimulus package for vision, and dual nationality will constitute an avenue to engage them. 5. “Loyalty, Allegiance and Loss of National Identity” Argument The continuous integration of the world has created intertwined states and shared identities. Equally, citizenship is an evolving concept which is affected by major global factors such as globalization; it has become a factor for globalisation. It is for this reason that a number of countries have allowed some forms of dual nationality to increase steadily. This is confirmed by the research done under the United States Center for Immigration Studies. In 2000 there were 89 countries which permitted some form of multiple nationality. In Africa, only in the last decade or so Angola, Burundi, Djibouti, Gabon, Gambia, Rwanda, Sudan, Uganda, Sierra Leone, Sao Tome and Principe, have evolved to dual nationality. Some countries such as South Africa, Egypt and Eritrea permit dual nationality save for requirement of sanction of their respective governments. African countries that still suppress dual nationality are currently fewer than half. The conservative view that dual nationality may impact negatively on the national security and affect patriotism is out of context. To the contrary, dual citizenship can increase/establish a real connection to one’s country and promote patriotic values. Gone are the times when citizenship and political loyalty were considered inseparable. A country to which a person is a citizen is entitled to enjoy and enforce duties/obligations/loyalty on the person; an individual who has taken dual nationalities is equally charged with the duty of allegiance to each of them, without fail. The argument that such nationalities will limit the consular protection of original country when needed in a second country is similarly ‘conservative’, since by virtue of being a citizen of the 2nd country it is as clear as day – follows- night that consular protection is not applicable. After all he/she is a citizen who can seek protection under the local laws of the country in question. Citizenship ordinarily bestows all the rights and obligations one would expect to encounter with granting of citizenship. As correctly held by Professor Martin, dual nationality does not preclude civic loyalty[11]. In the current globalized world, the allegiance should be judged on evidence on the ground not presumed on the post address; it is not an issue of a postal code but of a code of conduct of individuals in relation to a nation[12]. On more practical level, the umbilical cord or the family tree that give a citizen the sense of belonging is not uprooted and destroyed because circumstances have changed for the citizen living in a new host country. Therefore, the very conscious decision to be bound by host country laws and regulations in return for significant consideration neither constitute betrayal to the origin sovereign nor “standing on the revolving door”. 6. Affirmation of Individual Rights While dual nationality is beneficial to the nation, it is a concept towards affirmation of individuals’ rights, in relation to the choice of where to live, work, invests, etc. It grants an individual access to social security, education, grants, and health care without jeopardising his/her citizenship status. Human beings collectively and individually are entitled to make decisions on where, when and how to lawfully earn a living. The wider perception of this right correctly considers the concept of restricted nationality as infringing the right of choice inherent in a person, particularly when presented with an opportunity. Citizenship may be an instrument of state control, but that should not negatively impact the right to individual identity and free belonging (association). Equally, therefore, restrictions of nationality even where a person is by birth a dual national, unnecessarily impose restriction on individual’s identity. This cannot be clearer than in a situation where a person is by birth entitled two nationalities but subjected to forcible choice of one nationality through renunciation or risk being rendered stateless. Needless to say the rights of an individual must be balanced against the interest of a nation. However the balancing of such rights is not through stripping (of) or denial of the “entitlement” to acquire the second nationality. This may be through customised process that allow nationals to exercise such entitlement while remaining with their original citizenship and not suffer loss of civic loyalty. To value civil society, state has to accept that ‘subjects’ may hold a variety of involvements and loyalties at the same time, while not diluting the civic allegiance to the state. 7. The Judicial Trend Judicial jurisprudence has at all times constituted a catalyst for change in policy and laws. Globally, we have witnessed growing political will and judicial trend favouring affirmation of individual rights including, but not limited to, dual nationality. In the United States of America judicial resistance to the restrictions sought to be imposed by the State on nationality in one form or another goes back to as early as 1900’s[13]. The trend has picked significant recognition in various jurisdictions where the laws seeking to limit the right to a nationality have been challenged through judicial process, on different aspects and in some cases found wanting. The judiciary in Tanzania as any functional judiciary in the world is conscious of various jurisprudential trends taking place in the globalized world. The Courts do take judicial notice of various developments of the legal principles and their application where relevant. It is arguable that the current limitations in our laws remain open to judicial challenge particularly where the legal provisions have the effect of coercing renunciation of citizenship or stripping of citizenship. The 1967 judicial development United States of America is only an example (Afroyim v. Rusk, 387 US 253 (1967). The Supreme Court ruled that under the constitution, the Congress had no right to pass a law which had the effect of depriving an American of his citizenship without his assent. The geopolitical context of the current world and the legal developments in other jurisdictions are wake up calls for a reasonably responsive state not to wait for the “emperor hath no clothes” situation. Conclusion Citizenship is transnational in the current “internationalized world”. A large number of states accept or in the least tolerate the concept of dual nationality, where acquisition of citizenship is not contingent upon renunciation of one’s original nationality, or automatic loss of citizenship upon acquiring another citizenship. As the current social and economic realism dictates for dual nationality, allegiance is no longer pinned on single dimension nationality. [1] LL. B. (Hons), LL.M (Dar) Advocate of the High Court of Tanzania and the High Court of Zanzibar; Partner - Hallmark Attorneys - Tanzania.[2] Established under the Law Reform Commission of Tanzania Act number 11 of 1980 as a law reform agency with wide ranging responsibilities that include to reform laws of Tanzania so as to bring them to fit changing socio-economic circumstances and aspirations of people of Tanzania. [3] Peter J. Spiro: Associate Professor at Hofstra University School of Law, International and Immigration law. Article available at www.cis.org/articles[4] David A. Martin: Professor at University of Virginia School of Law, International Law. Lecture available at www.virginia.edu/html/alumni/uvalawyer/sp05/martin_lecture.htm[5] Idem. Lecture available at www.virginia.edu/html/news/2004_fall/martin.htm[6] Convention On Certain Questions Relating to The Conflict of nationality Laws, The Hague – 12 April 1930[7] The Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly on December 10, 1948 at the Palais de Chaillot in Paris.[8] Position Paper on Introduction of Dual Citizenship by the Law Reform Commission of Tanzania, 2004.[9] Migration and Remittances Factbook 2008 (March 2008) - Dilip Ratha , Zhimei Xu[10] Quoted by Mark Fritz, Los Angeles Times, 6 April 1998.[11] Idem.[12] Apolo Temu, a pro-Dual Nationality personality (arguing on-line in response to Proffesor Issa Shivji ‘s Comments against dual Citizenship.[13] Mackenzie v. Hare, 239 U.S. 299 (1915) Argued November 11, 12, 1915; Decided December 6, 1915 Posted by vicky kamata at Sunday, April 18, 2010 0 comments

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