An amendment to the South African Citizenship Act will allow government to strip any South African serving in a foreign military of his or her citizenship under what could be vague or arbitrary conditions.
The South African Citizenship Amendment Bill [B17-2010] contains a clause that extends the grounds for loss of citizenship to include cases where “he or she engages in a war under the flag of a country that the Government of South Africa does not support.”
The existing Section 6 of the existing Act, 88 of 195, allows for loss of citizenship under two sets of circumstances, namely, where “he or she, whilst not being a minor, by some voluntary and formal act other than marriage, acquires the citizenship or nationality of a country other than the Republic; or (b) he or she in terms of the laws of any other country also has the citizenship or nationality of that country, and serves in the armed forces of such country while that country is at war with the Republic.”
Acccording to the South African Press Association (SAPA) Department of Home Affairs director general Mkuseli Apleni told the Portfolio Committee on Home Affairs this week that there “is currently no provision for the loss of citizenship by a naturalised citizen for engaging in a war that the republic does not support. The amendment of section 6 of the Act will provide that a naturalised citizen may not apply for retention of citizenship if he or she wishes to engage in a war that the government of the republic does not support, under the flag of another country.” However nothing in the principal Act or the amendment Bill seems to restrict the new clause to naturalised citizens (immigrants) only.
An unknown number (to defenceWeb and Home Affairs) of South Africans serve in the British armed forces and have made deployments to Iraq and Afghanistan. SAPA on October 13, 2004, reported that the government at the time estimated that some 4000 South Africans were working in Iraq as security contractors. According to the wikipedia, at least 38 of the latter were killed.
Government has talked a tough talk against citizens fighting in foreign conflicts. In 1998 it passed the Regulation of Foreign Military Assistance Act to outlaw mercenary activities. A number of high-profile prosecutions followed and although convictions were made, the courts found flaws in the law. As a result,the Department of Defence (DoD) rushed through the National Assembly the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act,27 of 2006. President Thabo Mbeki assented to the Act a year later,in November 2007. However no regulations under the Act were ever published and the matter faded from the government agenda, not even appearing in this years’ DoD strategic business plan.
Former education and water minister Kader Asmal condemned the Home Affairs move in an opinion piece in the Business Day on Wednesday.
Asmal, a professor of constitutional law, also headed the ruling African National Congress party’s ethics committee and chaired the National Conventional Arms Control Committee for several years. In an article co-written with lawyer John Peter, Asmal calls the Bill’s explanatory memorandum “a hopeless example of public-service obscurity.
Asmal and Peter say the amendment under discussion here “is a drastic erosion of rights. The proposed wording has a number of problems. For instance, to ‘engage in a war’ might extend beyond active service in armed forces to technical or logistical support, or even trade The words ‘does not support’ are pregnant with ambiguity,” they say. “This could mean that the government publicly expresses disapproval of another country’s involvement in a war or might simply mean an absence of expressed approval.
“We know how our government has not been able to implement the present anti-mercenary legislation because it has overreached itself. We wonder about the justification for the proposed amendments…”