Article by P. Msekwa - Revisiting recommendations by the LRC on dual citizenship in Tanzania

THE ISSUE OF DUAL CITIZENSHIP IN TANZANIA : Revisiting recommendations by the Law Reform Commission

THE Daily News of Thursday, August 25, 2016; carried a news item concerning the official opening by the Zanzibar President, Dr Ali Mohamed Shein, of the annual meeting of members of the Tanzania Diaspora, which was being held in Zanzibar at the material time.

It was reported that “members of the Tanzania Diaspora reiterated their commitment of being good ambassadors abroad, including promoting investment opportunities, and working closely with the Government in changing the lives of their compatriots back home”.

It was further reported that several topics were scheduled for discussion, including the issue of dual citizenship, as well as the matter of giving Diaspora members the right to vote during general elections.

I am particularly interested in the issue of dual citizenship, for one specific reason; which is that I was still a member of the Law Reform Commission of Tanzania (LRCT), when that Commission made a thorough and extensive study of this matter in 2004, and submitted its recommendation to the Union Government on 12th May 2006, recommending its adoption.

But to date, no decision seems to have been taken on those recommendations.

That is the reason why, in this article, I am revisiting the findings of that study, plus the recommendations arising there from, for the benefit of our readers who may have a vested interest in this particular matter including, obviously, the Diaspora members themselves.

Furthermore, this revisit becomes even more relevant, in view of the Government statements which were made at the Diaspora forum both by President Shein, and the Minister for Foreign Affairs, Dr Augustine Mahiga.

The statements made on behalf of the Government. The Daily News reported as follows: “The issue of dual citizenship and the right to vote during general elections were some of the key questions discussed at the Diaspora forum.

But the Government Authorities asked members of the Diaspora to be patient, pointing out that both dual citizenship and the Diaspora’s right to vote at general elections are sensitive issues which are linked to the country’s Constitution.

We should avoid rushing into making decisions on them, to allow sufficient time for constructive discussions to take place, said both President Shein and Foreign Minister Dr Mahiga”.

Thus, in view of the ten years which have elapsed since the Law Reform Commission submitted its well considered recommendations to the Government, it is absolutely puzzling that the Government should be asking to be allowed “sufficient time for constructive discussions to take place”.

The big question is: are the ten years which have elapsed since the Government received the Law Commission recommendations on this matter, not enough time for that purpose? The Law Reform Commission’s study on dual citizenship.

In accordance with its mandate, which is “to take and keep under review all the laws of Tanzania for the purpose of their development and reform”; the Law Reform Commission of Tanzania undertook a comprehensive study on the project of the introduction of dual citizenship in Tanzania, within the framework of the citizenship law of the country.

This project commenced in June 2004, aimed at examining the current trend, at that time, in the development of the citizen laws of certain other countries which were changing their citizenship laws to accommodate dual citizenship; in order to see whether there was sufficient justification for updating the citizenship law of Tanzania in line with what was happening elsewhere in the world.

The decision to undertake this project was substantially prompted by the publication of a Report of the World Commission on the Social dimension of Globalisation, which was launched in March, 2004.

One of its recommendations strongly urged the adoption of dual citizenship by countries of the South, as one of the ways through which the nations of the South could equitably share the benefits of globalisation.

But it was also given additional credence by the widely expressed desire of many Tanzanians, both within and outside the country, that it was high time for Tanzania to seriously consider the adoption of the dual citizenship regime, as a way of minimizing the effects of the loss of highly skilled human resources resulting from the large number of highly qualified Tanzanians migrating to other countries of the world in search of greener pastures.

The scope of the study. The Commission’s study examined all possible factors in order to determine whether or not to adopt the dual citizenship regime.

The Commission made a thorough review of the current citizenship law, the immigration law, as well as other legislation which impacts on citizenship and related matters, such as the Constitution of the United Republic of Tanzania, the National Security Act, the Extradition Act, the Mutual Assistance in Criminal Matters Act, and the Prevention of Terrorism Act.

The study also examined the concept itself of dual citizenship, by making a comparative study of the citizenship laws of a number of African countries which have already adopted that regime, with a view to ascertaining the reasons and circumstances which led them to adopt the dual citizenship regime; plus the achievements and/or problems which have been encountered by those countries in operating the said regime.

The countries covered in this study include countries which have already adopted the dual citizenship legal regime, and those which, at that material time, were still actively considering the matter.

The countries studied were: Ghana, South Africa, Ethiopia, Mauritius, Kenya, Uganda, Burundi, Rwanda, Benin, Chad, Equatorial Guinea, Togo, Cote d’Ivoire, and India. Furthermore, because citizenship is a Union matter under our Constitution, the study covered both Tanzania Mainland and Tanzania Zanzibar.

The Commission’s Research findings. In the process of gathering the views and opinions of stakeholders, the Commission visited a total of seven regions in Tanzania Mainland, and two Regions in Zanzibar.

The Regions visited were Arusha, Mara, Mwanza, Tabora, Ruvuma, Iringa, Dar es Salaam, Unguja Central and Unguja South.

The key stakeholders who contributed their views at public as well as at private hearings included members of the general public, politicians, and members of the academia especially lawyers through their professional associations.

In giving their views, some of the stakeholders supported the introduction of dual citizenship without any reservations, but the majority suggested that its introduction should be subjected to certain specified restrictions.

For example, it was suggested that dual citizenship should be accorded only to Tanzanians who are citizens by birth, and not to those citizens belonging to other categories.

They contended that most Tanzanian citizens who acquired foreign citizenship did so primarily because it was necessitated by the need to improve their economic well being by working in the relevant foreign countries, while their allegiance to Tanzania remained intact.

They should therefore be allowed to retain the citizenship of origin. With regard to restrictions which should be imposed, it was suggested that Tanzanians with dual citizenship should not be allowed to participate actively in politics, or to hold high positions in Government.

Those who advanced this point of view suggested further that we should adopt the Indian model of dual citizenship, where such citizenship was granted only to persons who were described as “overseas citizens of India”, which meant persons of Indian origin who had acquired citizenship of another country.

The relevant Indian law provided that an overseas citizen of India is not entitled to the rights conferred upon ordinary citizens of India, and therefore had no right to equality of opportunity in matters of public employment, had no voting rights, and were not eligible to become members of the Indian Parliament.

But the Commission’s study identified many others who were totally against the introduction of dual citizenship, arguing that it would provide opportunities for bad people to endanger the security of the state by causing social and political conflicts of one kind or another.

In relation to this perceived danger, our Commission took note of the debates which took place in the South African Parliament in 1995, when that House was giving consideration to the Bill for the enactment of the South African Citizenship Act, 1995.

Historically, South Africa has always accepted the principle and practice of dual citizenship. Hence, in the debate on the above mentioned Bill (where this principle was apparently challenged), the Minister for Home Affairs, Dr Buthelezi, said the following: “The Government is appreciative of the fact that there are strong arguments against the principle of citizenship, which are based on considerations of the loyalty of such persons with dual citizenship.

However, the Government has no intention of legislating against dual citizenship. I am certain that the majority of South African citizens who also hold the citizenship of another country are as loyal and as respectful to the Republic of South Africa and its Constitution as our own citizens who hold no other citizenship. Consequently, this Bill contains no proposals that deviate from the present legal tolerance of dual citizenship”.

The Commission’s recommendations. The opening sentence of the Recommendations section of the Commission’s Report reads as follows: “The Commission has deliberated on the issue of dual citizenship by analysing both the advantages and disadvantages of this regime, and has come to the conclusion that the demand for dual citizenship deserves to be considered in a positive and forward-looking spirit . . .

The Commission is of the view that the current legal regime, which deprives certain Tanzanians of their citizenship, simply because they have acquired some foreign citizenship, is no longer beneficial to the country, for it is actually a loss of the country’s significant human resources”. Thereafter, the Commission makes the following recommendations:-

(i) That in the event that the dual citizenship legal regime is accepted, it should initially be applied to those Tanzanians who have lost their Tanzanian citizenship because of acquiring some foreign citizenship, by restoring to them their lost Tanzanian citizenship. Such restoration should be made on application by the concerned individuals, and considered on a case-by-case basis. The applicants should not be accepted in a rush and without thorough screening.

(ii) That there should be no automatic conferment of dual citizenship. It should rather be done by following appropriate procedures of application and consideration, which will be laid down in the relevant legislation, and the rules made under it.

(iii) With regard to the concerns that dual citizenship should not be allowed to participate actively in politics or to hold high positions in Government, the Commission was of the view that since the Union Parliament is empowered, under sub-article

(2) of article 5 of the Constitution of the Union Republic, to enact legislation imposing restrictions on a citizen from exercising the right to vote by reason of, among others, being a citizen of another state, this Constitutional provision can be used to achieve that particular objective.

The relevant law stipulates clearly that after receipt of the relevant Law Reform Commission Report by the Minister, he is expected to do the following: (a) to present the said Report to Parliament by laying it on the Table of the House, and (b) (unless, of course, the Government is unwilling to implement the recommendations of that Report), to prepare the necessary Bills to be submitted to Parliament for their enactment into law.

But, alas, as has been the case with many other Law Reform Commission recommendations, there has been no submission of the dual citizenship Report to Parliament; not even by taking the initial step of laying it on the Table of the House, in order to make it accessible to the general public!

Contacts: cell 0754767576. E-mail [email protected]