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SOCIAL SERVICES SELECT COMMITTEE
23 February 2000
CONVENTION REGARDING THE STATUS OF MARRIED WOMEN: BRIEFING BY THE DEPARTMENT OF HOME AFFAIRS
Documents handed out
Convention on the Nationality of Married Women
Chairperson: Ms L Jacobus
The Convention, if ratified, will have the effect that the nationality of a married woman is not automatically affected by the nationality of her husband. Thus, any change in his nationality, due to his actions, or his personal circumstances, will not automatically affect the nationality of his wife. The idea is that a married woman should have the power to make her own decisions regarding her nationality.
The Department of Home Affairs said that the Convention is in line with the constitutional requirement of equality and it is not in conflict with any other legislation. This Convention will be ratified at the Committee's next meeting as there was no quorum.
The Convention, which was introduced in the United Nations, was signed by South Africa in 1993. However, in order for the Convention to become operational in South Africa, it has to be ratified by Parliament.
This Convention was identified as a human rights instrument, which should be ratified by government, in accordance with government's national plan of action for the promotion of human rights. It deals with the nationality of married women, and protects them against discrimination of their nationality on the grounds of gender. In the past, women have been the victims of discrimination with respect to nationality and had an inferior position to their husband. The most blatant example of this is if a husband's lost his citizenship, then his wife automatically also lost her citizenship status.
The notion, in terms of this Convention, is that a wife should have a say with regard to what her nationality should be. She should be able to decide this, irrespective of circumstances affecting her husband's nationality status.
It provides that where a citizen marries (or divorces) an alien, the nationality of the husband will not automatically affect the nationality of the wife.
Where the husband renounces his citizenship, or, voluntarily acquires the citizenship of another country, the wife will not be prevented from retaining her nationality.
Article 3(1) is a restatement of a provision in our existing Citizenship Act. It provides that, where an alien marries a citizen, the wife may, if she so wishes, and, in accordance with certain procedures, acquire the nationality of her husband.
Article 3(2) provides that this Convention will not affect any legislation, or legal practices, which grant an alien wife the right to acquire the nationality of her husband (if she so wishes, and, in accordance with the requisite procedures).
Article 4 - Article 12
The Department said that as these articles deal only with procedural matters, they would not elaborate on them.
The State Law Advisors have gone through the document and have concluded that it is not in conflict with any existing law in the Republic. It is also in line with international agreements that the Republic has entered into. Accordingly, the Convention should ''strengthen the protection of women in terms of nationality without complications''.
The Chairperson asked whether the Convention is compatible with the Prevention of Unfair Discrimination and Promotion of Equality Act which was recently concluded. She pointed out that the Act contains specific grounds, which are prohibited grounds of discrimination. Included in these grounds are gender. Nationality had been considered as a potential addition to the list of prohibited grounds in that Act, but, at the request of the Department of Home Affairs, it was excluded.
Department of Home Affairs: Apparently, the State Law Advisors had checked the compatibility of the Convention against other legislation, prior to the Equality Act being enacted. The only response that the Department could give was that they did not think that there were any clashes, but they spoke ''under correction''. They assured the committee however, that the Convention was ''in line with the constitutional provisions on equality''.
The Chairperson asked whether an alien who married a citizen, received automatic permanent residence, or whether that alien still had to apply for it.
The Department said that the requirements for naturalisation had not changed: there has to be an application for a permanent residence permit.
Mrs Lubidla (ANC, Northern Cape) commented that there were people who had been living in South Africa for up to 30 or 40 years without having any kind of permanent residence. Because they had been living here for such a lengthy period, they simply assumed that they were citizens. These people discovered to their dismay that they were regarded as non-citizens when they wanted to register for the elections. She suggested that the Department find a way to combat this kind of ignorance, perhaps by distributing pamphlets, and then assisting these people to acquire citizenship.
The Department said that such matters should ideally be dealt with by the politicians in their specific constituencies.
The Chairperson asked Mrs Lubidla to confine the questions to the issue at hand. She assured the committee member that the Department of Home Affairs would be back to tackle the question of identity documents, and this matter could be handled then.
Reverend Moatshe (ANC, North-West) said that he did not understand what protection the Convention would provide to women. He asked for an explanation.
The Department explained that, in terms of the Convention, the nationality of a woman cannot be lost by the actions of her husband. She must make her own decisions regarding her nationality and she cannot be forced into a particular situation regarding her nationality.
Mrs Lubidla then asked if it was possible for a woman to have dual citizenship.
In South Africa, there is a liberal stance regarding this issue. South African citizenship legislation has no impediments to dual citizenship. However, there are certain control mechanisms which exist. One example of such a control mechanism is that, one must make an application for retention of citizenship, prior to obtaining citizenship of another country. If this application is not made, then the person will lose South African citizenship.
Reverend Moatshe said that the notion of dual citizenship sounded ''wrong'' to him, as it could result in a person having two pensions. The Department said that this was a political question, and, accordingly, they would not respond.
This marked the end of the briefing. This Convention will be ratified at the Committee's next meeting as there was no quorum.
Amendment to the committee's program
On the eighth of March, the committee was scheduled to be briefed by the Department of Health. This has been cancelled. Instead, a representative from Idasa will visit the committee to explain the provincial allocation of the budget.
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