Английская Википедия:Emaswati nationality law

Eswatini nationality law is regulated by the Constitution of Eswatini, as amended; the Swaziland Citizenship Act, and its revisions; and various international agreements to which the country is a signatory.Шаблон:Sfn Шаблон:Sfn These laws determine who is, or is eligible to be, a national of Eswatini.Шаблон:Sfn The legal means to acquire nationality, formal legal membership in a nation, differ from the domestic relationship of rights and obligations between a national and the nation, known as citizenship. Nationality describes the relationship of an individual to the state under international law, whereas citizenship is the domestic relationship of an individual within the nation.Шаблон:Sfn Шаблон:Sfn Eswatini nationality is typically obtained under the principle of jus soli, i.e. by birth in Eswatini, or jus sanguinis, born to parents with Eswatini nationality.Шаблон:Sfn It can be granted to persons with an affiliation to the country, or to a permanent resident who has lived in the country for a given period of time through naturalisation or the traditional khonta system.Шаблон:Sfn Шаблон:Sfn

Acquisition of nationality

Nationality can be acquired in Eswatini at birth or later in life through naturalisation or tradition.Шаблон:Sfn Шаблон:Sfn

By birth

Those who acquire nationality at birth include:

Children born in Eswatini, or aboard an aircraft or ship registered in or belonging to the Government of Eswatini, whose father is a Liswati, or would have been except for his death; orШаблон:Sfn Шаблон:Sfn
Illegitimate children born anywhere prior to 2005 whose mother is a Liswati can automatically derive nationality maternally, if the father is unknown, refuses to claim or adopt the child, or is stateless.Шаблон:Sfn Шаблон:Sfn^{[Notes 1]}
Children born abroad can derive nationality from a father who is a native Liswati, but subsequent generations cannot derive Eswatini nationality; orШаблон:Sfn
Abandoned children or orphans up to the age of seven discovered in the territory whose parents are unknown.Шаблон:Sfn

By naturalisation

Naturalisation can be granted to persons who have resided in the territory for a sufficient period of time to confirm they understand either English or siSwati, as well as are accepted as a Liswati by the customs and traditions of the society.Шаблон:Sfn General provisions are that applicants have good character; can economically be self-sufficient; and can contribute to development of the nation.Шаблон:Sfn Support by a chief, who has consulted with the chief's council, or three reputable citizens are required for an applicant to be approved for registration. Naturalised persons are required to swear an oath of allegiance before receiving their certification.Шаблон:Sfn Minor children are not able to be included in a naturalisation petition. Typically a residency period of five years is required.Шаблон:Sfn Persons who are not ethnically considered to be Emaswati, have difficulty in obtaining nationality.Шаблон:Sfn Other persons who may be naturalised include:

Illegitimate children born prior to 2005 of a native Emaswati mother and a known father, whose birth is registered;Шаблон:Sfn Шаблон:Sfn
Children born abroad to an Emaswati father who was also born abroad can apply for registration within one year of attaining majority;Шаблон:Sfn Шаблон:Sfn
Adoptees whose parents are Emaswati automatically acquire nationality at completion of a legal adoption; orШаблон:Sfn
The wife of an Emaswati national may acquire nationality by declaration upon marriage.Шаблон:Sfn

By khonta

Persons who have the support of the chiefs' council may acquire nationality under special provisions.Шаблон:Sfn Under traditional law and customary practice in Eswatini, foreigners and their wives who are accepted into a chiefdom are granted a piece of land on which they can build and farm. Unmarried women who have a male child can also be granted land title. This system, known as khonta allows the person to receive a certificate of acceptance by a specific chief to his territory as authorized by the King.Шаблон:Sfn Since passage of the 1992 Citizenship Act, attaining a certificate of khonta automatically grants nationality without the requirement for registration or formal naturalisation.Шаблон:Sfn

Loss of nationality

Emaswati nationals can renounce their nationality pending approval by the state to confirm the person will not become stateless.Шаблон:Sfn Naturalised persons may be denaturalised in Eswatini for fraud, misrepresentation, or concealment in a naturalisation petition; for acquiring dual nationality; or for residing outside of the country for an extended period of time exceeding seven years.Шаблон:Sfn Шаблон:Sfn There are no provisions for reacquisition of lost nationality in the statutes of Eswatini.Шаблон:Sfn

Dual nationality

Since 1967, dual nationality, with government authorization, is typically allowed in Eswatini for nationals by birth, but not naturalised persons.Шаблон:Sfn

History

Swazi Nation (1750–1906)

Clan groups which had independently migrated for three centuries into the area between the Lebombo Mountains and Pongola River came to accept the rule of the House of Dlamini in the mid-eighteenth century.Шаблон:Sfn Шаблон:Sfn Under the leadership of Ngwane III, inhabitants of the region were conquered or assimilated and the Swazi Nation was founded around 1770.Шаблон:Sfn Шаблон:Sfn During the Mfecane era, conflict with the Zulu Kingdom pushed Ngwane's subjects northward to the Mdzimba Mountains in the center of what would become Swaziland.Шаблон:Sfn Шаблон:Sfn In the tradition of royal divinity, the Swazi King was an agent of the gods and possessed divine powers which allowed him to rule as an absolute monarch. In exchange for his protection and maintenance of law and order, his subjects owed him unquestioned loyalty and obedience.Шаблон:Sfn The King used military conscription and favoritism to expand his power. By bestowing the authority to practice rituals on some chiefs and withholding it from others or bringing conscripts to the capital and allowing them to share in the bounty from raids and tribute payments, the king shifted loyalty from local chieftains to his central authority.Шаблон:Sfn To further centralise control, royal wives and princes were sent to govern in the provinces and were served by royally-appointed administrators, replacing the traditional chiefs.Шаблон:Sfn

By 1860, the Swazi Nation had grown and the Kingdom came into contact and conflict with the Boer Republic of Transvaal.Шаблон:Sfn Шаблон:Sfn A disputed succession after the death of Mswati II in 1865, led to an internal struggle and a scramble from external powers to gain influence in the nation.Шаблон:Sfn The 1867 discovery of diamonds in the Transvaal, followed by the 1871 discovery of gold, led to an influx of Europeans, anxious to secure prospecting concessions in the region.Шаблон:Sfn In the 1870s, conflict with the Zulu reemerged, as did hostilities with the Pedi people, and another succession crisis in 1874 with the suspicious death of King Ludvonga.Шаблон:Sfn These factors, combined with the destabilising invasion of miners, led the British to annex the Transvaal, which included the Swazi territory, in 1877.Шаблон:Sfn Шаблон:Sfn Шаблон:Sfn Resentful of the annexation, conflict between the Boers and British escalated into the First Boer War in 1880.Шаблон:Sfn At the conclusion of conflict, the Pretoria Convention of 1881, recognised the independence of the TransvaalШаблон:Sfn and the British formally established a protectorate over Swaziland.Шаблон:Sfn

British protectorate (1881–1968)

When British protectorates were established in 1815, there was little difference between the rights of British subjects and protected persons.Шаблон:Sfn By 1914, British protectorates were considered to be foreign territories lacking an internal government.Шаблон:Sfn Шаблон:Sfn When Britain extended this status over a territory, it took responsibility for both internal and external administration, including defense and foreign relations. Indigenous persons who were born in a protectorate were known as British Protected Persons (BPP) and were not entitled to be British nationals.Шаблон:Sfn BPPs had no right of return to the United Kingdom and were unable to exercise rights of citizenship; however, they could be issued a passport and could access diplomatic services when traveling abroad.Шаблон:Sfn Шаблон:Sfn Шаблон:Sfn Persons born in a British protectorate to a father who was a British national derived their nationality from their parent.Шаблон:Sfn Following the second British annexationШаблон:Sfn of the Transvaal and Second Boer War, in 1903, an Order in Council was passed by the British Parliament to allow the protectorate to be administered by the governor of Transvaal. Administration passed to the high commissioner for Basutoland, Bechuanaland, and Swaziland in 1906.Шаблон:Sfn In 1967, Swaziland's status was changed from a protectorate to a protected state, granting Swazis internal self-government under a constitution.Шаблон:Sfn

British subjects living in the Swaziland Protectorate (1881–1968)

In 1911, at the Imperial Conference a decision was made to draft a common nationality code for use across the British Empire.Шаблон:Sfn The British Nationality and Status of Aliens Act 1914 allowed local jurisdictions in the self-governing Dominions to continue regulating nationality in their territories, but also established an imperial nationality scheme for use throughout the realm.Шаблон:Sfn The uniform law, which went into effect on 1 January 1915, required a married woman to derive her nationality from her spouse, meaning if he was British, she was also, and if he was foreign, so was she.Шаблон:Sfn Шаблон:Sfn It stipulated that upon loss of nationality of a husband, a wife could declare that she wished to remain British. It also provided that if a marriage had terminated, through death or divorce, a British-born national who had lost her status through marriage could reacquire British nationality through naturalisation without meeting a residency requirement.Шаблон:Sfn The statute reiterated common law provisions for natural-born persons born within the realm on or after the effective date. By using the word person, the statute nullified legitimacy requirements for jus soli nationals, meaning an illegitimate child could derive nationality from its mother.Шаблон:Sfn For those born abroad on or after the effective date, legitimacy was still required, and could only be derived by a child from a British father (one generation), who was natural-born or naturalised.Шаблон:Sfn Naturalisations required five years residence or service to the Crown.Шаблон:Sfn

Amendments to the British Nationality Act were enacted in 1918, 1922, 1933 and 1943 changing derivative nationality by descent and modifying slightly provisions for women to lose their nationality upon marriage.Шаблон:Sfn Because of a rise in statelessness, a woman who did not automatically acquire her husband's nationality upon marriage or upon his naturalisation in another country, did not lose their British status after 1933.Шаблон:Sfn The 1943 revision allowed a child born abroad at any time to be a British national by descent if the Secretary of State agreed to register the birth.Шаблон:Sfn Under the terms of the British Nationality Act 1948, British nationals in Swaziland were reclassified at that time as "Citizens of the UK and Colonies" (CUKC).Шаблон:Sfn The basic British nationality scheme did not change overmuch, and typically those who were previously defined as British remained the same. Changes included that wives and children no longer automatically acquired the status of the husband or father, children who acquired nationality by descent no longer were required to make a retention declaration, and registrations for children born abroad were extended.Шаблон:Sfn

British protected persons living in the Swaziland Protectorate (1881–1968)

In 1914, the Alien Restriction Act clarified that while BPPs were not nationals, neither were they aliens.Шаблон:Sfn Шаблон:Sfn When the law was amended in 1919, that provision remained the same, meaning that BPPs could not naturalise.Шаблон:Sfn Шаблон:Sfn Until 1934, when the British Protected Persons Order was drafted, the status of BPP was not statutory, but rather granted at the prerogative of the monarch.Шаблон:Sfn Under the 1934 Order, Belonger status with regard to protected territories was defined to mean persons born before or after the Order in a protectorate who possessed no nationality and were not a British subject, or persons born abroad to a native of a protectorate who were stateless and not British subjects.Шаблон:Sfn The statute extended BPP status to children and wives of BPPs, if they were stateless, and specifically provided that if a woman married someone who was a national of another nation, she lost her BPP status.Шаблон:Sfn In 1943, the British Nationality Act clarified that BPPs born abroad in territories that were within the Crown's dominions were British subjects by virtue of jus soli, but those born within a protectorate were not subjects.Шаблон:Sfn

Under the terms of the British Nationality Act 1948, the status of BPPs in Swaziland did not change.Шаблон:Sfn However, the Act, while retaining the provisions that BPPs were not aliens and could not naturalise, allowed BPPs to register as BPP of a protected place or as a British subject under certain conditions.Шаблон:Sfn Шаблон:Sfn In 1949, the British Protectorates, Protected States and Protected Persons Order in Council repealed former orders about BPPs and detailed provisions for conferring protected status.Шаблон:Sfn It provided that protected persons were BPPs of a protectorate if they were born there; if they were born abroad to a father who was a native of a protectorate; or if at the time of their birth their father was a BPP. It also allowed women married to BPPs to register as a BPP and allowed certain nationals of foreign countries to register as BPPs.Шаблон:Sfn Minor changes to protected persons' status were made by Orders of Council in 1952, 1953, 1958, 1960, 1961, and 1962, but major changes did not occur until 1965.Шаблон:Sfn

Under the 1965 Order, the provisions of the 1949 order were retained, but new provisions for BPPs at birth included as BPPS, persons who would, except for the death of their father, have become BPPs; persons born aboard a ship or aircraft registered in a protectorate or unregistered but owned by the government of a protectorate; and foundlings discovered in a protectorate. In addition, stateless persons born prior to 28 January 1949 were allowed to register as BPPs if either of their parents were, or would have been except for death, BPPs on that date.Шаблон:Sfn Stateless persons born after that date could register if their parents were BPPs at the time of the child's birth.Шаблон:Sfn The drafting of the 1967 Constitution of Swaziland conferred nationality upon anyone born in the territory and anyone born outside the territory, prior to 24 April 1967, whose father was a native-born Swazi.Шаблон:Sfn Шаблон:Sfn Those born after independence would acquire nationality if their father was a Swazi national.Шаблон:Sfn Persons who had been naturalised in Swaziland, and persons who would have become nationals except for the death of their father prior to independence, were able to register as nationals. Subsequently, the Swaziland Citizenship Act of 1967 was passed, as was the Independence Act of 1968.Шаблон:Sfn Under the Citizenship Act, women who were married to Swazi nationals could register as nationals, as could persons who had been accepted as a Swazi (was considered khonta'd) as per custom.Шаблон:Sfn Шаблон:Sfn Legal adults of good character, who had resided in Swaziland for seven years and spoke English or siSwati and intended to keep a permanent residence in Swaziland could apply for naturalisation.Шаблон:Sfn

Post-independence (1968–present)

Swaziland gained full independence on 6 September 1968 under the Independence Constitution which provided for a Westminster system of governance.Шаблон:Sfn Шаблон:Sfn In an auto-coup d'état on 12 April 1973, the 1968 Constitution was repealed by King Sobhuza II.Шаблон:Sfn Шаблон:Sfn Шаблон:Sfn His actions were prompted by a legal action concerning the election of Bhekindlela T. Ngwenya to the Parliament of Swaziland.Шаблон:Sfn It was alleged that Ngwenya, who had been born in South Africa was not a Swazi national.Шаблон:Sfn Шаблон:Sfn He challenged the deportation order which declared he was a prohibited immigrant and the High Court of Swaziland set aside the deportation order. The King appealed the decision and before the appeal could be heard, abrogated the constitution and amended the Immigration Act of 1972.Шаблон:Sfn Ngwenya was invited to appear before a tribunal established by the amendment to the Immigration Act to defend his claim to nationality. Though the tribunal determined he was not Swazi, Ngwenya launched an appeal.Шаблон:Sfn Шаблон:Sfn The Court of Appeals overturned the tribunal's decision on the basis that the tribunal was established by the legislature to interfere with the judiciary's authority.Шаблон:Sfn

In reaction, King Sobhuza II declared on 12 April 1973, the King's Proclamation to the Nation, granting himself autocracy and vesting all executive, judicial, and legislative authority in himself, ruling by royal decrees and proclamations.Шаблон:Sfn Шаблон:Sfn Sobhuza issued a royal decree (Citizenships Order 1974) with an effective date of 12 April 1973 which provided that persons who became nationals at independence could only retain that status if their father was a Swazi national at the time of their birth and if born abroad, the father had at the time of the child's birth a permanent domicile in Swaziland.Шаблон:Sfn The order maintained provisions for wives, children whose parents had died, and persons with khonta'd to register as nationals.Шаблон:Sfn The decree meant that there were numerous persons who lost their Swazi nationality in 1973.Шаблон:Sfn Шаблон:Sfn In 1978, Order 23 (Establishment of the Parliament of Swaziland), reconstituted the Parliament of Swaziland, but did not lift the ban on political parties, nor the absolute authority of the King for all three governmental branches.Шаблон:Sfn Шаблон:Sfn When King Sobhuza II died, his successor Mswati III's first royal decree when he assumed office in 1987 was to confirm his absolute authority.Шаблон:Sfn

As both the High and Appellate Courts had ruled that the constitution had been unlawfully repealed, the King ordered commissions in 1992 and 1996 to evaluate developing a new constitution. The committee findings were confidential and only disclosed to the King.Шаблон:Sfn Though unable to draft a constitution, the Citizenship Act was redrafted in 1992.Шаблон:Sfn Шаблон:Sfn It provided for children to acquire nationality from either parent, with conditions. Children born to Emaswati fathers were automatically nationals, but children born to Emaswati mothers must have been illegitimate and their nationality was subject to conditions. To derive nationality automatically from the mother, a child must have been illegitimate and the father must have been unknown, had no nationality, or if known refused to claim the child.Шаблон:Sfn Children born within a marriage to an Emaswati mother and a foreign father were required to apply for naturalisation.Шаблон:Sfn The automatic right to nationality by birth for children born abroad occurred only if one parent was born in Eswatini.Шаблон:Sfn Children born abroad to an Emaswati national who was also born abroad were required to declare that they wish to retain Emaswati nationality within one year of reaching majority or it was forfeited.Шаблон:Sfn

In 2002, civil society organisations took the matter of abrogating the 1968 Constitution to court. The High Court of Swaziland and the appellate court ruled that the repeal of the constitution was unlawful.Шаблон:Sfn The ruling by the Court of Appeal stated that the King did not have the authority to rule by decree, prompting an official response that the court could not deprive the authority of the monarch and the ruling would be ignored. In response, the entire bench of the appellate court resigned.Шаблон:Sfn The King appointed another constitutional drafting committee which produced a draft constitution in 2003. The draft was criticised by both local and international organisations for its lack of consultation with the public and transparency.Шаблон:Sfn The King summoned his subjects to debate the draft at the Ludzidzini Royal Village. Despite complaints from human rights organisations that the discussion curtailed participation, in 2004, the constitution was submitted to parliament.Шаблон:Sfn

With the passage of the 2005 Constitution, a discrepancy in law occurred, as the constitution only allows children born after it went into effect to derive nationality from a father.Шаблон:Sfn The constitution supersedes the Citizenship Act, thus its provisions override provisions in the nationality law.Шаблон:Sfn Though the government answered a 2013 Universal Periodic Review with regard to the discrepancy that its approach allows women to exercise their rights in a manner consistent with Swazi law and custom, the reviewers noted that the constitution does not allow women equal pathways for their children or foreign spouse to derive their nationality.Шаблон:Sfn Sections 43, 46, 48 of the 2005 Constitution, by providing nationality solely paternally establish discriminatory principles and contradict Article 20 of the same instrument, which prohibits discrimination on the basis of age, birth, colour, creed or religion, disability, ethnic origin or race, gender, political allegiance, or socio-economic class.Шаблон:Sfn In 2018, the name of the Kingdom of Swaziland was officially changed to Eswatini.Шаблон:Sfn In 2021, the government was in the process of reviewing the nationality law and had made commitments to human rights organisations which monitor international agreements that changes would be forthcoming by 2024.Шаблон:Sfn

Notes

Шаблон:Reflist

References

Citations

Шаблон:Reflist

Bibliography

Шаблон:Refbegin

Шаблон:Refend

Шаблон:Nationality laws Шаблон:Commonwealth citizenship

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[Notes 1]

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