missions in Zimbabwe and South Africa in such a way that anyone
born outside Malawi, even if they actually do not qualify under the
law for citizenship in the country of birth, loses his citizenship from
the viewpoint of Malawi if he does not comply with section 7 by
age 22. Malawian authorities simply apply the presumption that
the individual has a claim to another nationality by birth abroad.
What this means is that any person born to a Malawian parent in
South Africa will lose citizenship if he or she does not fulfil section 7
requirements prior to age 22. This includes the requirement that he
or she intend to permanently reside in Malawi – a difficult
prerequisite for someone born outside Malawi who has never
stepped foot on the territory.
South Africa does not provide citizenship by mere birth on the
territory. Even though children born in South Africa to Malawian
parents are not entitled to South African citizenship, the Malawian
foreign mission will require them to comply with section 7. This
interpretation and application of a prohibition on dual citizenship is
common across southern Africa – countries adopt a better-safethan-sorry approach by interpreting legislation broadly. It could be
a result of lack of training and knowledge, but foreign missions
seem to prefer to err on the side of depriving would-be citizens of
nationality rather than doing a legal analysis of the nationality law
in other countries where their citizens give birth – in order to
determine whether such children actually do become citizens ‘of
some other country.’
While children born abroad to Malawian citizens by birth can
apply for restoration of their citizenship (section 27 of the
Citizenship Act), it is a discretionary procedure – not a right. In
addition, applicants must travel to Malawi to submit their
restoration applications and yet Malawian foreign missions refuse to
issue emergency travel documents to persons who are not already
recognised as nationals. Restoration applicants who do not hold
another nationality must then travel illegally to Malawi to lodge
their – discretionary – applications. Costs are also prohibitive for
many would-be applicants: as of 2011, applications cost $120 and
if approved, applicants must also pay unknown and potentially
prohibitive ‘citizenship fees.’ In one case, a client of LHR was told
by the Malawian Consulate that she could be asked to pay
K500,000 – equal to about R12,680 – for the citizenship fee.
Malawi also has a racial requirement in its citizenship law. For
children born both inside and outside of Malawi, they must have a
parent who is not only a citizen but also ‘a person of African race.’
Another caveat in the law impacts second generation children of
Malawian migrants. According to section 5 of the Citizenship Act,
Malawians can only pass on their nationality to children born
outside Malawi if one parent is a citizen by birth (i.e. was born in
90
Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide
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