Continued from last week

How would a Change in Section 41 benefit Political Stability in Lesotho?

The effectiveness of Section 41 of Lesotho’s Constitution depends on other countries’ laws: an individual who can acquire Lesotho’s citizenship first can later easily acquire and enjoy citizenship of any country, or countries, that grant citizenship rights without requiring renunciation of current citizenship.

That being the case, of the many questions that may be asked, then, the first one would be: If, as we have argued, Lesotho anti-dual citizenship laws are not completely efficacious in their attempt to prohibit dual citizenship, is it necessary to change Section 41 and subordinate laws?
The answer to the question is in the affirmative. Section 41 needs to be changed because it was intended to prohibit dual citizenship, and sometimes intention of the lawmaker is enough grounds to be basis of judgement in cases of dispute.

In this instance, the courts may find against a Lesotho citizen who acquired citizenship of another simply because he is citizenship of a country whose legal regime was intended to prohibit dual citizenship. We need constitutional changes whose intention is to allow dual citizenship, and laws which will be efficacious in supporting the idea and practice of dual citizenship.

As a small country that lies entirely within the boundaries of South Africa, Lesotho has had relationships with South Africa which have been, largely, shaped by the differing economic positions of the two countries.  When, during lifaqane, in the early 1820s, Basotho were faced with hunger and starvation that resulted from the instability of lifaqane, they scattered throughout modern South Africa, and as far as the Cape Colony, where some were employed in various occupations, and accumulated some wealth which they brought to Lesotho when they returned, in the 1830s.

When, in the thirty years that followed, Basotho found themselves being increasingly squeezed on small territory, as a result of loss territory and arrival of more groups fleeing wars and environmental disasters,15 the stability of the polity was possible because Basotho had legal and illegal access to economic activity in territory across colonial boundaries.
To the extent that some of the activities to gain access to means of livelihood were illegal, they were a direct cause of military conflicts between Free State Boers and Basotho—the most decisive of which was the 1865-1867 war.

For purposes of this paper, it is important to state that, Britain’s decision to colonise Basotho and what was left of their territory, in 1868, was driven by concerns over the political instability that the wars caused in the Mohokare Valley, and British officials’ recognition that, political instability inhered in circumstances that had been created in the Mohokare Valley since the 1830s. As Michael Ward pointed out, British colonial rule in Lesotho put more “…emphasis…on establishing and maintaining stable…” political conditions in the territory.

It was not that colonisation per se would restore political stability in Basotho polity and Basotho’s relations with the adjacent settler community. Rather, as a regional colonial power, Britain had resources and power in the region to establish necessary economic and political conditions that would undermine instability-causing conditions. Such powers included the power to allow Basotho movement and access to the larger political economy of the region.

Thus, under colonial rule, Basotho’s social order was stable because the colonial government encouraged various forms of dependence on economic activity across the border. For over a century, individuals and whole families went to work in the mines, farms and industry, and sent money to relatives left in Lesotho.

Some returned, and others settled permanently. In these ways, relationships that people of Lesotho established with South Africa over the years were not only economic but, just as important, they were also social.

Changes in Lesotho’s citizenship laws would make it easier for people to pursue citizenship of South Africa without any fear of breaking the law, and without fear of implications of renouncing their citizenship of Lesotho.

This done, access to livelihood opportunities, such as existed under colonial rule, would be open to Basotho holders of citizenship of both Lesotho and South Africa. In this way, the political instability that is caused by the weaknesses of Lesotho’s economy and restricted opportunities could be greatly reduced.

Throughout, economists and others who have studied Lesotho’s economy have been unanimous in their prognosis that Lesotho’s current and future economic prospects are bleak. After describing Lesotho’s economic situation and analysing prospects the country’s economy, as independence approached, in 1966, Michael Ward observed:

The economic prospects for Lesotho… are dim and in the short run [the country] has virtually no hope of becoming economically viable or independent of South Africa…

Some twenty years later, in 1986, Paul Wellings observed:

…there can be few countries with poorer prospects than Lesotho for the development of a viable domestic economy. Whilst international aid has become increasingly important to Lesotho’s development effort, the country survives only through its participation in the South African regional economy, and remains heavily dependent on South Africa.

After close to forty years of independence, and after experimentation with all manner of policies of economic development, one of the prominent economists who have studied Lesotho’s economy for many years, concluded, in 2004, that there is very little that can be done to make the country’s economy viable. In his own words,

It is difficult to envisage a set of policies that could change Lesotho’s status from what it now is: a relatively impoverished peripheral appendage to South Africa from which the more talented, skilled, industrious, or desperate will increasingly migrate to more prosperous places in South Africa.
This means that, to the extent that connections can be made between the weakness of Lesotho’s economy, on the one hand, and persistent political instability, on the other, attempts to tackle the problem of instability through changing the country’s economic fortunes alone seem hopeless.
Enabling Basotho to acquire citizenship of South Africa — and that of other countries they may wish to acquire — will help improve conditions of many who work in South Africa under current conditions. Currently, many Basotho who enter the South African labour market as casual labourers experience horrendous exploitation by employers, and at border posts between Lesotho and South Africa.

South African employers of Basotho casual labourers pay them bad wages, and even refuse to pay, knowing full-well that, as illegal workers, they have no rights and they cannot complain about their treatment officially.

Arriving back at border posts on their way home with the little they make as illegal casual labourers, they find Lesotho and South African immigration officials accusing them of having overstayed in South Africa, and demanding bribes in return for not pressing charges against them.
Politically, people in diaspora — such as Basotho holders of dual citizenship would become if they chose to reside in South Africa — are much more nationalistic, patriotic, and have more romantic perceptions of their countries of birth than those who remain at home.

This makes them important ambassadors of their countries. In this way, wherever opportunities present themselves, they promote the courses of their countries of birth. Thus, for example, in US national elections, people from, say, Turkey, who gain American citizenship, vote for a party which promises to maintain, or improve, Turkey’s benefits on the international economic and political stages.

This may happen with Basotho who acquire citizenship of, say, South Africa, and take part in the country’s national and local elections.
Perhaps a most compelling argument for allowing Basotho acquire citizenship of other countries whose citizenship they may wish to acquire, applies to acquisition of South Africa’s citizenship. There is very little doubt that, existing geopolitical conditions restricting Basotho’s citizenship to a small country with an unlikely economy were fashioned under colonial and settler injustice. As if this was not enough, confined to this small economically unviable territory, Basotho and their country bore political, economic and social costs creating South Africa’s prosperity.

As matters stand, it is not the families of majority of migrant workers whose labour built South Africa’s prosperity who benefit from that prosperity; instead, it is a section of Lesotho’s middle classes who are able to acquire South Africa’s citizenship, the law notwithstanding.
Allowing Basotho to acquire South Africa citizenship will go some way to redress these injustices of exploitation, conquest, exclusion, and others.
Fortunately, Lesotho’s Judiciary has already provided leadership on the issue of dual citizenship by criticising, and ruling against, the state’s attempts to enforce Lesotho’s current anti-dual citizenship laws.

A recent example of this was a case between Adam Pholoana Lekhoaba et al., on the one hand, and Director of Immigration and Others, on the other. Reverend Lekhooaba was a Mosotho who had lived in South Africa and acquired citizenship rights of that country.
After years of living in South Africa, he had returned to Lesotho and established a radio station which was critical of politicians in power at the time. In March, 2007, government of Lesotho decided to deport him on grounds that he was a South African citizen. In his judgement, Judge S. N. Peete said:

The concept or phenomenon of “dual citizenship” prohibition is in my view predicated upon traditional notions of nationhood and sovereignty and upon attendant rights and obligations of the citizen; that is: You are a citizen of country X and cannot contemporaneously enjoy citizenship rights of country Y.

This prohibition, the Judge pointed out, is “[a]rchaic… in a global and cosmopolitan world of today”.

Reservations

There may, also, be fears that, by allowing Lesotho’s citizens to gain citizenship rights of other countries, the country may lose its sovereignty, and lose sovereignty over its people. Perhaps Lesotho’s fears of this nature should be even greater, given that, its only neighbour is many times more powerful, and has many times more opportunities.

Smaller countries, like Denmark, have similar fears about their membership of European Union with more powerful and economically stronger neighbours, such as Germany. However, loss, or waning, of sovereignty is a reality that many countries face, including nation-states more politically powerful, and more economically well-resourced, than Lesotho.

The response of many countries to waning sovereignty over citizens has not been prohibition, or continued prohibition, against dual citizenship; instead, the response has taken the form of attempts at managing the contradiction of maintaining nation-statehood in a world in which many forces are working against some core, or ‘traditional’, characteristics of nation-statehood.

Part of the title of James Cobbe’s work, quoted above, is the question: “Will the Enclave [i.e. Lesotho] Empty?” Applied to this paper, the question would be: “Will Basotho leave Lesotho to settle in the Republic of South Africa, if they were given, and used, the opportunity to acquire South African citizenship?”

The answer to this question is uncertain, and depends on many known and unknown factors, and on how things will develop. However, the fact that we do not know what will happen next is no justification to continue constitutional prohibition against dual citizenship.
There is need to act on the basis of a reality that we know of the relationship between current conditions of Basotho’s livelihood, on the one hand, and persistence of political instability in the country, on the other.

A political reservation that some may have regarding changing the law to allow multiple citizenship is that, there is no guarantee that a diaspora community will always act in the interests of their country of birth — they may also act in the interests of their acquired home-country with potential for undesirable consequences for their country of birth.

A powerful diaspora originally from a country with a weak economy and a weak government can exert different kinds of pressure in ways that benefit their adopted country, or their lifestyle in their adopted country. Again, response to this should not be prohibition but management of the challenges that may arise.

Partner to Tango

Were Lesotho’s citizenship law to change, Basotho who wish to gain citizenship of another country and retain their citizenship of Lesotho would gain opportunity to apply for citizenship of any other countries that allow such an arrangement. In practice, however, for historical, social and political economy reasons, the ‘other citizenship’ that most Basotho are more likely to wish to acquire is South Africa’s. The question, then, would be whether it would be possible for Basotho who wish to do so, to acquire South African citizenship.

In some ways, it can be argued that, in fact, the question does not arise because South African citizenship laws allow for dual citizenship, and all what Basotho who wish to can apply for South African citizenship once Lesotho’s citizenship laws are changed.
However, the sense in which the question is relevant is that, in the circumstances of the two countries, Lesotho and South Africa would need to agree terms which would oblige South African government to treat Basotho’s application of South African citizenship differently from applications of citizens of other countries.
On these grounds, the question — whether it would be possible for Basotho who wish to do so, to acquire South African citizenship — needs to be raised, and attempts made to address it.
The present generation of political leadership in South Africa are inheritors of a long-standing recognition, among Africanists and African nationalists in South Africa, that land left to Basotho after years of settler and colonial land dispossession in the nineteenth century is not enough to reproduce life.
Evidence of the existence of this recognition includes the fact that, in general, the South Africa liberation movement was well-disposed towards any decision Basotho might make in the nature of their country’s relations with South Africa; this could inclusion anything from dual citizenship to some kind of union with South Africa.

As was stated in the Freedom Charter, “The people of the protectorates, Basutoland, Bechuanaland and Swaziland shall be free to decide for themselves their own future…”. For their part, during the struggle against minority-rule, the labour formations aligned to the liberation movement committed themselves to work for a “…non-racial democratic state…”which “… would actively seek to promote regional economic cooperation along new lines — in ways that would not be exploitative and will correct imbalances in current relationships…”

Specifically, two leaders of the ANC appreciated consequences of historical problem of colonial and settler expropriation of Basotho’s land, and showed themselves to be well-disposed to consider proposals for change in the status quo. Thus, in 1982, Oliver Tambo was quoted as having told a press conference that

…he had agreed with Lesotho leaders on the issue that they should fight for restoration of their land once the struggle for freedom had come to an end. He said that did not mean Lesotho would have abandoned its fight for restoration of its land which is known to stretch as far as Lekoa river and to be bearing diamonds and gold.

Further, visiting Lesotho, as recently as 1995, Nelson Mandela undertook to consider overtures that Lesotho government might make to South Africa regarding access to the sea. Highly welcome as it was, success of the labour movement, in 1995, in securing South African government’s agreement to grant permanent residential and citizenship rights to certain categories of migrant workers, did not address issues of dual citizenship. Without constitutional change in Lesotho, it meant that, those Basotho who applied for South African citizenship had to renounce their citizenship of Lesotho and rights attached to it.

This difficulty notwithstanding, it is significant that, in this concession, which was available to migrant workers from all over southern Africa working in South Africa, Basotho migrant miners were in the majority among applicants for the permanent residence permits—a stage in the process to acquire South African citizenship.

Apart from responses of South African political movements, official, and state to overtures regarding Basotho’s access South African citizenship on special terms, there is also popular response to consider; that is to say, the response of the South African middle-class, working-class, street vendors, and others, who may object to having to compete for opportunities with Basotho.

This is a much more difficult task. As of now, it can be said that, together with Batswana and Maswati, Basotho have not been victims of attacks against foreigners in South Africa; there aren’t many reports of difficulties experienced by Basotho mine migrant workers on grounds of their non-citizenship of South Africa; there aren’t many reported difficulties for Basotho who have joined the labour force at white collar and blue collar levels in the public and private sectors.

Nonetheless, it needs to be admitted that, none of this provides a reliable means of assessing South Africans’ popular response to their government agreeing special terms for Basotho’s acquisition of citizenship of South Africa and attendant rights.

Summary/Conclusions

It is arguable that structural and other circumstances of Lesotho’s statehood have played, at least, a part in persistent instability in the country. This being the case, changing Lesotho’s Constitution and relevant subordinate laws to allow multiple citizenship may go a long way to assist efforts to establish political stability in Lesotho by reducing socio-economic and political pressures that cause, or contribute to, the country’s political instability.

Psychologically, such a change would remove a sense Basotho may have, of being cooped up in small territory with limited opportunities, and remove other psychological and material senses of overcrowding; materially, the change will open up possibilities of gaining access to opportunities in other countries and, thereby, reduce socio-economic consequences of overcrowding in a small marginal territory, including political instability.
As indicated above, it is doubtful that Section 41 of Lesotho Constitution is effective in prohibiting dual citizenship, and it is likely that many Basotho already hold citizenship rights of at least one other country over and above Lesotho’s.

Majority of these are likely to be members of Lesotho ruling and middle classes who do not have the same fears of breaking the law as ordinary Basotho, and are able to ignore threats of being excluded from Lesotho.  More importantly, however, this change may make a contribution of very far-reaching consequences in the lives of Basotho who may wish to acquire citizenship of other countries.

By: Motlatsi Thabane