A critical examination of the meaning of the words "ordinarily resident" in article 4 (d) of the Namibian constitution in relation to acquisition of citizenship
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Date
2019
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University of Namibia
Abstract
The purpose of the study was to critically analyse and examine the definition and meaning of the words “ordinarily resident” as stated in Article 4 (1) (d) of the Namibian Constitution. The crux of the study was to determine who qualifies to benefit from the provisions of this Article of the lex fundamentalis in as far as the acquisition of citizenship is concerned. In a nutshell, the study was an analysis of the two judgments pronounced by the High and Supreme Courts of Namibia in the De Wilde case.
The study used a qualitative research method as opposed to a quantitative research method, which involved an extensive and comprehensive research method through books, cases, legislation, legal opinions and the internet. The findings made in this study were made based on documentary material that was available to the researcher, with a comparative analysis of other jurisdictions made with that of Namibia with regard to the acquisition of citizenship based on what is termed as immigrants and/or refugees who would describe their stay as ordinary in the country. The eventual findings and recommendations are based on how the Supreme Court went on to define the words of the Constitution and how the Constitution is to be interpreted, which is to give it a purposive interpretative approach so as to provide protection to as varied a class of people as possible. Whereas the High Court of Namibia found that for one to be ordinarily resident, one must be in possession of a permanent residency permit. This approach was to give administrative bodies and officials an opportunity to establish without undue difficulty whether a person was ordinarily resident in Namibia or not. The High Court of Namibia used a strict literal interpretation of the words “ordinarily resident” and said that a permanent residency permit was the ultimate requirement to lay a claim to Article 4 (1) (d). The Supreme Court on appeal was of the opinion that a person living in Namibia on an employment permit under immigration legislation or enjoying a residency status other than permanent residence is not merely by reason of that fact, excluded from claiming to be ordinarily resident in Namibia as contemplated in Article 4 (1) (d) of the Namibian Constitution. This was because permanent residence was discussed elsewhere in Artcile 4 (8) (c) and could thus not be used interchangeably with the term ordinarily resident. Interpretation of the Constitution should be purposive and value-based.
Description
A thesis submitted in partial fulfilment of the requirements for the Degree of Master of Laws
Keywords
Ordinarily resident, Citizenship