CLAUDIA PIZZOCRI: Soil, blood, DNA and identity

Donald Trump’s inauguration in the US was swiftly followed by a series of executive orders across a wide range of issues, from immigration to citizenship, civil rights and trade. Some of these orders have already been challenged in various federal lawsuits across the US, including his order to end unrestricted birthright citizenship. As early as January 23, in Seattle, a senior US district judge issued an order blocking the policy from taking effect for 14 days. Litigation on this is far from over.

Birthright citizenship, as envisioned and enshrined in the US constitution, reflects the legal principle of jus soli (“right of soil”) in its widest application. The 14th constitutional amendment guarantees the citizenship of all children born in the US regardless of race, colour or ancestry, and irrespective of the parents’ or child’s immigration status. For some, it encapsulates, in their purest form, American values and the “American dream”.  For others, it is responsible for cultural adulteration and contributes to the increase in illegal immigration and the contentious phenomenon of “anchor-babies”.

The global debate surrounding jus soli policies and their application has been decades long and has become core to political divisionism. In its most simplistic interpretation, the conflict surrounding it pertains to opposing values and interests of identity from an individual and collective perspective. There are still 33 countries across the world that offer unrestricted birthright citizenship, Canada and the US included.

By contrast, many countries, including SA, have over the years taken steps to distance their nationality legislation from the principle of jus soli, either by removing it completely or, as per Trump’s order, by limiting its application. Trump’s order seeks to limit the application of jus soli to only children born in the US to parents who have permanent legal status at the time of the child’s birth.

Until January 1 2013, when the Citizenship Amendment Act of 2010 came into effect, the SA Citizenship Act of 1995 had a provision closely aligned to what Trump’s executive order seeks to implement. Before 2013, foreign children born of at least one permanent resident parent were automatically SA citizens at the time of birth, and their SA citizenship was captured and recorded on registering their births.

By 2013 this policy was curtailed entirely in SA, except for children born in the republic who would otherwise be stateless. SA’s stance on birthright citizenship shifted to a claim to citizenship that is formalised with an application — thus not automatic — and is ripe only after the child reaches the age of majority, a cognisant affirmative application made by those who have developed a deep sense of belonging over their formative years.

Two further conditions must be met: the birth of the child must have been duly registered in SA in terms of the Births and Deaths Registration Act; and the child must have lived in SA from birth to the age of majority. Whether the parents or the child were permanent residents at the time of birth is no longer relevant, as long as the status is in place at the time of the application. On a side note, to date no home affairs form has been gazetted for these specific applications.

Other countries, including Italy, France, Germany and Poland, use parentage as predominant to the right to citizenship. Jus sanguinis (blood right) is a principle of citizenship that grants citizenship based on parentage, rather than place of birth. SA fully joined these ranks only after 2020, after the Constitutional Court judgment declaring invalid provisions of the Citizenship and Births and Deaths Registration acts, which, read together, in effect discriminated against SA children born overseas by barring them from claiming their right to SA citizenship unless their births had been registered within 30 days.

In terms of current citizenship legislation, SA applies the jus sanguinis principle as long as at the time of the birth of the child — irrespective the place of birth — at least one parent was an SA citizen. Now home affairs accepts for processing applications for the late registration of birth even when the birth occurred overseas. A registration of birth is deemed “late” when it does not occur within 30 days of birth.

Many South Africans born overseas have as a consequence sought to claim their right to citizenship retrospectively  through this process in recent years. Inexplicably, the intake policies surrounding these applications vary substantially depending on whether an application is submitted in SA or from overseas, and the processing time frames can easily double for any citizenship-related application submitted overseas.

Arbitrary policies

Foreign births registrations within SA at home affairs offices rely on the physical presence on the day of submission of the child and both parents when the child is a minor, and the SA parent irrespective of the age of the child. Furthermore, DNA testing is being arbitrarily imposed as mandatory for the registration of a child over the age of 15, notwithstanding the presence of supporting unabridged birth certificates extracted from the foreign population register, which confirm beyond dispute the parentage and identity of the child.

Home affairs officials dealing with these processes seem to be oblivious to the fact that the Births and Deaths Registration Act regulations of 2014 speak solely of paternity DNA testing in relation to the amendments of the details of a pre-existing SA record of the birth.

It has been argued that xenophobia and nationalism continue to be intertwined globally because of an unresolved conflict between the “inclusivist” and “exclusivist” elements of the “nation state” idea. Plenty of scholarly articles and publications have been dedicated to probing the understanding of whether a common SA nationalism does in fact exist. Transposing imaginative ideals of what constitutes a nation into inclusionary or exclusionary policies surrounding citizenship is even more arduous and complex within countries forged on the premise of inclusion and diversity, such as the US and SA.

The late archbishop Desmond Tutu’s concept of a “Rainbow Nation” offered the first description of a hopeful notion of citizenship after 1994. In 1996, on the occasion of the new SA constitution coming into force, then deputy president Thabo Mbeki used as interchangeable the terms “African” and “South African” in his now famous “I am an African” speech, thus expanding the notion of a collective nation, based on the interconnectedness of the people’s identity to embrace shared value systems.

Yet SA today is plagued by unprecedented levels of xenophobia and exclusionism, crippling the hopeful premise the nation was built on. Misinformation and disinformation reign free, often cloaked by the cowardly anonymity the targeted narrowness of social media offers. According to the American Psychological Association: “People are more likely to share misinformation when it aligns with personal identity or social norms ... and when it elicits strong emotion.”

Beyond blood, soil and the boundaries of the idea of nation-statehoods, citizenship remains highly charged, with a hardly reconcilable emotional component of personal identity and sense of belonging.

• Pizzocri is CEO at citizenship and immigration law firm Eisenberg & Associates.