By Clement Kulang
According to section (21) subsections (a), (b) & (c) and section (22) subsection (3) of the National Electoral Law 2009 and in order to qualify for registration for the purposes of elections, you must be:
•A Sudanese citizen;
•Over the age of (18) years;
•Of sound mind; and
•In possession of a valid Sudanese passport and a valid residence permit in the country where you reside.
The majority of Sudanese expatriates,especially those in the Arab Gulf countries would qualify for registration as such because they have retained their Sudanese citizenship.
The difficulty arises when it comes to those who have left the country and acquired other nationalities. Are they still Sudanese and enjoy the same legal rights according to the Constitution of the Sudan and its laws? The answer is definitely no.
Part II section (5) of the Sudanese Nationality Act 1957 defines who is a Sudanese by descent and Part III section (8) defines a Sudanese citizen by naturalization. The majority of us meet the definition of a Sudanese by descent rather than by naturalization and as such we are or were Sudanese by descent at one point in time.
Nevertheless, most, if not all of us, have not retained our Sudanese citizenship according to the current act of Parliament, which was last amended in 1974. This is the point I have been trying to draw attention to and calling for urgent amendments.
Part IV section (12) of the Sudanese Nationality Act 1957 deals with loss or deprivation of Sudanese nationality. You would have lost your nationality according to this section if you acquired another nationality or have taken an oath or affirmation of allegiance to a foreign country. Those of us who have acquired British or other citizenship would have fallen foul of this section of the Act because we have acquired another nationality and/or taken oath or affirmation of allegiance to the Queen or our country of nationality. Even those who got their new nationality by marriage would fall foul of this Act by virtue of making an oath or confirmation of allegiance to another country.
Therefore, let us not kid ourselves that we have retained our Sudanese nationality. The fact is we have not whether we like it or not. By producing a foreign passport, you are no doubt informing the Sudanese President that you have obtained the nationality of another country, which is a proof beyond any reasonable doubt and would subsequently invoke the provisions of Part IV section (12) of the Sudanese Nationality Act 1957 or section 13 as applicable. Most worryingly, our children born abroad who automatically loose any claims to Sudanese citizenship or nationality by virtue of Part IV section 16 of the Sudanese Nationality Act 1957.
Hence, it is naive to assume that the Sudanese President would ignore or overlook the provisions of this Act. That is why I say the National Congress Party (NCP) are smart bunch of people and they are constantly moving one step ahead of us. They know very well that the law does not allow dual nationality and if they say otherwise without actually amending the law then they must be lying and playing games.
The majority of the Sudanese from northern Sudan living abroad are still Sudanese citizens/nationals. The Sudanese Nationality Act has not been amended and the last amendment was that of 1974. I have explained yesterday why I do believe that most if not all Sudanese living in the UK would not qualify and this includes those living abroad elsewhere.
Sudanese citizens/nationals working abroad (expatriates) do qualify for registration by law. They are known to the government because they are registered and pay tax through the expatriates' affairs organ in Khartoum. What the government does not know is the number of the Sudanese from South Sudan living abroad and who have had other forms of nationality.
To encourage people to register knowing pretty well that they will not qualify by virtue of the law is to play right into the hands of the NCP. I dare defy the legal advisors of the Sudan People’s Liberation Movement (SPLM) or the Government of South Sudan (GOSS) to convince us otherwise as the law stands at the moment.
I suspect the whole exercise is to enable them to know the number of the people living abroad, especially Southern Sudanese. If the number is huge, then the NCP will play it by the law and argue that those people are not qualified by law. If the number is not significant then they will play the role of the heroes and pass an amendment to the law to allow dual nationality in the spirit of democracy and unity of the country. It could also be the motive that the NCP is trying to make an image for itself ostensibly trying to assure the international community that the forthcoming general elections would be open, fair and open to all Sudanese citizens in and out of the country.
I am not dissuading people from registering if they indeed qualify by law. My other half certainly qualifies and we will head to the centre to register.
However, I want us to be vigilant and do things the right way. We took the NCP to Arbitration over Abyei because we had a case which was well built and prepared. This time round if we were to take the NCP to Arbitration over the issue of registration, I have no doubt in my mind that we would loose and as a lawyer my advice would be not to waste time and money instigating such proceedings. It goes without saying that I will not encourage people to take part in an inept exercise.
It is pertinent at this stage to make things crystal clear and ensure that we will not be caught sleeping on duty again. Members of Parliament in Khartoum should revisit the various laws relating to nationality, election, and repatriation of Sudanese living abroad. They should discuss accordingly and table any proposed amendment.
FOR THE ABOVE REASONS, I CALL UPON THE SPLM AND OUR POLITICIANS IN THE SUDAN TO DO SOMETHING ABOUT THIS ISSUE BEFORE IT IS TOO LATE.
For ease of reference, I have included the provisions of section 12 of the Sudanese Nationality Act 1957 below.
PART IV-LOSS OR DEPRIVATION OF NATIONALITY
12. Loss by voluntary act. Where the President of the Republic is satisfied that a Sudanese of full age and capacity,-
(a)has acquired the nationality of a foreign country by any voluntary and formal act other than marriage; or
(b)has made a declaration renouncing his Sudanese nationality:
Provided however, that the President of the Republic may refuse to accept such declaration if it is made during the continuance of any war in which the Sudan is engaged; or
(c)has, after the commencement of this Act, taken or made an oath, affirmation or other declaration of allegiance to a foreign country; or
(d)has entered or continued in the service of a foreign country, in contravention of any express provision of any law in that behalf; the President of the Republic may order that such person shall cease to be a Sudanese.
13. Deprivation of nationality.
(1)Where the President of the Republic is satisfied that a Sudanese by naturalization, -
(a)has obtained his certificate of naturalization by fraud, false representation or the concealment of any material fact; or
(b)has, during any war in which the Sudan is or has been engaged, unlawfully traded or communicated with enemy or with he enemy or subject of any enemy State or has been engaged in, or associated with, any business that was to his knowledge carried on in such a manner as to assist an enemy in that war; or
(c)has within five years after the date on which he was naturalized, been sentenced in any country to imprisonment for a term not less than one year, for an offence involving moral turpitude; or[10]
(d)if out of the Sudan, has shown himself by act or speech to be disloyal or disaffected towards the Sudan; or
(e) if in the Sudan, has been convicted of any offence involving disloyalty or disaffection to the Sudan; or
(f) has resided outside the Sudan for a continuous period of five years, unless,-
(I) he has so resided by reason of his service under the Sudan Government of his service with an international organization of which the Sudan is a member; or
(ii) he has so resided as the representative or employee of a person, company or firm, resident or established in the Sudan; or
(iii)in the case of a wife or minor child of a person referred to in sub-paragraph (I) or (ii), such wife of child has so resided with such person; or
(iv) he has, at least once in every year during that period, given notice to the Minister in the prescribed form of his intention to retain his Sudanese nationality;
the President of the Republic may by order, deprive that person of his Sudanese nationality.
(2)Before making an order under this section, the President of the Republic may give to the person in respect of whom the order is proposed to be made, a notice in writing informing him, of the grounds on which the order is proposed to be made, and that he may apply to have the case referred to a committee of inquiry.[11]
(3)If in accordance with the provisions of sub-section (2), and within a period of six months of the date of the notice, such person so applies, the President of the Republic may refer the case to a committee for inquiry as hereinafter provided.[12]
(4)An inquiry under this section shall be held by a committee constituted for the purpose by the President of the Republic, and the Chairman shall be a person who holds or had held a judicial office not below the status of a Province Judge.[13]
(5)The person, in respect of whom an order is proposed to be made under this section, shall be entitled to appear before the committee of inquiry personally or by an advocate or a duly authorized agent on his behalf.
(6)The committee appointed under this section shall have all such powers, rights and privileges as are vested in a Court of a District Judge of the First Grade in respect of,-
(a) Enforcing the attendance of witnesses and examining them on oath affirmation or otherwise and the issue of a commission or request to take evidence abroad; and
(b) Compelling the production of documents.
(7)The committee of inquiry shall, on such reference hold the inquiry in such manner as may be prescribed and submit its report to the President of the Republic and the President of the Republic shall act upon the decision of the committee.[14]
14. Date of loss or deprivation.
Where the President of the Republic orders that any person shall cease to be a Sudanese, or be deprived of his Sudanese nationality, the order shall have effect from such date as the President of the Republic may direct, and thereupon the said person shall cease to be a Sudanese.[15]
15. Effect of loss or deprivation.
When a person ceases to be a Sudanese or has been deprived of his Sudanese nationality, he shall not thereby be discharged from any obligation, duty or liability in respect of any act or thing done or omitted before he has ceased to be a Sudanese or been deprived of the Sudanese nationality.
16. Effect of loss or deprivation on minors.
(1)When the responsible parent of a minor ceases to be a Sudanese under section 12, the minor shall cease to be a Sudanese only if he is, or thereupon becomes under the law of any country, other than the Sudan, a national of that country.
(2)Where a person is deprived of his Sudanese nationality under section 13, the Minister may, by order, direct that all or any of the minor children of whom that person is the responsible parent shall cease to be Sudanese;
provided that such minor may, within one year after attaining majority, make a declaration that he wishes to resume the Sudanese nationality, and thereupon he shall again become a Sudanese national
For full version of the law, please click on the following link: http://www.unhcr. org/cgi-bin/ texis/vtx/ refworld/ rwmain?docid= 3ae6b56718
Clement Kulang (LL.B. (Hons) & LL.M. Staffs)
England
Birmingham