WARNING: VERY LONG POST!!!!! HAVE NEVER STEPPED A FOOT INTO ANY LAW CLASS IN MY LIFE BUT HAVE SEVERAL LAWYER FRIENDS AND JOSEPH MANDALA IS ONE OF THEM. WITH MY OTHER GOOD FRIEND WYSON KAMALA, WE ENGAGED JOSEPH IN A DISCUSSION (on facebook) ON WHETHER A GREEN CARD HOLDER OWES ALLEGIANCE TO THE USA. I HAVE CUT AND PASTED (without permission) HIS RESPONSES/POSTS/COMMENTS FROM MY FACEBOOK WALL HERE FOR THOSE WHO HAVE THE TIME TO READ Joseph’s OPINION: In short, the issue is whether someone who has obtained a green card from the United States owes allegiance to the US and therefore should be barred from contesting as a presidential candidate in Malawi. The simple answer is an emphatic NO because the US Immigration and Citizenship Services Act does not recognize green card holders as citizens or nationals. Only citizens and nationals of the United States owe allegiance to the United States and thus, a US green card holder can contest in the presidential elections in Malawi if he or she satisfies the citizenship requirement in Section 51 of the Malawian Constitution. The post will be in three parts as follows (read only if really interested in the issue): PART I OF THE RESPONSE: 1. Indeed Mr. Felix Bello and Mr. Wyson Kamala, the Constitution of Malawi may need a lot for it to respond to the general aspirations of the people of Malawi because most of the provisions in the current Constitution were ‘inserted’ in helter-skelter as an import from foreign constitutions (for this read in my “Constitutional Amendments: Guidelines” in Lamp, no. 50 (2004); Also see my “The Judiciary and Conflict Resolution in Southern Africa”, a book chapter in Wars and Peace in Africa (2010)). Peter Mutharika, now an aspiring presidential candidate in the forthcoming elections, was one of those framers involved in the process that gave birth to the 1995 Constitution that on the face seems to cause some misguided lawyers and of course most self-interested politicians to curve out ambiguities for their benefit. Yet, the law, in this particular case, is not as ambiguous as some people would want it to be. 2. Let me start by stating in response to your question Mr. Felix Bello that I have not made a thorough analysis of the sections in question. My cursory review makes me conclude that there are both differences and similarities in sections 51, 52, and 80 of the Constitution of Malawi. The main difference is procedural, but not substantive. The allegiance referred to in sections 51 and 52 implicate candidates for Parliament with Section 52 requiring candidates for parliament to take the oath of allegiance. The allegiance in Section 80 on the other hand implicates candidates for Presidency. 3. However, the allegiance referred to in all these sections 51, 52, and 80 substantively have the same aspiration and force of law. All these sections require one to be a citizen of Malawi who does not owe allegiance to any other nation. The framers of the constitution intended the allegiance in all these sections to achieve one common purpose. The primary purpose is to produce public representatives at parliamentary and executive branches of government who owe their supreme or highest national fidelity to Malawi (i.e. the primary intent was to produce leaders that would serve the best national interests of Malawi above and beyond the interests of any other nation). 4. Therefore, I am at pains to find a reason that would prevent someone who satisfied the procedural requirements of Sections 51 and 52 (applicable to parliamentary candidates) from equally satisfying essentially the same procedure in Section 80 (applicable to presidential candidates). Unless someone proves that the previous regimes of the Malawi Electoral Commission (“MEC”) failed to vet parliamentary candidates, the questioning of allegiance at this time would be suspicious especially when the three sections are substantively the same and seek to satisfy substantively the same common purpose of ensuring the public officers owe their highest fidelity to Malawi. The allegiance requirement was designed to ensure public officers are elected to serve the best interests of Malawi above and beyond any other nation when Malawi’s national interests conflict with foreign national interests. 5. It is against these approaches to interpretation that the word “allegiance” in section 80, subsection 7d of the Constitution of Malawi would relate to the requirement for the presidential candidate to be a citizen of Malawi in section 80 subsection 6a. Section 80, subsection 6a requires that a presidential candidate must be “a citizen of Malawi by birth or descent”. Immediately following subsection 6a is subsection 7d within the same section 80. Section 80 subsection 7d prohibits a presidential candidate from owing “allegiance to a foreign country.” Construed together, framers of the two subsections intended the candidate to be one who has the best interests of Malawi at heart above and beyond any other country. The provision lends background from Poland of 1772, whose king was bribed to partition the country into Prussia, Austria, and Russia. 6. Allegiance to a foreign nation, in this context, is fidelity to a foreign country through an oath taken as a condition of acquiring naturalized citizenship. Since the word ‘allegiance’ is a legal term of art, there are several steps for a person to owe allegiance to a country. According to the US Immigration and Naturalization Act (“INA”), eligible naturalization applicants must take an oath of renunciation and oath of allegiance in a public ceremony before becoming a naturalized US citizen. See INA 337; See also 8 CFR 337.1(a). The applicant must establish that it is his or her intention, in good faith, to assume and discharge the obligations of the oath of allegiance. See INA 337; See also 8 CFR 337.1(b); See also 8 CFR 337.1(c). Further, the applicant must establish that he or she is capable of fulfilling the obligations of the oath with regard to the U.S. Constitution and laws. See also 8 CFR 337.1(c). 7. Although there are four types of allegiance, two types are implicated here because there are several presidential candidates that have had prolonged stay in foreign countries such as the United States: 1. James Nyondo stayed in South Africa and the United States for quite sometime; 2. Atupele Muluzi stayed in the United Kingdom for quite sometime and his father and Brown Mpinganjira had jointly owned taxable properties there; 3. Lazarus Chakwera had spent so many years in the United States and paid taxes to the US Government including the time he was completing his doctoral degree in theology at Trinity International University; 4. Peter Mutharika spent so many years abroad in Tanzania, UK, and United States while completing his Doctor of Juridical Science at Yale University; and Joyce Banda stayed in Kenya for quite some time until she got divorced to her Kenyan husband. While the question of allegiance implicates all of them, here I will focus on Peter Mutharika since he is the one clearly targeted by the Joyce Banda’s PP Government because he poses the biggest threat of wrestling power from Joyce Banda. 8. One type of allegiance is acquired by birth. There is no question that Peter Mutharika was born in Malawi, a fact which immediately grants him natural allegiance and citizenship to Malawi. Section 47(3)(a) of the Malawi Constitution provides that one may acquire citizenship by birth, descent, marriage, registration, naturalization or through an Act of Parliament. This type of allegiance can be lost through deprivation, through an Act of Parliament, or through renunciation of allegiance to Malawi in order to take an oath of allegiance to a foreign country like the United States or by stating that the Malawian national has become a “world’s citizen.” (See Malawi Const. § 47(3)(b)). 9. The facts this far indicate that Peter Mutharika has never taken an oath of allegiance to the United States as a precondition for naturalization as a citizen of the United States. The presumption, therefore, is that Peter Mutharika is a bona fide citizen of Malawi. Thus, by virtue of that citizenship to Malawi by birth, Mutharika owes allegiance to Malawi. PART II: 10. The question then turns on whether Peter Mutharika renounced or lost his right to Malawian citizenship by birth for owing allegiance to a foreign nation. To adequately respond to such a question, we must necessarily investigate first whether Peter Mutharika owed allegiance to the United States by a legal process or operation of law. 11. A foreign born national becomes a citizen of the US by pledging allegiance to the United States. In fact, one owes allegiance to the US if that person has taken an oath during the naturalization process for citizenship. Such a foreign national must prove a series of eligibility requirements in order for the Bureau of Citizenship and Immigration Services (“BCIS”) to certify the naturalized citizenship application. This is evidenced by taking an oath of allegiance to the United States. Upon becoming a citizen, one travels internationally on a United States passport. According to the BCIS, a foreign person can live in the US for decades without officially owing allegiance and becoming a US citizen if such a person has not applied and received a naturalized citizenship. The facts, so far undisputed in the media, do not in any way show that Peter Mutharika has ever taken an oath of allegiance to the United States and they do not also show that he has ever been granted a US Passport to use for international travel. 12. Further, the facts show that Peter Mutharika possesses a legal residence card, commonly known as a green card. A green card is an immigrant visa. Like any other type of visa, one does not have to take an oath of allegiance to the United St Cloud Naacpates in order to obtain a green card. In addition, a green card does not, without process, grant citizenship because one does not pledge or take an oath of allegiance to the United States when receiving the green card. Generally as a visa, after receiving the green card, many people take so many years before taking an oath of allegiance to the United States. The green card grants legal authority for the foreign born immigrant or nonimmigrant to live, to work and earn a living in the US. 13. The foreign born nationals have no legal or constitutional rights to remain in the US. Yet, they are allowed to stay in the US provided that the US government renews their green cards or visas at the expiration of their previous visas. They also possess the right to sue in line with the Fourth, Fifth, and Fourteenth Amendments to the US Constitution (prohibition to unreasonable searches and seizures, rights to due process, and equal protection of the law). In return, the US grants legal residence with the expectation that the foreign born nationals will obey all laws while within the US, and implied consent to US court jurisdiction for their alleged violation of US laws. 14. I have seen a lot of people who have stayed in the US on a green card for so many years without taking an oath of allegiance to become a naturalized US Citizen. Peter Mutharika is or may just be one of them. Doing so does not contravene any Malawian law or alienate any of Peter Mutharika’s rights in Malawi. In fact, the Constitution of Malawi provides for freedom of movement and residence. Specifically, Section 39 (2) provides that “[e]very person shall have the right to leave the Republic [of Malawi] and to return to it.” This means that Malawian nationals can emigrate and stay for an indefinite period of time in another republic other than Malawi. Implicit in this constitutional provision is the expectations of reciprocal duties Malawian nationals owe (without owing allegiance) to the foreign nation. Conversely, there is an implicit expectation that the foreign nation owes certain duties to the Malawian national such as safety and enjoyment of internationally protected rights. 15. But even if there were some ambiguities in the interpretation of allegiance, courts as a general rule, use certain methodology in construing constitutional and statutory texts. One approach in clearing out a seemingly ambiguous term or language is to rely on legislative history that led to the insertion of the particular provision(s). The second approach in analyzing the constitutional or statutory text is guided by the basic legal principle that a constitutional provision or statute should be read as a harmonious whole, with its separate parts being interpreted within their broader statutory context in a manner that furthers the general purpose or intent. The purpose or intent of the framers controls the interpretation of the particular provision. Therefore, the various canons of interpretation of the provision are usually subordinated to interpretations that further a clearly expressed purpose of the framers. In an effort to achieve this, courts generally rely on these canons of construction to draw inferences about the meaning of textual language. 16. Thus, courts distinguish between terms of art that may have specialized legal meanings and other words that are ordinarily given a dictionary definition. Other canons direct that all words of a statute be given effect if possible, that a term used more than once in a statute should ordinarily be given the same meaning throughout, and that specific statutory language ordinarily trumps conflicting general language. Any of these canons gives way if context reveals an evident contrary meaning to ordinary meaning. In this case, since the word allegiance has been used in several sections of the same Constitution for a substantively the same purpose, courts would be inclined to give the same meaning to the word “allegiance” used in sections 51, 52, and 80. PART III – LAST: 17. In event that this case is of first impression in Malawian courts, the Constitution of Malawi section 11(2)(c) provides that the courts may look to “current norms of public international law and comparable foreign case law” to appropriately interpret provisions of the Malawi Constitution implicated. Therefore, the courts would look at other legal authorities either vertically or horizontally to borrow what other common law courts have done when faced with similar cases of allegiance. 18. Should this happen, you would be correct Mr. Felix Bello, that the green card or permanent residence card would be a non-issue concerning the allegiance of Peter Mutharika, Lazarus Chakwera, James Nyondo, Atupele Muluzi, and Joyce Banda who have or had enjoyed prolonged stays in the United States, South Africa, Britain (UK), and Kenya. This is because the case-law in other jurisdictions have not equated the acquisition of immigrant visas (including green cards) as the renunciation of one’s national allegiance and acquisition of foreign allegiance as illustrated in the case from the Caribbean state of Saint Christopher and Nevis (Liburd v. Hamilton et al (2013)). 19. In addition, US Federal Courts have liberally viewed the issues of allegiance. The court in Akio Kuwahara v. Acheson, 96 F. Supp. 38 (D. Cal. 1951) did not divest the plaintiff’s citizenship or allegiance to the United States on the basis that he voted in foreign political elections taking place in Japan. The court reasoned that the voting in a foreign election was impelled by a veritable wave of pressure in the mental faculties of the plaintiff which made the act of voting involuntary. Similarly, it can be argued and analogized that Peter Mutharika and all other potential presidential candidates (including James Nyondo, Lazarus Chakwera, Atupele Muluzi, and Joyce Banda) who might at some point obtained permanent residences outside Malawi, paid taxes, and even voted in foreign elections did not do so voluntarily. 20. Rather, it could be argued that they were involuntarily impelled by veritable waves of exigent factors at that time to exhibit some levels of duty to foreign nations. It could, therefore, be argued in this case (assuming MEC proves he owes allegiance to the US, which I seriously doubt MEC would) that Peter Mutharika might have owed allegiance to the US involuntarily impelled by Dr. Kamuzu Banda’s internationally verifiable tyranny that kept most highly educated Malawians abroad for fear of political persecution. With such analogous US Federal case and the Liburd v. Hamilton et al from the Carribean State of St Christopher and Nevis, the court in Malawi would most likely decide the case against the MEC in favor of Mutharika and other presidential candidates. 21. Besides, allegiance is a non-issue that can cost Malawi taxpayers time and a lot of money for nothing. Some lawyer in Malawi trying to make a name for himself has misguidedly argued that because there are questions of allegiance, let the case be tested in a court of law. What the misguided lawyer forgot is the fact that willy-nilly testing a legal principle or provision of the Constitution costs money to the people of Malawi who are already suffering due to corruption, lack of essential commodities, and lack of life saving medical facilities. The legal battle that would ensue would cost a lot of money not from the lawyer personally, but to all tax payers. 22. For example, to ensure equal and fair application of Malawi electoral laws and Constitution, the MEC would have to vet the allegiance of all presidential candidates, particularly those that are alleged to have spent a prolonged amount of time in foreign countries. These include James Nyondo, who spent a long time in South Africa and United States, Lazarus Chakwera who spent a long time in the United States where he completed his Doctor of Theology degree, Atupele Muluzi, who spent a long time in the United Kingdom where he obtained a Bachelors Degree in Economics and Law, Joyce Banda, who spent a long time in Kenya where she lived and raised her children while married to a Kenyan man called Kachali, and Peter Mutharika who lived in the United Kingdom, Tanzania, and the United States where he obtained his Doctor of Juridical Science (JSD) degree at Yale University. Completion of such assessment would only be one part of the cost to poor Malawians. 23. Add to that costly vetting the fact that a presidential candidate denied the right to contest by the MEC on the basis of allegiance may take the MEC to court and obtain an injunction enjoining any electoral process. The aggrieved candidate may also renounce any alleged allegiance to the alleged foreign nation and take an oath of allegiance to Malawi depending on other residency requirements of the electoral laws and/or act of parliament. Meanwhile, the MEC would have to divert the already depleted electoral budget to finance the legal battle whose value is negligible to vindicate a legal principle that is clearly unambiguous. Put simply, it is a waste of time and money for the Malawian nation to test this part of the law when the facts are clearly staked against MEC and its political beneficiaries. 24. In conclusion, I hope someone is able to do a cost-benefit analysis, including a political cost for another government miscalculation against the best interests of an already disappointed electorate because the issue of allegiance is not only a non-starter in the legal sense, but also has a negative consequence for any realistic political mileage.
Posted on: Wed, 29 Jan 2014 04:52:56 +0000
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