My Children's Future Ending Gender Discrimination in Nationality Laws

Home , I Am Not a Human Being, Mohna Ansari

My Children’s Future ENDING GENDER DISCRIMINATION IN NATIONALITY LAWS

EQUAL RIGHTS TRUST London, September 2015 EQUAL RIGHTS TRUST

My Children’s Future ENDING GENDER DISCRIMINATION IN NATIONALITY LAWS

London, September 2015 The Equal Rights Trust is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice.

ISBN: 978-0-9573458-5-0

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This report was funded by a grant from the United States Department of State. The opinions, findings and conclusions stated herein are those of the Equal Rights Trust and do not necessarily reflect those of the United States Department of State. The school has asked for birth registration. But I haven’t been able to provide it. Now I can see there will be more problems and I am so worried. My sons are also worried about me not getting citizenship. It might raise a problem for my children’s further education too. The teachers at school know about my problem but still they keep asking about it. This is a constant worry and I feel I am all alone in this world. I feel particularly worried when I think about my children’s future.

Anita, Kathmandu, Nepal.

Table of Contents

Acknowledgements Acronyms Executive Summary

1. INTRODUCTION 1

2. COUNTRY PROFILES 7 2.1 Pre-Reform Countries 7 2.1.1 Madagascar’s Nationality Law 7 2.1.2 Nepal’s Nationality Law 9 2.1.3 Access to Nationality in Practice in Madagascar and Nepal 11 2.2 Post-Reform Countries 15 2.2.1 Indonesia’s Nationality Law 15 2.2.2 Kenya’s Nationality Law 16 2.2.3 Access to Nationality in Practice in Indonesia and Kenya 17

3. IMPACTS OF GENDERED NATIONALITY LAW ON THE ENJOYMENT OF RIGHTS 21 3.1 The Right to a Nationality and the Problem of Statelessness 22 3.2 Cumulative Human Rights Violations 23 3.2.1 Livelihoods 24 3.2.2 Land, Property and Inheritance 27 3.2.3 Freedom of Movement, Liberty and Security 31 3.2.4 Education 33 3.2.5 Healthcare 35 3.3 Personal Well-Being 37 3.3.1 Identity and Belonging 37 3.3.2 Guilt and Shame 39 3.3.3 Despair 41

4. THE REFORM PROCESS 45 4.1 The Struggle for Legal Reform: Madagascar and Nepal 45 4.1.1 Demographic Considerations 48 4.1.2 Socio-Cultural Prejudice 49 4.1.3 Political Factors 51 4.2 Overcoming Barriers to Legal Reform: Indonesia and Kenya 53 4.2.1 Good Timing 54 4.2.2 A United Stance 54 4.2.3 Targeted Advocacy 55 4.2.4 Framing the Issue 56 4.2.5 Researching and Drafting Reform Proposals 57 4.3 The Impact of Reform 58

5. CONCLUSIONS AND RECOMMENDATIONS 61

Bibliography 67

Annex 1 List of Stakeholders Interviewed and/or Providing Input for This Report 71 Annex 2 International Standards Relating to Gender Equality in the Transmission of Nationality from Parent to Child 75 Acknowledgements

Deirdre Brennan, Amal de Chickera and Joanna Whiteman. The research and The research for this report was conducted by field researchers Zahra Albarazi,- withfindings assistance were collated from Jade and Glenister,this report Amal drafted de Chickera by Laura and van Abi Waas Ogunmwonyi. with assis Dimitrinatance from Petrova, Zahra Albarazi.the Executive The draftDirector report of the was Equal edited Rights by Joanna Trust, Whiteman provided guidance and direction throughout the project as well as substantive editorial oversight and signed off the report for publication.

The Trust was greatly assisted throughout the project by its in-country partners and consultants. In Indonesia, Rena Herdiyani and Listyowati of Kalyanamitra organised Deirdre Brennan’s visit, accompanying her and arranging interviews, Wenny Mustikasari and Veronica Iswinahyu interpreted interviews. In Nepal, Sabin Shrestha, Hom Lamsal and Munaslu Gurung organised Amal de Chickera’s visit, accompanying him and interpreting interviews. Also in Nepal, The Samida Women Development Forum, Roshana Pradhan and Subin Mulmi provided assistance to Deirdre Brennan by interpreting interviews. In Madagascar, Amir Antoy and interpreting interviews. In Kenya, Teresa Omondi-Adeitan, Cecilia Mumbi organised Zahra Albarazi’s and Joanna Whiteman’s visits, accompanying them people for facilitating the research and providing valuable support. Additionally and Jackline Ingutiah organised Zahra Albarazi’s visit. Special thanks go to these- gascar for introducing us to some key stakeholders they have been working with onthanks legal go reform. to Mina Rakotoarinsrasata and Noro Ravaozanany of Focus in Mada

This report has been produced as part of a broader project aimed at tackling gender discrimination in nationality laws through a number of mediums. The project has been co-ordinated by Jade Glenister with the managerial oversight of at various points on their trip by videographer Hamed Hashemi and his assis- Jim Fitzgerald. As part of the wider project, the researchers were accompanied

Thetant MiaTrust Albarazi. extends thanks to Istvan Fenyvesi for the design and layout of this report.

The research, drafting and publication of this report were funded by the Bureau of Population, Refugees, and Migration (PRM) of the US Department of State. We are very grateful to PRM staff for their support of our work.

ix The project team also thanks all Equal Rights Trust staff for their assistance, including in particular Charlotte Broyd for co-ordinating the design of the publication and its launch.

Finally we wish to thank everyone who shared their stories with us. While some - dren, many remain unable to do so and continue to struggle for equality. This reporthave now is dedicated successfully to them gained and citizenship to all other either women for andthemselves their children or for theirwho havechil faced discrimination, exclusion and, in some cases, statelessness due to discriminatory nationality laws. Acronyms

ACHPR African Charter on Human and Peoples’ Rights ACRWC African Charter of the Rights and Welfare of the Child AIPJ Australian Indonesian Partnership for Justice APAB Aliansi Pelangi Antar Bangsa ASEAN Association of Southeast Asian Nation CAC Community Action Centre Nepal CEDAW Convention on the Elimination of All Forms of Discrimination against Women CIDDEF Centre d’information et de documentation sur les droits de l’enfant et de la femme CRC Convention on the Rights of the Child CRMW Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families CRPD Convention on the Rights of Persons with Disabilities CRTD-A Collective for Research and Training on Development – Action CWIN Child Workers in Nepal Concerned Centre FIDA Federation of Women Lawyers – Kenya FOCUS Focus Development Association FWLD Forum for Women, Law and Development HRC Human Rights Council ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ID IKI IT InformationIdentification Technology Card KPC KeluargaIndonesian Perkawinan Citizenship Campuran Institute Melalui Tangan Ibu KPAI Komisi Perlindungan Anak Indonesia MENA Middle East North Africa region OHCHR PERCA Perkawinan Campuran Indonesia PRWA ProtocolOffice of theto the High African Commissioner Charter on for Human Human and Rights People’s Rights on the Rights of Women in Africa SBMK Serikat Buruh Migran Karawang UN United Nations UNDP United Nations Development Programme UNHCR United Nations High Commissioner for Refugees UNRWA United Nations Relief and Works Agency for Palestine Refugees VDC Village Development Committee WHR Women for Human Rights Single Women Group WRC Women’s Refugee Commission Executive Summary

This is a report about gender discrimination in nationality laws, the effects these laws have on women and their families and the process of reforming such laws.

Twenty seven countries still do not allow women to pass their nationality to their children. The report documents the impact of this in two of the 27 countries – Mad- agascar and Nepal. As a result of the discriminatory nationality laws, children suf- they are also unable to access a range of critical human rights such as education, healthfer a series and work.of negative In some impacts. cases, Inthe addition children to are the stateless. inability Separately, to acquire theircitizenship, mothers often suffer a sense of guilt and helplessness. Women from disadvantaged groups such as racial minority women or those of disadvantaged socio-economic status are, together with their children, acutely affected. The situation is dire. Both political realities and socio-cultural discrimination act as barriers to reform.

Elsewhere, reform of gender discriminatory nationality laws has slowly been taking place and the number of countries which do not allow women to pass their nationality to their children is decreasing. The report examines two countries which have recently reformed their laws, Indonesia and Kenya. While implementation of law reform in these countries remains an ongoing challenge, the report argues that there are valuable lessons to be learned from their experiences. The report concludes in an optimistic tone, arguing that learning from these countries can assist in accelerating the rate of change.

Today, the global movement for the eradication of such laws is growing behind the Global Campaign for Equal Nationality Rights, which was launched in 2014. The Equal Rights Trust, a founding steering committee member of the Global Campaign, is publishing this report as a resource and advocacy tool to contribute to the movement towards legal reform.

Part 1: Introduction placed on unity of nationality within the family and the notion that giving prec- edenceHistorically, to the citizenship man’s nationality laws treated was the women best way differently to achieve because this. To of ensure the value that all members of the family shared the same nationality, women’s and children’s nationality status was made dependent on the husband or father. However, of reform, only 27 countries remain in which women cannot pass nationality to theirthere childrenhave been on significant equal terms changes with men. in the past decades and, following a period I II EQUAL RIGHTS TRUST ised communitieswho are themostdifficultto reach. reportthis concludes is that particularly pronounced among remote marginal The it. from benefit can they how and law the in change the of women affected from thereforms. The mostacutely feltof awarenessis thelack many among also notes that there are a number of practical barriers to individuals benefiting outcome. While thereport reaches positivethese reforms, conclusionsabout it laws.ality The approach of each countrywas differentwith thesamelegal but 2006 Kenyaand in 2010,whichand removed gender discrimination from nation The report goes on to explore thelaw reform which tookin Indonesia place also contributory factors to theabilityto accessnationality. of awareness,lack a bureaucraticprocedures oversightof judicial lack anda are related to their race, religion andsocio-economic Bribery status. and corruption, practiceperson’sa to ability conferon their children nationality directly isalso minority groupshigha and levelof discretion powerheld by being authorities, in gascar, inparticular,as aresult itisclear that of systemic discrimination against issues of racial,religious socio-economically and Mada baseddiscrimination. In Furthermore,countries thelaws inboth are implementedway ina which raises different, they areof step bothout the countries’international with obligations. on theirchildren.ring theirnationality the legal While regimes themselves are tory laws nationality which,other things,prevent amongst women from confer The report identifies that both Madagascar and Nepal have explicitly discrimina problems thelaw orpractice on nationalitypresent. research, describing in particularthecurrent legislative framework andwhat Part2 ofthereport explainsof the the time in eachcountryat the situation Part 2:Country Profiles affected populationand60interviews withstakeholders. totalof 156interviews were carried 96 interviewsout: members ofthe with collaborationexpertise.local partner with implementing in-country an with A researchfield researchThis fourcountries. targetwasthe close conductedin in which was followed, from October 2014 to February 2015, by participatory field The research undertaken for thisreport includedacomprehensive deskreview affected. Are somegroups suffering disproportionately? represent,close attention ispaidto howthe laws are implementedwho and is considering the direct discrimination on grounds of sex thatthelaws themselves multiplying effectsThe framework ofinequalities. requires in additionto that, rights. Itis a holistic approach which recognises the interconnectedness and work emphasises the integral role of in theenjoymentequality human of all on equality, asexpressed in theDeclaration ofPrinciples on Equality. This frame perspectiverights human unified the framework conceptual its as takes report exploringWhen Indonesia, Kenya,in the situation Madagascar this Nepal, and ------Part 3: Impact of Gendered Nationality Laws my children’s future Part 3 of the report analyses the consequences of being left without nationality because of gender discrimination in nationality laws. It presents the common trends in terms of the violations of rights encountered as well as the impact of these problems.

One of the most severe impacts of discriminatory nationality laws is state- executive summary nationality to their children, children can be left stateless and thereby unable to accesslessness, their as fundamentalidentified in sectionrights anywhere. 3.1. When Part women 3.1 documents are unable the to experiencepass on their of many of those who are stateless as a result of the laws: they are unable to access education or any other crucial rights. In some cases, large numbers of people from particular communities, such as Karana in Madagascar, are living on the margins of society, unable to buy land or work lawfully and in constant fear of

Thebeing cumulative arrested due human to their rights lack impactof identification of the discriminatory documentation. laws is stark, as illustrated in section 3.2. Without nationality, people often face huge barriers to ensuring their livelihood. This is particularly pronounced for families suffering from multiple discrimination, such as Dalits in Nepal. The lack of nationality is often also synonymous with an inability to lawfully own or inherit land, restrictions on liberty and security and a lack of freedom of movement. People reported feeling unable to move around the country due to the fear of arrest at police checkpoints. Accessing healthcare and education was also rarely a possibility.

- viduals affected. People reported that nationality laws left them doubting their ownFinally, identity section and 3.3 belonging. identifies Womenserious impactsperceived on themselves the personal as well-beingunable to provide of indi for their children, who were so deeply affected as a result of not acquiring their mother’s nationality, and reported a sense of guilt, shame and despair.

Part 4: The Reform Process Part 4 of the report provides an explanation of the process by which Indone- sia and Kenya were able to reform their laws, the positive impacts of those reforms and the barriers and obstacles still preventing Madagascar and Nepal from doing the same.

In section 4.1 the report argues that, while there has been progress in both anti-reform agenda appears to be fuelled by discrimination, in particular both acountries, fear of “the significant other” and barriers socio-cultural to reform prejudice. remain in In Madagascar Madagascar and reform Nepal. is seen The not as a matter of gender equality but more as an invitation for “non-Madagas-

The political stalemate which continues to impede the Nepalese constitutional reformcan” communities process is tonot gain easily citizenship. surmountable. Furthermore, In Madagascar, there are the political presence barriers. of a III IV EQUAL RIGHTS TRUST society, andtheUNHCRotherUNagencies. stakeholders in bothpre-reform and post-reform countries: governments, civil lawsality and practices. The recommendations are made, inparticular, to key and for any countriesontheir respective roads to fully gender neutralnation The report recommends a numberof possible nextsteps forfour all countries, Part 5:Conclusions andRecommendations belonging andbeingpartofthecommunity. that their own access to a livelihood had improved as well astheir feeling of their children wereto able enrol inschool and access education. They reported KenyaIndonesia and in resulta as of reform. Beneficiaries spokefact ofthe that thermore, section 4.3 identifies a number of positive impacts that have been felt a carefullytaking consideredand approach to draftingproposals for reform.influence; Fur to seeking is campaign the stakeholders various the to coming advocacy targeted keyat individuals; framing theissue inaway which is wel uniteda timing; advocacyjoined up and stance approach from keystakeholders; keycludes that factors which appearto have contributed to reform include: good process in IndonesiaandKenyawhich may assistreform movements.con It Section 4.2 argues that there are some lessons to be learned from the reform the NationalAssembly’s reluctance to useitsown power are slowing progress. number ofministries likely toany block changeoflawby the government and - - - - 1. INTRODUCTION

Twenty-seven countries worldwide continue to discriminate against women in their ability to confer their nationality on their children on an equal basis with men. Such laws contravene the rights to equality and non-discrimination, which are central obligations that bind these countries under international human rights law.1 These discriminatory laws can lead to statelessness where fathers are stateless, absent, or unable or unwilling to confer their nationality to their children. Where statelessness results from gender discrimination in nationality laws, it can have grave human rights and humani- tarian consequences, resulting in substantial violations of fundamental rights and negative impact on the well being of those affected. The effects of living without a nationality, which can include the inability to work, access education or inherit property, are far-reaching, damaging and often intergenera- tional. Nationality is a central element of many people’s lives and identity: it offers a sense of belonging, brings recognition as a member of a community and ensures access to rights and protection. This report demonstrates the diversity, but also severity, of problems that can arise when women’s ability to confer nationality has been denied. It also shows how, due to racial, religious or socio-economic discrimination, gender-biased laws often disproportionately impact already disadvantaged groups – for instance, more commonly leaving poor or ethnic minority communities without access to nationality. The consequent statelessness that may arise is often then itself an additional basis for further discrimination.

The Issue placed on the unity of nationality within the family and the notion that giving precedenceHistorically, to citizenship the nationality laws treatedof the man women was the differently best way because in which of such the valueunity could be achieved. To ensure that all members of the family share the same children’s nationality status was made dependent on the husband or father, as headnationality of the –household. and reflecting Thus, the a childpatriarchal acquired structure his or herof society father’s – nationalitywomen’s and at birth, and a woman’s nationality was subject to change if she married a foreign man. This approach was embedded in the vast majority of early citizenship laws and it was even accepted as legitimate by the first international agreements to

1 The rights to equality and non-discrimination are recognised in, among others, the International Cov- enant on Civil and Political Rights (ICCPR), the International Covenant on Economic and Social Rights (ICESCR), the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All 1 forms of Discrimination against Women (CEDAW). 2 EQUAL RIGHTS TRUST 4 3 2 experiences onhow reform canbe,andhasbeen,achieved. this discrimination andtheurgent need to address the issue, as wellas to share ing towardsis by thisgoal increasing awareness as toeffects thecrippling of icateremaining all matters. gender in nationality inequality One way of mov RightsNationality the problem of genderedlaws nationality Campaign for and theGlobal Equal to amend their laws, in2014, anInternational Coalitionwas formed to work on Recognising that a concerted effort is needed to help this final group of countries children onequalterms withmen. to beachieved andwhere women cannotcurrently passnationalityto their from parent to child.Only 27countriesremain inwhich thisreform hasyet nationality rights, especially withregards to thetransmission ofnationality crimination, ithasnow becomethenormfor menandwomen to enjoy equal CEDAW andthebroader international law principles ofequalityandnon-dis Senegaland (2005, 2011); Monaco (2010); (2013). Zimbabwe (2009); (2009); Kenya Bangladesh (2010);Tunisia (remaining gaps addressed in2010);Yemen (2007); Morocco 2006); in reform (partial Algeria (2005);Indonesia(2006);Iraqreform (partial Sierra in2006); Leone in countriesacross theglobe, including:SriLanka (2003);Egypt(2004); criminatory provisions. Sincetheyear 2000alone,reform hasbeenachieved tion oftheCEDAW, gender themajorityofcountriesworldwide repealed their dis prescribes specifically which of equality innationalitylaw. Intheyears leadingupto orfollowing theadop 9 Article adopted, was (CEDAW) ConventionFormsAll of Elimination the on againstDiscrimination of Women However, there have been significant changes in the past decades. In 1979, the common problem inallregions oftheworld. statesmid-twentieththe independence. In upon century, this was therefore a subsequently made their way into manylaws of the nationality adopted by new natorylaws elements ofnationality were exported around theworld andthey with theregulationdeal of nationality. paign website at UN Women andtheWomen’s Refugee Commission(WRC). More information can befound onthe cam members are Equality Now, theEqual Rights Trust, theInstitute onStatelessness andInclusion,UNHCR, The GlobalCampaignfor Equal NationalityRights Laws, Gender Discriminationfrom Nationality United NationsHigh Commissionerfor Refugees (UNHCR), ing statelessness). concentrated instead onaddressing someofthe negative consequencesthatsuchlaws had(includ on theNationalityofMarried Women didnotprohibit gender discriminatory nationalitylaws, but tionality Law, the1930Protocol Relating to aCertain Case ofStatelessness andthe1957Convention Instruments suchasthe 1930Hague Convention onCertain Questions Relating to theConflict ofNa http://equalnationalityrights.org

was launched. 4

The goal of the Global Campaign istoof the Global The goal erad 6 March 2015.

2 was launchedinJune2014.Thesteering committee . Under colonial rule, gender Under discrimi colonial Good Practices Paper – Action 3:Removing 3 In accordanceIn the with ------The Report my children’s future

The purpose of this report is to contribute to the Global Campaign for Equal Nationality Rights by adding to the existing body of knowledge5 on gendered nationality laws and thereby increasing awareness as to the need for, and modalities of, reform. The report also seeks to further the understanding of the nexus between statelessness and discrimination, and particularly its

to do this by documenting the impact of gender discriminatory nationality introduction legislationimplications on in women terms ofand multiple their families, discrimination. reviewing Specifically, existing law the against report inter aims- national standards and analysing the role of national, regional and international advocacy in the process of reform. Research on the impact of discriminatory laws has already been carried out in the Middle East and North Africa, but there has been limited investigation of whether similar consequences are evident in other parts of the world where this issue is also present. In this and Nepal. Madagascar and Nepal currently maintain discriminatory national- itylight, laws, four whilst countries Indonesia were identifiedand Kenya for have study reformed – Indonesia, their laws Kenya, in recentMadagascar years and now face the challenge of successfully implementing the gender equal nationality provisions.

The report starts with an overview, in Part 2, of the situation in each country at the time of the research, describing in particular the current legislative framework and what problems the law or practice on nationality present in terms of women’s nationality rights. Part 3 provides analysis of the data col- nationality because of gender discrimination in nationality laws. It presents thelected common through trends field researchin the countries relating studied to the consequences in terms of the of violations being left ofwithout rights encountered as well as the impact of these problems, whilst also making con- world. Part 4 provides an explanation of the process by which Indonesia and Kenyanections were to the able findings to reform from their previous laws, the research positive conducted impacts of in those other reforms parts of and the the barriers and obstacles still preventing Madagascar and Nepal from doing the same. The report concludes with a number of recommendations, based on this research and analysis, for potential next steps for the four countries, and for all other countries which are yet to achieve fully gender neutral nationality laws and practices.

5 See, for example, Manby, B., Citizenship Law in Africa: A Comparative Study, Open Society Foundations, 2010; UNHCR and Collective for Research and Training on Development – Action (CRTD-A), Regional Dialogue on Gender Equality and Statelessness, 2011; Equality Now, Ending Sex Discrimination in Nationality and Citizenship Laws, 2014 (updated February 2015); WRC and Tilburg University, Our Motherland, Our Country: Gender Discrimination and Statelessness in the Middle East and North Africa, June 2013; UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness, March 2014; UNHCR, Preventing and reducing 3 statelessness: Good practices in promoting and adopting gender equality in nationality laws, 2014. 4 EQUAL RIGHTS TRUST 6 which alsofurthered understandingoftheprocess ofandbarriers to reform. then assessedthrough participatory research in the four target countries, families andtheextent to which reforms have improved theirsituationwas The impactofgenderdiscrimination innationalitylaws onwomen andtheir and thecurrent statusofefforts towards law reform were reviewed. pre-reform countries,existingresearch of thediscriminatory ontheimpact laws the context,tion about and impact of the reform implementation was studied. In post-reformIn tion. countries,theprocess of reform andany availableinforma such as personal status laws, which might interact with and influence its applica analysisdetailed included a laws nationality of eachcountry’s related and laws, project’s research objective was compiled in acomprehensive desk review. This legislative framework ineachcountry andexisting information relevantto the Atlegalthe outsetofproject, a analysis was conducted to understandthe The Research Methodology the disadvantage faced by affected individuals. rightshuman frameworkhelps illuminate thenature, scopeandcomplexityof unified the questions, these consider to us requiring By healthcare? and cation other rights,key including socio-economic rightsthose to suchas work,edu groundthen becomea onwhich they are discriminated againstin enjoyment of them? For example,where thelaws result inaperson’s statelessness, does this in individualsenjoyingnot their right tonationality, a whatare upon theimpacts the discriminatory laws ortheirdiscriminatoryresultor both implementation vantagedsuffer disproportionately,discrimination? asvictims of Wheremultiple particular groupsthat suchasracialminorities or thesocio-economically disad the sameexperience or do other forms of inequality anddiscrimination mean consider question and who isaffected. Arewomen all their families and having selves represent,we morelook also closelyof thelawsthe implementation at in to considering the direct discrimination on grounds of sex thatthelaws them which this report considers genderedlaws. nationality For example, inaddition wayforthe frameworkrightsimplications human significant in unified has The effects ofinequalitiesarisingindifferent contexts orfor different reasons. of each different typeof and theinterconnectednessinequality and multiplying rights.human holistic approachis a It which recognises theuniqueness both This framework emphasises the integralrole in theenjoyment ofequality ofall per rights human spective onequality, unified asexpressed in theDeclaration of Principles on Equality. the framework conceptual its as takes report This The Conceptual Framework London, 2008,page 2. national, regional andnational contexts”. TheEqual Rights Trust, non-discrimination anditsprinciplesare “basedonconcepts andjurisprudencedeveloped ininter the Declaration ofPrinciplesonEquality. TheDeclaration promotes aunifiedapproach to equalityand 47 countriesindifferent regions oftheworld consulted andagreed onasetofprinciplesequality: In 2008,inaprocess facilitated by the Equal Rights Trust, 128humanrights and equalityexperts from Declaration ofPrinciples onEquality - , ------6

This built on previous projects that have pursued the same goal elsewhere.7 my children’s future The data captured by, and the methodology employed in these earlier projects was used in the development of the research methodology for this project as well as to understand international trends on this issue. By analysing the development of the questionnaire. This facilitated the comparison of data betweenresearch theon thedifferent subject countries globally and to date, regions, a set in of order issues to wascontribute identified to a to reliable guide global picture. A revised and expanded interview protocol was developed for semi-structured interviews with affected families in the four target countries introduction of this project. The questionnaires were adjusted for those countries which are post-reform to also enable data to be captured on the impact of reform, including on family members who have now acquired nationality as well as persons thewho new have countries not been studied. able to benefit. The semi-structured interview protocol left space for the identification of different or previously unreported problems in

8 Those affected by gender dis- A suitable local partner to assist with the implementation of the field research bywas local identified partners and in contracted close consultation in each country.with the research team. The interviews withcrimination affected in persons the nationality in Madagascar law – or and by theNepal relevant focused reform on understanding – were identified the members, with a particular interest in exploring situations of statelessness that haveimpact arisen of the among gender the discriminatory children of national laws womenon female as acitizens result of and these their laws. family The interviews with affected persons in Indonesia and Kenya sought to understand what impact the reform of the nationality laws has had in terms of access to nationality for the children of national women and how this has affected the lives of all concerned, as well as to understand cases where the new law is not being implemented. In all countries, the “key informant” interviews were focused on placing the issue within the broader domestic context, getting a better picture of the general operation of the law and the reforms if relevant, and exploring the current status of activities around this issue in the country by local and national actors. Special attention was given to the question of what advocacy strategies have been employed in relation to law reform on this issue, to draw out lessons and good practices.

- conducted.The field research This is showntook place in the between table overleaf: October 2014 and February 2015. Dur ing the field research phase of the project, 156 semi-structured interviews were

7 WRC and Tilburg University; Equality Now; UNHCR and CRTD-A, above, note 5. 8 These were Forum for Women, Law and Development in Nepal, Amir Antoy in Madagascar, Federation of Women Lawyers – Kenya (FIDA) in Kenya, and Kalyanamitra Women’s Communication and Information 5 Centre in Indonesia. 6 EQUAL RIGHTS TRUST gender discrimination, this hasnotaffected the purpose or results of this report. seek to offer quantitativeratherbut data qualitative snapshotsinto theeffect of children.transferto,However,their tounable citizenship not projectdid this as were or had, who citizenship Kenyan with mothers were interviewed those of majority vastKenya, the In mothers. their through citizenship obtain to unable in theproject, mostof those interviewed in Madagascar were menwho were participate to willing women finding in challenges to due But impact. greatest were fromregions thecoastal asthisiswhere gender discrimination has the of how to resolve the issue. In Madagascar, themajorityof those interviewed groups of womenlinks without to FWLD living inNepalandwho were unaware Developmentproportionsmall A (FWLD) inNepal. oftheresearchcaptured also captured individuals withaccess to strong NGOs like Forum for Women, Law and ents haddifferentdegrees ofaccesstothe studyIndonesia andNepal, In help. often particularly socio-economically disadvantaged.respondThis that meant substantive information onfamilies living inruraland isolated areas, which are the across interviewedcountries. For example,the research in Indonesia and Nepaldoes not include persons the of respect of in cross-section representative profiles fullysocio-demographic a achieving in difficulty the was biggest The research was affected by severalof the One methodological limitations. Methodological Limitations Non-reformed countries Post-reform countries Madagascar Indonesia Country Kenya Nepal Total affected persons Interviews with 96 32 28 16 20 lawyers andexperts) Interviews withkey civil societyactors, (state authorities, informants 60 27 13 15 5 - 2. COUNTRY PROFILES

2.1 Pre-Reform Countries

2.1.1 Madagascar’s Nationality Law

Madagascar, with a population of approximately 22 million, has explicitly discriminatory nationality laws. Madagascar denounced the 1954 Convention Relat- ing to the Status of Stateless Persons (1954 Convention) in 1966 and it has never - whichratified include the 1961 the Convention Convention on on the the Reduction Elimination of Statelessnessof All Forms (1961of Discrimina Conven- tiontion). against However, Women it has (CEDAW), ratified a the number International of international Convention human on the rights Elimination treaties of All Forms of Racial Discrimination (ICERD), the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treat- ment or Punishment (CAT), the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CRMW) and the Convention on the Rights of Persons with Disabilities (CRPD). Madagascar is also a state party to the African Charter on Human and Peoples’ Rights (ACHPR) and the African Charter of the Rights and Welfare of the Child (ACRWC). Further, it has signed the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (PRWA). According to Article 137 of the 2010 Constitution of other laws.9 In addition, Article 6 of the Constitution states that all individuals areMadagascar, equal before international the law and treaties, prohibits once discrimination ratified, formally on groundstake precedence of, inter overalia, sex.10 Consequently, Madagascan law, if interpreted and applied correctly, is not discriminatory. However, in practice, Article 6 and Article 137 of the Constitution are ignored and instead Madagascar’s Nationality Code11 is taken to be the relevant law by the administrative authorities and the courts.

The Madagascan Nationality Code was adopted at Madagascar’s independence in 1960. It distinguishes between those who are automatically Madagascan at birth and those who must go through a discretionary application process. Arti-

9 Constitution 2010, Article 137. 10 Ibid., Article 6. 11 Ordonnance n° 60-064 du 22 juillet 1960 portant Code de la nationalité malgache (J.O. n°111 du

23.07.60 p.1305), modifiée par la loi nº 61-052 du 13 décembre 1961 (J.O. nº 201 du 23.12.61, p.2260), dula loi 01.01.96, nº 62-005 p.. 3du et 6 13). juin [Madagascar], 1962 J.O. nº 228 1 January du 16.06.62, 1996, p.available 1075), l’ordonnanceat: http://www.refworld.org/do nº 73-049 du 27 août- 7 cid/4f5473682.html1973 ( J.O. nº 934 E.S.. du 27.08.73, p. 2713 ) et par la loi nº 95-021 du 18 septembre 1995 (J.O. nº 2341 8 EQUAL RIGHTS TRUST 13 12 before they reach theageof21. mother andaforeign father may beableto acquire nationality by applying Madagascan nationality”. Thus,achildbornwithinmarriage to aMadagascan a Madagascan motherandaforeign father can,uptilltheageof majority, claim through anapplicationprocess. UnderArticle16,“thelegitimate childbornto MadagascanThe also detailseligibilityto NationalityCode acquire nationality tional obligations andtheprovision ofArticle6itsown Constitution. discriminatory provisionslawthe in are contrary internato both thecountry’s regardwith toconferral toof nationality foreign a stateless ora spouse. the law.Madagascan enjoymen also rightsenjoyed not by Madagascanwomen womanautomatically conferaccording hernationality toprovisions themain of unknown nationality, or if the childis born outof wedlock, can aMadagascan acquire it through their mother is more limited. Only to if the father is stateless or of opportunity the whereas father, their through citizenship agascan in andoutofwedlock. Inmostcases, childrenautomatically will acquire Mad born children between discrimination significant as well as women, and men These provisions clearly showapproach anunequal torights the nationality of the childisbornwithinoroutsideofmarriage: acquire Madagascanautomatically nationality birth, depending atonwhether Code,Under the Nationality different articlesstipulate who isconsidered to crimination onnumerous pointsinthesections which arein practice. applied internationallaw. However, theCode goes onto contradict theright to non-dis therightline with to freedom from discrimination on grounds of sex provided in legislation”, which wouldCodethe Nationality suggestthat must beread to bein apply,published even ifthey are contrary to thedispositions of theinternalMadagascan and ratified duly agreements or treaties international in contained Code states7 oftheNationality cle dispositions relative“the that to nationality 15 14

engender discriminationagainst children belongingto minoritygroups). origin, for example by considering thechild’snameorappearance (grounds which have thepotential to to thedifferent ways inwhich itstipulates how itisto bedetermined whether thechildisofMalagasy of theenjoyment ofnationalityby foundlings andmay alsobeproblematic initsimplementation due where itispresumed oneorbothparents isMadagascan. Thisarticlerelates to thespecificquestion Article 5oftheNationality Codestates thattheageof majorityis21. See above, note 9,Article6. Nationality Code,Article22. A furtherprovision, Article11,confers nationalityonachildborninMadagascar to unknown parents, 2. 1. Article 10 2. 1. Article 9 A childmarriage bornoutsideof the if mother is ofunknown A child bornoutsideofmarriage ifthe mother isMadagascan A child borninmarriage to aMadagascan mother andafather A child borninmarriage to aMadagascan father nationality butthe fathernationality isMadagascan. who orisofunknown does nationality nothave nationality 15 Thoseborn outsideofmarriageto aMada 12 14

13 The - - - - gascan father are similarly eligible to acquire nationality by application. How- my children’s future ever, the government may oppose the individual’s acquisition of nationality under Article 18 of the Nationality Code for reasons of their “indignity, default or inadequate assimilation, or serious physical or mental disability”. Accord- ingly, not only are children who seek to claim nationality through this provision required to go through a laborious and challenging application process, but they are also subjected to additional criteria through which the govern-

including by directly discriminating on grounds of disability. This discrimina- profiles country tionment is has also the applicable discretion for to a determine child adopted whether by a theyperson are of worthy Madagascan of citizenship, nationality (Article 17) and for a foreigner or stateless woman who wants to acquire the nationality of her spouse (Article 24).

Outside of these provisions, individuals may only acquire nationality by naturalisation, which necessitates that they: are over 18 years old; “of sound mind”; are not a danger to the community due to disease; are of “good moral character” and have not been incarcerated for more than one year or been sentenced for preceding the application; and demonstrate their “assimilation” to the Madagas- canone community.of a long list16 of offences; have been resident in Madagascar for the five years

2.1.2 Nepal’s Nationality Law

Nepal, with a population of approximately 27 million, currently upholds dis- the 1961 Convention. However, Nepal is a party to several other human rights treatiescriminatory which nationality call on states laws. toIt hasensure not theratified prevention either theand 1954 reduction Convention of state or- include CEDAW, ICERD, CRC and ICCPR. Under Nepalese law, international trea- lessness and to uphold equal access to the acquisition of citizenship. These laws contradict such treaty provisions, the national laws are void.17 The Interim Constitutionties ratified or (2007) acceded also to requiresby Nepal theare directlyState “to enforceable, implement andeffectively where nationalinterna- tional treaties and agreements to which [it] is a party”.18 These provisions are 19 extremely significant, given the strong treaty ratification record of Nepal. - There are three legal documents governing citizenship issues in Nepal: the- Interim Constitution; the Nepal Citizenship Act (2006); and the Nepal Citizen ship Rules (2006). There are also two directives on citizenship mainly concern ing certificate distribution procedures. In both the Interim Constitution and the Nepal Citizenship Act, there are provisions for women to independently

16 See above, note 13, Article 27. 17 Treaty Act, 2047 (1990), Section 9(1). 18 Interim Constituion of Nepal, 2063 (2007), Section 33(m). 19 International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, So- cialIn addition and Cultural to the Rights conventions (ICESCR), listed the in Convention the text above, against Nepal Torture has also and ratified other Cruel, the Optional Inhuman, Protocols or Degrading to the 9 Treatment or Punishment (CAT) and the Convention on the Rights of Persons with Disabilities (CRPD). 10 EQUAL RIGHTS TRUST 22 21 20 hold survey by theForum for Women, Law andDevelopment (FWLD),which operative. Thismay beoneofthereasons underlying the results ofahouse who are nolongerincontactwiththeirex-partner orwhose partner is unco dren who canbeleftstateless, butalsowidowed women andsingle mothers longer acquire citizenship through their father. Consequently,no also it is can not just left chil or away passed husband their before citizenship acquire not powertowhenwomen’scomes it Womencitizenship. toclaim ability who did accompanied by her husband or a member of his family, men wield significant be must and office district the a to certificate citizenship husband’s provideher of copy must woman a since practice, In marriage. after citizenship alese that Nepalesewomen marriedto foreign menare barred from obtainingNep and the citizenship certificate of her husband or father-in-law. This also means certificate marriage her of copy a including documents provide must zenship citi for applying woman Nepalese married a Directive,Procedure Certificate registeredbe must accordingThus, husband. her with toCitizenship 2006 the she then parents, her through citizenship acquiring before married is woman Nepalese law alsodiscriminates against women inthecontext ofmarriage.Ifa not result intheconferral ofnationality”. a foreign father “theoverwhelming majorityofnaturalisation applicationsdo margindiscretion. of discretionthe Indeed, for issuchthat childrenborn to procedure isoverly bureaucratic andtheNepalese authoritiesenjoy awide citizen again and foreigner a is notgrantedship must seeknaturalisation. butthechild Thisnaturalisation is child the assumed is it then is, father their that thefather was notaforeigner. an evidentiary burden onallmothersapplying withoutthefather, to establish pursuant to Article8(2)oftheConstitution. Ontheother, itindirectly imposes alese women who have married foreign men from passing on their citizenship impact ofthisprovision istwofold. Ontheonehand,itdirectly excludes Nep herein liesNepal’sgendered approach to theattributionofnationality. The is notinplacefor Nepalesemenwhose children have aforeign motherand cases, the child must instead apply for naturalised citizenship. This restriction foreigner.a is father the such if In descent bychildren their to veycitizenship Interimthe of Article 8(7) Constitution, womenautomatically cannot con Act andRules restrict theenjoyment ofnationalityrights by women. Under Citizenship Nepal the and Constitution Interim the However,of articles other would becompliantwithinternational standards asitisnon-discriminatory. citizenship. Nepalese for eligible is person” such states thatanyone “whose father pass on citizenship to their children. Article 8(2)(b) of the Interim Constitution single naturalization application was successful”. conducted by FWLDreveals thatinthefirstsixyears oftheimplementation oftheseprovisions, nota session ofthe Universal Periodic Review: Nepal, the Institute onStatelessness andInclusion, Nepal Civil SocietyNetwork ofCitizenshipRights, theGlobal Campaignfor Equal NationalityRights and ese Citizenship Lawsfrom aGender Perspective National Women Commissionand Forum for Women, Law and Development (FWLD), See also Nepal Citizenship Act, 2063(2006),Section3. See alsoNepalCitizenshipAct, or Joint Submission to the HumanRights Council atthe 23 mother 21 , February 2014. March 2015.Thisreport goeson to addthat“research Ifanapplicantchildcannotprove who 22

is a citizen of Nepal at the birth ofbirth the at Nepal of citizen a is 20 Thisprovision, onitsown, Analysis ofNepal rd

------my children’s future 74% of women.23 In addition, Nepalese men also enjoy rights not enjoyed by Nepalesefound that women 87% of with men regard over 16 to hadconferral citizenship of nationality certificates, to a comparedforeign spouse. to only A Nepalese man who marries a foreign spouse can convey Nepalese nationality to his spouse through a naturalisation process which takes approximately 35 days. While there are various conditions attached to this process (such as the spouse being required to renounce her previous nationality), it is reasonably straightforward. However, there is no similar process for Nepalese women to convey nationality to their foreign spouse. Instead, foreign men married to profiles country residence-based naturalisation process which requires 15 years of residence beforeNepalese an womenapplication can canonly be access made. Nepalese citizenship through the standard,

Nepal is now debating a new constitution, to complete its transition to democracy. Progress has been hampered by disagreement between political leaders so the drafting process is still ongoing. A new text of the draft constitution was approach of determining that both “mother and father” must be Nepalese for prepared by the first Constitutional Assembly in 2012, which takes the troubling- holders as the “and-clause”, may technically be gender neutral, but if maintained a child to acquire citizenship. This provision, commonly referred to by stake of the inclusiveness of Nepalese rules on nationality. Single parents could be expectedin the new to constitution, provide unattainable it would evidenceactually mean that the significant missing orregression deceased in mother terms or father is Nepalese which could have the effect of causing many more cases of statelessness. The key focus of organisations promoting gender equal nationality rights in Nepal is therefore to achieve the enshrinement of an “or-clause” alongside the repeal of other discriminatory provisions, rather than the regressive “and-clause”. For now, as set out in the above paragraphs, Nepalese citi- largely been progressive, and through its jurisprudence it has addressed gender discrimination.zenship rules remain However, gender the discriminatory.Supreme Court Thejudgments Nepalese are Supreme implemented Court only has creating a broader precedent or bringing about systemic change. with regard to the specific case under consideration, so do not have the effect of 2.1.3 Access to Nationality in Practice in Madagascar and Nepal

As outlined above, the letter of the law itself presents a number of problems with respect to the transmission of nationality from mother to child in Mada- gascar and Nepal. Nevertheless, in certain circumstances it is, in theory, possible for a Madagascan or Nepalese woman to pass on her nationality. Yet, even where they are often not considered nationals. Many of those interviewed in Madagas- children of national mothers do qualify for citizenship under the law, in practice where they were formally eligible. car and Nepal recounted the difficulties they faced in accessing nationality even

23 FWLD, Acquisition of Citizenship Certificate in Nepal: Understanding Trends, Barriers and Impacts, 11 February 2014. 12 EQUAL RIGHTS TRUST 26 25 24 procedures.application Yousef from Madagascar was repeatedly told by thedis Arab,as or Comorian oftensounding names– Muslim encountered problemsin dren who, for example,werehad namesthat notconsidered Madagascan –such theynational, would oftenthem away turn orrefuseChil them documentation. interviewees indicated that if an official “suspected” an individual of not being a or when theindividual is suspected of possessing fraudulentdocuments. the authorities when theindividual hasanamewhich is perceived as “foreign” need further proofthe individual that isMadagascan. This is often demanded by they believe they if documents further request discretion, may,their officers at but certificate, residency and certificate birth a are card identity national a for dles due to ethnic discrimination. In Madagascar, thedocuments needed to apply this was a problem for Dalit and specifically Terai people Nepal who In reported. familiesface some additional that prejudices hur significant two wereexample, application for bias, racial and Religious card. the identity national a or citizenship during for process made decisions influence discretion, unfettered their given and, widespread often are officials local among attitudes Discriminatory stop Anitaregistering thebirths ofherchildren andacquiringcitizenshipherself. to able wererelatives and villagers the that meant officials the of discretion The how thisplayed outinherfamily: in thefamily to override access torights. fundamental went Anita onto explain my husbandalong.” when educated people only behave inthisway? They always asked me to bring father was born heretheystill but didn’t listen”, she recounted.can Ido “What grandson’, VDC didn’t approve of issuing citizenship. I told them that the [child’s] whohusband wasrefusing to co-operate. “Although my father‘he ismy saidthat unsuccessful in her application because the officials kept asking her to bring her was she child, her for citizenship obtain to (VDC) DevelopmentCommittee lage InNepal,anexamplethe applicant. of is Anita. that sions and others arbitrarily increase theproceduraland evidentiary burden on of theirownsome of whichmaking, blatantly contradictlegal national provi discretion. The research showed theextentsignificant to which differentdistricts apply differentrules enjoy level district the at authorities countries, both In District Level Discretion 27 report. Ibid. used to protect theidentityofinterviewees. Information provided by United NationsDevelopment Programme Madagascar intheirreview ofthe Equal Rights Trust interview withAnita,27October 2014,Kathmandu, Nepal. In providing accountsfrom interviews throughout thisreport, inmostcasespseudonyms have been and maybe that iswhy [my relatives] fear Imightclaim property. my father anduncle are gettingtheir share ofancestral property disapproved TheVDConceto tried giveit. of andtheystopped it(…) Even whenVDC triedto issuemy citizenship,my uncle andaunty

25 Unfortunately thisdiscretion allowed for power politics 24 When she went to theVil 26 27 Many - - - - - my children’s future due to his name, which is not considered Madagascan, and added: “I have one childtrict official and I have that given he was him not a Madagascanreally Madagascan. name. IHe prefer believed not to that see this my waschild mostly in the same situation as me. I will do the same if I have more children.”28 child’s application to be subjected to such additional layers of discrimination. InNot Nepal, obtaining strong automatic prejudice citizenship against women through is apparent their mother in the leavesattitudes scope of public for a

- profiles country ity of whom are upper caste Brahmins.29 So even where, under the law, women servants and first instance decision makers, all of whom are men and the major were eligible to pass on their citizenship through an application procedure, Lackmany of prejudiced Awareness officials simply rejected such applications outright.

rotatedOne of thein andreasons out ofthat post. district30 There level was authorities also a clear make lack the of process understanding so difficult by is their lack of understanding of the law, especially where officers are regularly- agascar, for instance, families were sometimes unaware that an application for nationalitythose attempting must tobe obtain submitted citizenship prior toof theirthe age own of rights majority and andeligibility. consequently In Mad missed the deadline. The declaration that a foreign or stateless woman intends later than the moment of the marriage celebration – but many people ignore this to take Madagascan nationality must be made before a civil officer of the state no are aware of it. As a result, the individuals concerned must go through the reg- ularprovision naturalisation and the civil process. officer From of the its stateexperience does not in dealingnecessarily with ensure the issue that on they the ground, one NGO in Nepal estimated that 90% of problematic cases concerned people completely unaware of their rights, of any information regarding the con- 31

Lacktent of of the Access law, and specifically of how to overcome statelessness.

Another problem highlighted in both countries is that an application for cit- ofizenship their father’s registration birth, has resulting to be made in the in need a particular to travel district. to make In an Nepal, application. adults must apply for citizenship in their district of birth and children in the district such large countries with often limited transportation available.32 In addition, NepaleseThe practical women and financialare often burden compelled of doing to apply so can in be the prohibitive, district of especially permanent in residence of their spouse, even if the spouse is dead, missing or not cooper-

28 Equal Rights Trust interview with Yousef, 24 January 2015, Majungha, Madagascar. 29 Equal Rights Trust interview with Sabin Shrestha, FWLD, 13 February 2015, Kathmandu. 30 Ibid. 31 Ibid. 32 Equal Rights Trust interview with Suman Adhikari, Ward Secretary, Kathmandu Municipal Council, 13 11 February 2015, Kathmandu. 14 EQUAL RIGHTS TRUST 36 35 34 33 yet to obtaincitizenship. citizenship. However, nine months after this notice was issued, Arjun Kumar was respond within amonthwithinformation onwhy they hadfailed to granthim Supreme which issued anoticeto Court, thedistrict them toauthorities, asking the with petition own his filed he 2013, In certificate. citizenship a granthim to leveltrict authority, theychange thelaw,one casedoes not saidthat and refused recommending him for citizenship. However, when he took this letter to the dis granted through themother,he went toback theVDC, whichletter issued him a later, afterthe about hehadlearnt mother.throughhis citizenship yearsfewget A not could he law the under that said VDC The old. years 18 was he when 2002 in citizenship for applied Nepal, for example,whose mother is Nepaleseandfatherborn in ofIndianorigin but against suchdecisions. of thisprocessThe limitations are ArjunKumar, evident. courts have nojurisdiction to review decisions servantsof public or hear appeals fact aright recognised unfortunatelyunder the NepaleseConstitution,but the forany instance, that Court, oversight judicial is in can beensured. “Nationality” Nepal, itis only through the extraordinary jurisdiction of the Nepalese Supreme isthelimitedCompounding thesechallenges oversight. possibilityofjudicial In Limited JudicialOversight and/or finedNPR25,000–50,000(US$245–490). years three to months six for imprisoned be shall national foreign a of zenship citi the wronglyverifies who person a that stipulates Act Citizenship the since reforms. business”.a is “citizenship discretion to extract money fromled onerespondent applicants to observe that The corruptpracticesble. ofsome individualdecision-makers who exploittheir eligi legally not were they though even bribes paying by citizenship access to identity card.national At thesametime,many individuals interviewed were able bribes were often demanded to completeprocedure theapplication toa obtain Various respondents reported, especially inMadagascar,prohibitively that costly Bribery, Corruption andFear to apply for citizenship. whose family membersoriginate from different areas, have to travel inorder residence. Thus,thosewho have migrated to another part ofthecountry, or ating. InMadagascar, applicationsmustbemade inthedistrictofpermanent 38 37

Sabina Damai v Government of Nepal et. al., Sabina DamaivGovernment ofNepalet. See above, note 20,Section21(2). See below, section2.2.3. Equal Rights Trust interview withMahmoud,16January 2015, Antananarivo. Antananarivo. Equal Rights Trust interview withArjun Shah,10February 2015,Kathmandu. Equal Rights Trust interview withSheikhOmar, NationalCouncil for Muslims,13January2015, 35 Another problem in Nepal is the fear of punishment among officials, among punishment of fear the is Nepal in problem Another 33 38

Briberywas alsoreported inKenyaeven following Sabina Damai Sabina Writ No.067-WO-0703 oftheyear 2067BS(2010AD). case, 36

37 in which citizenship was

- - - 2.2 Post-Reform Countries my children’s future

2.2.1 Indonesia’s Nationality Law

Indonesia is the fourth most populated country in the world with a population of 234 million, of which more than 32 million live below the poverty line. -

includingIt has not CEDAW,ratified eitherCRC, ICERD the 1954 and ConventionICCPR. Indonesia or the is1961 also Convention. a member ofHow the profiles country Organisationever, Indonesia of hasIslamic ratified Cooperation a number which of international has elaborated human norms rights relating treaties, to children’s right to nationality and the prevention of statelessness.39 Indone- sian law is silent on the position of international law and whether it takes precedence over domestic legislation.

Following a long period of authoritarian rule by General Suharto, Indonesia tran- sitioned to democracy in 1998 and held direct presidential elections in 2004. -

The previous law on citizenship was Law No. 62 from the year 1958, which pro Indonesia,vided that citizenshipregardless ofbe theexclusively mother’s transferred nationality. through The transition the male to line. democracy In cases where the father was a foreign citizen the child would also be a foreigner in president, Susilo Barnbang Yudhoyono. The amended law recognised that “citi- made way for the reform of the nationality law under the first directly elected with the development of the civic administration of the Republic of Indonesia”.40 Thezenship 2006 is lawa basic reform right” removed and determined the gender that discriminatory the old law was provisions. “no longer Children in line under 18 years of age were permitted retrospective acquisition of Indonesian citizenship, by application, until 2010.

Article 4 of the new Indonesian Citizenship Law states that the following are Indonesian(2) children citizens born by birth: through legal wedlock from an Indonesian father and mother; (3) children born through legal wedlock from an Indonesian father and an alien mother; (4) children born through legal wedlock from an alien father and an Indonesian mother; and (…) (7) children born out of wedlock from an Indonesian mother.

- ship Law, such as removing ethnic discrimination and putting certain safeguards inThe place reform to prevent of 2006 persons also brought from becomingwith it other stateless. important This changes included for ensuring the Citizen that

39 See the Covenant on the Rights of the Child in Islam, 2005, adopted at the 32nd Islamic Conference of Foreign Ministers, 28–30 June 2005. 40 15 See preambles b and c to the Law on the Republic of Indonesia No. 12 on Citizenship of the Republic of Indonesia, 1 August 2006 (Citizenship Law). 16 EQUAL RIGHTS TRUST 41 an equalbasisto Kenyan men. nowenjoy rightthe to confer tonationality their non-Kenyantheir onspouses a Kenyan national.Moreover, withthisconstitutionalreform, Kenyan women be to presumed is unknown is citizenship whose old years eight under child now beableto alsoobtainthenationalityoftheirKenyan mothersandthata that children who hadobtainedthenationalityoftheirforeign fathers should citizenship. dual This hasapositive effect denouncing interms of children’s nationalityrights asitmeans and obtaining for procedure the outlines that Kenyathe of ImmigrationAct8 and expoundedby Section Citizenship further nationality,which was previously prohibited. provisionConstitutional The is considered Kenyan nationals. abroadmothers before intoConstitutioncame new the forcebealso should Article 14isappliedwithretroactive effect sothatchildren born to Kenyan born inKenya, eitherthemotherorfather ofthepersonisacitizen.” is person the not or whether birth, person’s the of day the on if birth by citizen rights. The Constitution now provides the following inArticle14: “A person is a provisiondiscriminated that againstwomen respect with to theirnationality ing apushtowards legislative gender equality. This included theremoval of the Constitution broughtThe new wholea it with host ofprogressive rights, includ gave birthinsideKenya. tory attitudesandrestrictions ontransmission ofnationalityby women who tice, thisbiasedapproach to nationalityrights alsocontributed to discrimina with anon-Kenyan father were notableto transfer theirnationality. Inprac underthelaw,that, Kenyan women who gave birthoutsideKenya to achild abroad, only aKenyan father hadtheright to confer nationality. Thismeant children borninKenya onan equalbasisto men.However, ifthechildwas born Under theprevious Constitution, Kenyan women conferred nationalityto their ratified with system domestic treaty law now having direct effect intheKenyan the legal system. in position prominent a law international ACRWCthe PRWA. and adoptedConstitution, The new inAugust2010, gave toparty a also of regionalnumber a rightshuman treatiesthe ACHPR, including rights treaties which include CEDAW, CRC, ICERD, CRPD and ICCPR. Kenya is Convention.human However,1961 international the of number a ratified has it Conventionor 1954 the either ratified not has It reform.statutory and tutional research has most recentlythat rules, through changed its nationality consti Kenya,of approximately withapopulation 40 million, is the countryinthis 2.2.2 citizenship asaconsequenceoflong-term absencefrom thecountry. Indonesians living abroad would notbecomestateless ifthey were to losetheir 42

Constitution ofKenya, Article14.1. Commission: Kenya Dialogue onGenderEquality, andStatelessness Nationality See alsoUnited NationsHigh Commissioner for Refugees (UNHCR), Kenya’s NationalityLaw 41 42 Thecurrent Constitution alsopermitsdual The Citizenship and Immigration Act which Act Immigration and Citizenship The UNHCR andthe Kenya HumanRights , 23March 2015. - - - - ensures the coming into force of the constitutional articles on nationality was my children’s future adopted in 2011, at which time all of the new eligibility rules entered into effect.43 together Sectionwith Clause 6 of 30 the of Kenyan the Sixth Citizenship Schedule andof the Immigration Constitution. Act Clause provides 30 for citizenship in accordance with Article 14 of the Constitution, when read theacts applicationas a savings of provision the former by providingConstitution for tocitizenship include those by birth who for would those havewho acquired citizenship under the former Constitution, and crucially extends profiles country foracquired those borncitizenship outside. if the former Constitution had included the right to be granted citizenship from both a Kenyan born father or mother (not just father) 2.2.3 Access to Nationality in Practice in Indonesia and Kenya

Both Indonesia and Kenya should be commended for their reforms towards gender neutral nationality law. The positive implications of these reforms for indi- 44 Nevertheless, with legislative reform having been achieved only recently, both countries continue to face some obstacles withviduals regard and familiesto ensuring are thatsignificant. everyone can effectively access nationality through their mother, as stipulated by law. It is critical to acknowledge these remaining obstacles and take further steps to address them in order for these countries to become a true example of successful nationality law reform.

Lack of Awareness

In both Indonesia and Kenya there is a lack of awareness that reform has taken

- place, and what it entails, both among potential beneficiaries and government circleofficials of responsibleindividuals whofor implementing had been involved the law. in Inthe terms campaign of the for potential reform beneknew thatficiaries, the law in Indonesia had changed. the researchAccording suggested to an article that, in on the the Jakarta whole, Post only: a specific

Indonesians with foreign husbands have also said they still faced difficulties regarding the nationality of their children, despite the 2006 law on dual citizenship for children under 18. “The information was not adequately spread,” Yoshitani, an Indonesian woman married to a Japanese man said, “especially among housewives.”45

Disseminating information on the reform to the substantial number of Indonesian female migrant workers living around the world presents a particular challenge. In Kenya, the lack of awareness of the reform is most acute among women from

43 Section 7 of this Act limits those who can transfer nationality to their children abroad to those who were Kenyan by birth. This is not gender discriminatory but may present an obstacle for some children’s access to nationality. 44 For more detail on some of these positive impacts see below, section 4.3. 45 The Jakarta Post, 24 August 2014, available at: 17 . “Indonesia seeing ‘positive’ signs on dual citizenship”, http://www.thejakartapost.com/news/2013/08/24/indonesia-seeing-positive-signs-dual-citizenship.html 18 EQUAL RIGHTS TRUST 48 47 46 have traditionally faced greater difficulties in asserting their claim to Indonesian notedbe also should It stigma. individuals that descent of Chinese Indian and child of a mother only” on the birth certificate, something that is a deep cultural born out of wedlock is compounded by the practice of district officials writing “a had childrenof wedlock. out Discrimination againstsingle mothers and children they would have to present themselves assingle mothers or mothers who have pressuresetal may prevent women from registering their child altogether when aDNAmarriage act, test canbeusedfor proof of thepaternalsoci but link, often meanstheylegally cannot prove who their father is.Intheabsenceofa entered into a“temporary marriagecontract”are particularly vulnerableas this same religionthe legally can marry. of marriages in Indonesiaare unregistered be must both present. The parentscertificate, must also present birth a marriage certificate, the yet more than on half names parents’ both record to order In order to acquire orconfirmnationality. have. For instance, they are less likely to have the documentationrequired in for a number of reasons, are less likely to take advantageof any information they migrantworkers are lesslikely to have accessto information onthereform and, try assingle mothers of children from These women menintheMiddleEast. areparticularly a marginalised groupin Indonesia, often returningto thecoun cal benefit for marginalised women and their children. Female migrant workers Againstthis background, thelegalreforms appear to havepracti hadtheleast Reaching Marginalised Communities deal withthechallengeofclaimingtheirnationalityundernewlaw. provide individuallegal and assistancetocounselling affected help populations countries, thereboth wasof civilon thepart of capacity lack a also society to clear guidelines,they continuedto operate asthey hadprior to thereform. areas, were alsounaware of the newlaw; asthey hadnotbeenprovided with rural in particularly officials, government that indicated research Kenya,the In reportedevident an of awareness lack of theresponsibleon thepart authorities. respect to the officials responsible for implementing the law, in Indonesia, NGOs forof nationality tation their children through theavailableprocedures. With manyAs aresult, this entails. of them hadnoteven tried to secure documen the referendum vote that passed werethe Constitution,but unaware of what the Constitutionwasthat amendedin2010 some mayand have participated in disadvantagedsocio-economic backgrounds. Many ofthesewomen were aware

Muslims andinsome casesfor inter-religious marriages. is anotherregistration office,theCivil Registration Office(Kantor Catatan Sipil)for thosewho are not Indonesia’s MissingMillions Identity: obtaining birthcertificates.” (Australian IndonesianPartnership for Justice, tation relating to marriageanddivorce isassociated with75%ofchildren from thosemarriagesnot A study inIndonesiafound that“inthepoorest 30%ofhouseholds,thefailure to obtainlegal documen Kisumu, Kenya. Equal Rights Trust interview withRichard Olela,HeadofRegistration, DistrictOffice,6February 2015, This istruefor Islamic law andIslamicregistered (Religious Matter Office/KUA) marriages butthere , 2014.)

48 Accordingly, children whose parentshave 47 andinmostcasesonly persons of AIPJBaseline Study onLegal 46 In - - - - - nationality, despite having been settled in the country for several generations. my children’s future In Kenya, regulations enforcing the right of the child to know their father mean that the father’s name must be put on the birth certificate. Often when the father is foreign, this would be very difficult to do due to the lack of documentation of the onfather. grounds Therefore, of ethnicity the children and national would origin be unable also tocontinue acquire to a affectbirth certificatethe possibility and hence a national identification card once they turned 18 years. Discrimination resides in one of the border regions of Kenya or the father is from a stateless profiles country for some individuals to benefit from the reform. For example, when the family documents are issued.49 The research indicated that it was harder to convince suchminority, committees specific that“vetting a child committees” is Kenyan ifmust they be had satisfied a foreign before father. national Some familiesidentity reported resorting to fraud to try to overcome such discrimination. For example, some women faked documents to manipulate the place of birth or the father’s name, or pretended to be a single mother with the father unknown, in order to

Limitedobtain a Retroactivebirth certificate. Application

In Indonesia, children born before the reform in 2006 were given four years to to those under 21, retrospective acquisition was only available to minors. Addi- tionally,retrospectively several benefit of the keyfrom informants the law. However, interviewed as the indicated law limits that dual they nationality knew of

Two common causes for missing the deadline were lack of knowledge of the cases where people did not benefit from the law during the four year window. example in the event that a father dies and the family returns to Indonesia from livingreform abroad). and lack of understanding of the benefits of acquiring nationality (for

In Kenya, children who had already accessed the nationality of their foreign 50 Although dual nationality is now allowed, in order to apply for their mother’s nationality retrospec- fathers found it difficult to apply for Kenyan citizenship. - try. Although this is possible and should be unproblematic, the process does tively, an individual must register the fact that they are a citizen of another coun from claiming Kenyan nationality. incur costs, which prevents some families from fulfilling this step and therefore

49 Kisumu, Kenya. Equal Rights Trust interview with Richard Olela, Head of Registration, District Office, 6 February 2015, 50 19 Mombasa, Kenya. Equal Rights Trust interview with Alan Nyangi, Legal Officer at Kituo Cha Sheria Office, 3 February 2015, 20 EQUAL RIGHTS TRUST claiming nationality. bribes. Circumstancesing heavilysuch asthesecan impedeone’saccessto certifi cates were free of birth charge, there were still cases of and government officials demand certificates marriage the although that reported informants with apparentlybureaucratic insurmountable barriers. InIndonesia, some key documents in circumstances where, before they did so, they were presented of families reportedthey that hadresorted to paying bribes in order to obtain number A officials. encounteredamongst corruption Kenyaendemic in the was families some by reported reform law the from benefitting to barrier Another Corruption - - 3. IMPACTS OF GENDERED NATIONALITY LAW ON THE ENJOYMENT OF RIGHTS

- bePossessing excluded the from citizenship certain rightsof a country – such isas often political the keyrights that or allows access an to individcertain freeual to government access a wide services range – whichof rights they and would benefits. be expected Foreigners to obtain in a country in their ownmay country of nationality. Coupled with the fact that, as discussed earlier, gender discriminatory laws disproportionately affect families from vulnerable groups (women from ethnic or religious minorities, low socio-economic backgrounds or female-headed households, for example), making the laws amount and contribute to particularly invidious violations of the right to non-discrimination, this then often leaves those affected in dire circumstances with limited access - inatory nationality laws open up new pathways through which families can be furtherto other discriminated most basic rights. against By withinpreventing society. access to citizenship, gender discrim

Mom, why is it difficult? What is wrong with us? We are good students, I am studying well, we are good daughters, we have not done anything wrong. Why are we facing this hardship? Why are my friend and I treated differently? Why is she able to travel everywhere outside of Nepal and have a birth certificate and why can’t I? What is wrong, what have I done? 51

This is how Deepti, a Nepalese woman, described the questions she had been asked by her two teenage daughters, who were left stateless because she had been unable to transfer her nationality to them as she could not prove who their father was. Their statelessness has led to further disadvantage and frustration. Deepti spoke of the problems her daughters were facing in accessing some of the most basic rights, and the emotional toll this was taking on the whole family.

Analysis of the research data reveals various ways in which children’s lack of - ing human rights consequences have an impact on all aspects of the lives of those affected.access to This their Part mother’s presents citizenship the most negatively common problemsaffects families. reported The by wide-reach families in all four countries in those cases where individuals have been unable to acquire

21 51 Equal Rights Trust interview with Deepti, 13 October 2014, Kathmandu. 22 EQUAL RIGHTS TRUST 53 52 she was discriminated against by hercommunityaswell asauthorities: affected. Siwani, thestateless daughter of a Nepalese woman, talkedhow about Statelessness itself canbecomeafurther ground for discrimination against those Tanzania orKenya, andwere therefore stateless. either by citizens as recognised not were children year,the a than more taken Whilst thefamily awaited the decision of the committee, which had already a father? How were you born?They are afraid asthey are foreigners here”. would give them citizenship: ities to knowthe children’sthat father wasforeign believeshe didnot as they how about talked problematicthis process especiallyhad been, want asshedid not the author Zahra Kenyan. was mother their that proof having despite throughvetting a system to ascertain whether they were really Kenyan or not, go to had children Tanzanian.The as registerednever therefore were children never legallyinstead married but onlyNikkah,Islamic the carried out the and Zahra from Kisumu in Kenya had four children with her Tanzanian partner. They layer ofprecariousness andaggravate theriskofstatelessness. further a maycertificateadd birth having a not citizenship, of acquisition the in role a play discrimination of forms other and gender-based When citizenship. towards step first the is ensuring recognitionperson before asa thelawand is often needed to secure registration birth countries, these In case. the often wasrealitythis in citizenship, obtain to on go childrenwouldnot the that mean registration documents for their children. Although this does not automatically by those interviewed started off due to gender discrimination birth in obtaining statelessness emerges. Itis important to notemany that of the problems faced country,mother’s the in citizenship of denial the with that so citizen, a as nised where. Mostpeopledo not have any other country where they would berecog statelessbe left can thereby and to unable rights accesstheirfundamental any When women areto unable to passontheirnationality theirchildren, children 3.1 a key thread runningthroughout theconsideration ofimpactsdiscussedbelow. collected. testimonials illustratedthe throughresearchand the during identified quences their mother’s nationality. 54

SIM card. However, thereport focuses onthemostsignificantandwidely reported problems. research, suchasdifficulty inobtainingadriving licence,openingabank accountorpossessingaphone discriminatory nationalitylaw orpractice. Otherproblems were alsoraised by respondents duringthe Please note thatthisisnotanexhaustive overview ofallchallengesfaced by families affected by gender in thepost-reform countriesseeabove, section2.2.3. reform allowing women to transmit nationality to theirchildren. For more onimplementation problems law, butalsocasesfrom Indonesia andKenya where families have beenableto not(yet) benefitfrom the Equal Rights Trust interview withZahra, 7 February 2015,Kisumu, Kenya. This includesnotonly casesinMadagascar andNepalwhere accessto nationality isrestricted underthe Statelessness The Right to andtheProblem aNationality of 53 Asdiscrimination is a key dimensionof the rightsin all impacts,itis 52 The analysis focuses on theprominent conse “The vetting people say to my child, you don’t have 54 - - - -

Yes, my neighbours speak badly to me because I am stateless. They my children’s future tell me that I am not worthy of doing anything. They mean that I can’t study further, I can’t get my certificates, I can’t fight for common man posts, I can’t do anything to make something of myself and so why would they want to speak to me. They are my neighbours, my relatives. If I had citizenship, obviously they would respect me because in our country respect is given to fathers and only girls who have a father get respect.55 impacts of gendered law nationality impacts on enjoyment of rights In Madagascar, there is also often a negative public perception of the stateless and stateless persons are often believed to be illegal immigrants who do not because they are stateless. But they do. They do all the time”, said Mamadada, ain stateless fact “deserve” woman to in be Madagascar. citizens. “It56 isStateless not OK personsto discriminate there often against talked someone of how they felt they were treated as the least deserving of help in the country because of their situation. They compared themselves with people who were ill, stating that ill persons had access to treatment as they were not seen to be at fault for what had befallen them, whereas stateless persons were seen to have done something wrong to acquire that status. Stateless persons in Madagascar felt that they were not only excluded by the authorities, but were also shunned by society, and were even neglected by precisely those organisations that were there to help marginalised persons. As another stateless person in Madagascar explained, “stateless people have no value, no NGOs are taking care of them, they have lived their whole lives like this and no-one cares”.57

This precarious situation – the lack of a nationality or of any other legal status – in turn hinders access to rights and impacts negatively on the social and emotional welfare of the family, further disadvantaging the already marginalised.

3.2 Cumulative Human Rights Violations The day to day, year to year, generation to generation struggles experienced as consequential restrictions in accessing even the most fundamental rights, as set outa result below. of lackMany of of access the families to citizenship interviewed are better lived understoodin very poor in areas. the light Stateless of the- ness and the inability of children to obtain nationality from their mothers in these countries prolongs and exacerbates poverty, and reduces the ambitions and expectations of all families involved.

55 Equal Rights Trust interview with Siwani, 14 October 2015, Kathmandu. 56 Equal Rights Trust interview with Mamadada, 12 January 2015, Antananarivo. 23 57 Equal Rights Trust interview with Hussein, 23 January 2015, Majungha, Madagascar. 24 EQUAL RIGHTS TRUST 58 status hadbeenahugeimpedimentto accessingteaching jobs: authorities hadrepeatedlyshetalked denied her application, ofhowher legal Yemeni citizenship. Now in her late 50s and still without citizenship because the gascan mother a Yemenibut father through whom she was never toable obtain iments inaccessingmostforms of formalhad aMada Mamadada employment. This means thatmanyument. of the respondents were faced with major imped for the government. Mostjobsrequireto theapplicant provide an identity doc the countriesstudied,somejobsareIn reserved forworkingincluding nationals, I cannotdothat”, sheexplained. today. Because if we apply for a higher post they always ask for the citizenship so wonder whether, if I had citizenship, I would have been in a higher post than this Nisa believedtoher left unable this situation that reachpotential. her full “I employers required proof of citizenship: for two years to get citizenship, without success. She talked about why she felt fighting been had she 23, aged now mother,and Nepalese a to Nepal in Born representative oftheway many oftherespondents perceived theirsituation. is testimonyNisa’s citizenship. without left were who those faces that lenges respondents talked of,andcantherefore beseenasoneofthebiggestchal own business.Theimpactonlivelihoods istheissuethatvast majorityof creditaccess or account bank a open forif, they instance, towished theirstart tounable further areresearched, non-citizens countries the of all In job. a accept ing or for applying when card identity citizen’s their produce to people requireEmployersoften citizenship. without those for curtailed seriouslyare doesn’t have what isneededfor working”, sheexplained. Her son was in turn unable to find a job. “He is educated and has studied but he that herhusbandbepresent inorder for them to give nationalityto herson. aban doned herwhen shewashusband pregnant, buttheauthorities have kept demanding her after father her from herself citizenship get to managed Sarita, fromtohad notbeenable Nepal, passnationalityontoher children. She 3.2.1 Livelihoods 60 59

Ibid. Equal Rights Trust interview withNisa,16 October 2014, Kathmandu. Equal Rights Trust interview withSarita,15October 2015,Kathmandu. form. Iwas rejected onthe basisthat couldn’t the continue Ministry to do. ButIwas late applyingbecause Ididnothave acitizenship Education MINESEBto beateacher, which iswhat Iwas trained On oneoccasionwas I asked to apply for of ajob attheMinistry are. Thatiswhy they askfor the citizenship. know will they where we are from, which details,birthour place is,andwho ourparents citizenship have they If us? find they will do anythingwrong intheir organisation andwe runaway, where we trustworthy.If be to considered not are we citizenship Without 60 59 58 Jobopportunities ------waiting for me to sort out my papers. This happened even though it my children’s future was them who asked me to apply. I was really sad that I could not get the job as a teacher in the public sector. Now I am applying for private sector roles.61

Mahmoud, the son of a Madagascan woman from the northern coast of Mada- gascar, was a carpenter by trade. However, after being left stateless when he lost his documents and the authorities refused to recognise him as a national (and consequently refused to renew his documents), he lost the right to practise this of gendered law nationality impacts on enjoyment of rights trade. He found this out when he went back to the organisation that provided the tools for his business. They would not serve him as he could no longer present

I left my family and moved to the capital to start a ColaTea business. I sell my ColaTeathem with in fronthis citizenship of the mosque card. here.” He said:62 He “I said can theno longer ColaTea work business as a carpenter, was a short- so term solution. Despite being repeatedly turned away by authorities he remained optimistic he would get his documents:

I don’t want to beg, which is why I need this short-term business for now. It is not a very stable job. Some days I make good money - especially on Fridays after prayer ‒ but some days I do not.63

In Kenya, those left without nationality face similar problems. Although not all recruitment process during which applicants are usually required to provide ajobs photocopy require appointeesof their national to be identitycitizens ofcard. Kenya, Many problems respondents arise statedearly onthat in thisthe immediate obstacle meant that they did not apply for jobs as they knew that country’sthey would law be reformimmediately and who rejected, had not regardless yet been of able their to qualifications secure nationality or skills. for themJane was despite a Kenyan having national all the whose necessary children documents. were struggling She said to she benefit could from not thetell if this was because of ignorance or discrimination at the district level, and she spoke of her fears for her daughters. Her 19 year old daughter faced problems because she had not been able to obtain an identity card and as a result she was her daughter the lack of nationality as a reason for not taking her on: yet to get a job. Jane spoke of how prospective employers had specifically given She is scared. Last week she was called for interview for an office job in town and they requested that she bring her identity card, so she did not even bother going. Even if she were to get a job, she cannot register for electronic banking. She is scared about her future.64

61 Equal Rights Trust interview with Mamadada, 12 January 2015, Antananarivo. 62 Equal Rights Trust interview with Mahmoud, 16 January 2015, Antananarivo. 63 Ibid. 25 64 Equal Rights Trust with Jane, 29 January 2015, Nairobi. 26 EQUAL RIGHTS TRUST 66 65 onlynot community members oftheDalit that instance, face discrimination in people’s chancesto provide for theirfamilies.research Existing hasshown,for layeradditional an adds and citizenship impeding ing further discrimination, of ties. In Nepal, for example, caste plays a significant role in the process of acquir disproportionately affects families from vulnerablegroups, includingminori livelihoodson citizenship of denial the of impact detrimental the that clear is It ually harassed herintheworkplace, asshehadnoformal contract. Shavana worried her that daughter was vulnerableif, for example,someone sex she was intheprocess oftryingto getcitizenship: lack of citizenship. Shavana said that her daughter always told her employer that children werein precarious left conditionsintheworkplaceof their because A womanfrom theKarana community of herlackcitizenship: explainedhow she saw howand her situation she felt she was paidlessbecause wherewasshe told theythat hirecould contract.She official an without but her organisationsmall a where they were personally awareand ofher abilities 20 year-oldIn Nepal, Siwani explainedshe wasthat onlyto able getajobin benefits andopportunitiesfor promotion alsoseverely limited. far lower for them,even compared to foreign migrantworkers, secondary with some cases, stateless persons interviewedwages complainedthat were always police arrest. Even when some sectors of formal employment were accessiblein workplaceand to rights otherlabour violations,andareincreasedan at risk of oftenthey meansthat are vulnerableto discrimination and exploitationin the informalsector.the in marketWorkingblack the in contractsor official without work to or members familythrough work find to but choice little with families toThe obstacles regularthe using routes to achieve adequate livelihoods leave 67

Madagascar. Equal Rights Trust interview withShavana from theKarana community, 23January 2015,Majungha, 25,000 individuals. They are amarginalised minoritygroup ofMadagascar. in the1880s.Although noofficial statisticsare available, estimates suggestthey make upapproximately Equal Rights Trust interview withSiwani, 14 October 2015,Kathmandu. An ethnicgroup inMadagascar withIndianheritage,believed to have originally migrated to thecountry someone who hascitizenship instead. but there isalways the riskthatlose hemight patience andemploy tellsjust process.is in it him Heknowswill so hewait, situation her My daughteris working, for bossasksher her cardID her she but can’t leave the job because Iwillbeunemployed. they are paying me low wages because they know I can’t fight and I work here by hookorby crook”. Ithink they have this ideaandso she doesn’thave citizenship andlegal documentssosheneedsto The employer thinks, “shecannot get ajob inany other places since 66 inMadagascar similarly felther that 67 65 - - - acquiring documents but are also often prevented from applying.68 With limited my children’s future access to employment, the lack of nationality prolongs and often exacerbates poverty in the countries studied. As Laxmi from Nepal, who failed to get her beauty parlour training because of her statelessness, highlighted:

I suffer economic hardship. If I had citizenship, I would have a better job. I would be earning more money and be able to help my mother.69 impacts of gendered law nationality impacts on enjoyment of rights This sense of the inability to progress in their lives due to employment problems was reiterated again and again by respondents. Maya, also from Nepal, expressed this hardship further:

It has been difficult. My brother is the only bread-winner now, although I still work. It is difficult to live everyday life (…) When you do a minor job, naturally you get paid less. You can get a decent job when you have your citizenship. That is why I need to obtain my citizenship.70

In addition to not having equal access to livelihood, access to welfare is often restricted or prohibited when one is stateless. Widowed Nepalese women, for andinstance, fathers. are unable to access the widow’s allowance without citizenship; other state benefits such as disability allowance are out of reach for stateless mothers Limitations in access to livelihood are a common reality amongst families affected by gender discriminatory laws around the world. For example, in 2013, Abdulrahmen, a Kuwaiti Bidoon, explained that he could not access a well-paid job and saw no opportunity to improve his situation:

In my job now, I get paid much less than anyone else. If I get married I won’t get any benefits. This is different from a Kuwaiti citizen who, if they marry they get financial benefits for their kids. I can’t go out and solve this situation, to leave, to have my own house, it’s very difficult.71

3.2.2 Land, Property and Inheritance

Owning land or property is deeply important in both Madagascan and Nepalese society, because it often underlies the ability to enjoy an adequate livelihood, par-

68 See Forum for Women, Law and Development (FWLD), Acquisition of Citizenship Certificate in Nepal: Understanding Trends, Barriers and Impacts, February 2014. 69 Equal Rights Trust interview with Laxmi, 19 October 2014, Kathmandu. 70 Equal Rights Trust interview with Maya, 21 October 2014, Kathmandu. 71 Women’s Refugee Commission (WRC) and Tilburg University, Our Motherland, Our Country: Gender 27 Discrimination and Statelessness in the Middle East and North Africa, June 2013, p. 11. 28 EQUAL RIGHTS TRUST 73 72 obstacles dueto hiscitizenshipstatus: be to own your ownwhichland, hehadenough money tohe again do,but faced wouldthat requirenot thepossession of documents. The only way to farm would job asacarpenter, Mahmoudthoughtfarming that would beaviable optionas Madagascar,In whenhaving not proofhis he lost that meant ofhisnationality recurreda themethat in many interviews across the different countries studied. law. Indeed, the worry that new citizens will start to own land and property was featuresalso that element an is debatein around proposedthe draft citizenship – citizenship of acquisition on propertyto right their claim wouldrelationships previousfromchildren that fear the including – citizenship familyobtain the of daughter-in-law. grand-children, where their son was was dead and theapplication madeby their their of citizenship of acquisition the with cooperate to refusing grandparents as thiswouldher toentitle family property.Similarly, there have beencases of resisting their father conveyingto hisnationality theirsister after her divorce, her right to her parent’s property. There have beencases,therefore, ofbrothers erty. For example,under the partitionlaws of Nepal, amarried daughter loses someone else from doing so becomes a weapon to secureprop and maintain prevent to or citizenship conveyto ability the Thus, citizenship. with onymous turalroots. Property laws are so restrictive thatownership is almost seen as syn agricul and patriarchal society’s with entwined deeply is Nepal in citizenship example, For citizenship. to access about debates political in strongly features Furthermore, thequestionofrightto the contextand land disputesof land ity laws, many ofwhom reported theirinabilityto buy landorproperty. who hadbeenleftwithoutdocumentationdueto genderdiscriminatory national those among concern common very a was issue This citizenship. with connected versa. Inbothcountries,theright to own andinheritlandorproperty isstrongly socio-economic statusalsohave animpactontheirclaimto nationality, andvice theydifficulties the context,faceas this owningpropertyin tocastedue their and itance/partition andsoremain landless.Dalitsare particularly disadvantaged in those who have beenunableto accessdocumentationare excluded from inher Nepal, whereas mostfamilies other thanDalitshistorically own their own property, do nothave themoney to buy landdueto theirlackofaccessto In employment. stateless peopleare often impededfrom accessinglandorproperty becausethey ticularly incertainpartsofthecountry. 74

Equal Rights Trust interview withMahmoud, 16January2015,Antananarivo. Shrestha, FWLD, 13February 2015,Kathmandu. Please note refers that“property” to real estate asopposedto alltypesofmovable property. Equal Rights Trust Interviews withShiva 10February Gaunle,Nepalesejournalist, 2015;andSabin the nameofmy that wife, mightbetoo butIworry complicated. citizenshipso there have isnoland.I thoughtunder it about buying overBut and over again, they tell me thatcannotI as there isno I have triedto buylandwhen Icould not beacarpenter anymore. 73 Concern theythat standto losesomething ifother members 72 InMadagascar, stuckinaviciouscycle, 74 - - - - - Jane from Kenya talked about the problems her husband, who was unable to my children’s future obtain nationality from her, experienced as he was unable to buy anything in his name. She explained that at times she believed this created tension between them:

Sometimes I want to buy something with my ID but my husband says that he is the head of this house, he says, “what if you buy property and leave me”, yes we are together but he is not comfortable with the fact that he doesn’t have ID.75 impacts of gendered law nationality impacts on enjoyment of rights We interviewed Layla, a woman from the Karana community. Despite having a Madagascan mother, due to the discrimination the Karana community face in access to nationality, she was stateless and so were her children. A few years ago her husband passed away. She explained that although she could afford it, she was not able to purchase the house in which she lived with her children:

It is not possible for me to buy land or property without nationality, which makes things difficult for us. The land which I live in now is not in my name. I do not even have anyone under whose name I could put the land in, we are all stateless.76

Apparently, discrimination against Karana as a stateless person added to the discrimination she faced as a Karana in exercising her rights. Some stateless persons were able to acquire land through a nominee, but anecdotal narratives suggest that many were scammed later due to the vulnerable dynamics of this situation.

As a direct consequence of the restrictions on property rights, a stateless person may also be unable to inherit anything, whether this is a house, a car or a business. As such, a considerable hurdle to the socio-economic welfare of families in these countries is the pervasive inability of those affected to inherit land of property and who is entitled to inherit family land. Often this means that aand female other national property. who Citizenship has property can be registered at the heart in herof battles name overmust the assume partition the responsibility of owning everything family members may want, yet she does not have the right to leave this to her family when she dies. Layla continued her story by describing the problem of inheritance in her household:

The parents of my deceased husband want to put a house which should have been for him in mine and my children’s names, but this is not possible as I am stateless and so are my children. We are therefore left with nothing. Nothing, even though they want it to be for us and it should be for us.77

As Deepti who had two stateless daughters in Nepal further explained: “If I earn something as property as a mother and I want to give it to my daughter, she

75 Equal Rights Trust with Jane, 29 January 2015, Nairobi. 76 Equal Rights Trust interview with Layla, 23 January 2015, Majungha, Madagascar. 29 77 Ibid. 30 EQUAL RIGHTS TRUST 78 nian motherandstateless father: the report stateless for persons to ownor inheritproperty alsoexistin theMENA region. For example, inability the and laws discriminatory gender around Difficulties family members. family, he was worried the tensionsabout this sometimes caused amongst the Although Danny statedhe hadnodesire that toinherit from tryand hisadoptive the family membersattimes,sincethey didown property: However,their child. adoptedbeing intofamilynew a didcausetension between parentsbiological sowasresultas a missing out not legallyof nolongerbeing viously failed to do. He talked of how he did not have anything to inherit from his bours agreed to adopt him so that he could obtain citizenship, which he had pre the respondents. Danny from Madagascar toldthe ageof18, hisneighat usthat would to beable inheritfrom theadoptive family was discussed by severalof child adopted the that worry the However,aroundrevolving tificates. tensions the childrenhelp tothe documentsthey obtain needed tocer nationality obtain ily. These families were often neighbours or family friends who would agree to the only way to resolve theirproblemwas to beadopted by aMadagascan fam the wider community. InMadagascar, several of the respondents talked of how Matters of inheritance canprovoke tension among family members and with because Iamnotableto passthatlandto my children?” if Iwant to earnmoney andbuy apiece whyof land, for would whom, Ido that, strive to succeedinbuying anythinganythingor putting underhername:“Even havecannot it.” shediscussed, reducedalso This impediment, toher willingness 80 79

Seeabove, note 71,p.20. Equal Rights Trust interview withDanny, 24January2015,Majungha, Madagascar. Equal Rights Trust interview withDeepti,13October 2014,Kathmandu. it. Thelawdoes notprotectit. my father. allowed to own anything.So, this partnerjusttook the car. Justtook not guy,areotherwe the as of name the in officially is it this,show the car was now my father’s.But ofcourse there finished are nopapersto instalments the Once instalments. him pay would father work partner, hisuncle, whoit underhisname.Thenmy bought a carMy dadbought to go to workTo in. formalise thisgot he a nothing else. was to help me because Ihadthe problem of gettingID, andfor parents always made it clear that the only reason for adoptingme particular would speakabouthow thatworried them. My adoptive My adoptive parents realisedchildren Their thatcouldI inherit. in Ourmotherland, OurCountry 79 tellsthe story ofHebawhoJorda hada 80 78 - - - - - 3.2.3 Freedom of Movement, Liberty and Security my children’s future are very often confronted with impediments to their freedom of movement. It isThose often left impossible without to citizenship travel abroad due toor gendereven travel discriminatory freely inside nationality the country laws in which they reside, or their ability to do so is severely restricted. Many stateless persons fear being stopped and potentially arrested when travelling in their own country; this was a prominent theme among respondents and the link between

- of gendered law nationality impacts on enjoyment of rights ments to freedom of movement, discrimination in nationality laws also raises concernstravel and regarding security fearssecurity were and significant. liberty of Therefore,the person. in addition to the impedi

81 The inability to travel affects families in many different ways. First, they are una- bleA lack to visitof citizenship other countries means andthat visitone isfriends unable and to obtainfamily aabroad. passport Such anywhere. visits are very important, as often the father and his family come from abroad. Second, the impossibility of travel obstructs access to overseas employment. This is of particular concern in countries where remittance from migrant workers abroad is an important source of family income.

Kivan from Nepal talked about how he was denied jobs consistently because of he got involved in a band. However, his inability to travel affected his ability to performhis lack ofin citizenship.the band: He decided therefore to focus on playing his guitar and

All my friends have gone to foreign countries. My friends are educated. My band mates all go to foreign countries to do their per- formances. But I haven’t been able to go anywhere as I don’t have my citizenship. That’s why I feel if I could obtain my citizenship, doors of opportunities will be opened. I would feel happy if I had my citizenship.82

In Madagascar, commerce is a key sector of the economy and the majority of trade is carried out between the coastal areas and some of the islands north of Madagascar such as the Comoros or Reunion. Accessing these trade routes, however, is only possible with a passport.83 People often therefore travel illegally, despite this being very risky in view of the potential for being caught and denied re-entry. One respondent from Madagascar talked about how he really needed to travel to the island of Mayotte84 for his business, but could not:

81 With the exception of those situations in which a person is recognised as stateless and issued a stateless person travel document, in accordance with the terms of the 1954 Convention relating to the Status of Stateless Persons (to which none of the countries included in this study were a party at the time of writing). 82 Equal Rights Trust Interview with Kivan, 22 October 2014, Kathmandu. 83 Previously, stateless persons could travel with a “safe-conduct” issued by the Malagasy authorities, but today even the Comoros no longer accept these travel documents. 31 84 An overseas department of France. 32 EQUAL RIGHTS TRUST 86 85 on theirlives: to hisnephew–who was alsostateless –to talkabouttheeffect thishashad fromhiding Worriedauthorities. the respondingabout to itleft he questions, ination inthenationalitylaw andexplained thathehadspentmostofhislife been ableto accessasecure job.He was stateless asaresult ofgenderdiscrim and from Madagascar, hadbeensleepingina mosque for years ashehadnot individualsin hidingthroughout their lives. who Mohammed, was 70shis in The fear ofbeingstopped andpotentially arrested by policehaskept some to jail.Thatisvery worrying.” in Madagascar: “If the police find my daughter without a visa she will go straight pay visa fees to ensureshe that and her daughter had some form of legal status undocumented.is herfear It ofwhatmight toMonana compelled that happen Thisoftenthem. with of identity created fear inmanyfamilies who were left showtheir identitycard, aswellas laws require that everyone to carryproof there were regularpolice checkpoints which at individualswere required to legal without left or anystatus proof ofidentity. Someindividualsexplained that toplace problematicbe also country can anotherinsidea when individualsare As wellas impedinginternational travel, tobeing able move freely from one talked aboutwhy shewishedto travel withherhusband: families were affected by inKenya andMadagascar. AKarana woman inher 60s travel was alsoaproblemrepeatedly discussed manyas oneconsequence that toThe inability goonpilgrimageinSaudiArabiadue to theimpossibilityof 87

Equal Rights Trust interview withMonana, 15January2015,Antananarivo. Madagascar. Equal Rights Trust interview withJacquifrom theKarana community, 23January2015,Majungha, Equal Rights Trust interview withMahmoud,16January 2015, Antananarivo. do notwant to have to dothis. you abroad withoutthe other youdocuments will getinto trouble. I not have citizenship you can buytraveltheyif but documents, catch they will put meinjail. Thishashuge effects onmy work.you If do longertravel abroadI get as,if caught by theFrench authorities, Riskingthe travel can come withgrave consequences knows he isinthis illegally, country livinglike anillegal immigrant, much asheworries someone will ask himfor hisdocuments.(…) He underground, hedoesn’tleave the mosqueorthe surroundingareas My uncle is scared to doanything.He always has been. He lives to go to Mecca. serious andsadthought for both ofusthat we maynever beable do the pilgrimage because Itisavery Icannot get apassport. Also we really want to go onpilgrimage. Icannot go to hajjand At this agedesire ourmain from citizenship isto beableto travel. 86 87 85 ‒ I can I no

- so he hides. He never even dared apply for a job as he felt someone my children’s future would tell on him. This is just his life. He is used to it now.88

- criminationThe fear of being faced stopped at these at checkpoints checkpoints but in Madagascaron some occasions was not the specific nationality to the ofundocumented. members of racial In most or religiouscases citizenship minority offered groups some was questioned security against despite the their dis possessing nationality documents. impacts of gendered law nationality impacts on enjoyment of rights 3.2.4 Education

Preena, the daughter of a Nepalese woman who had been left stateless due to her desire to pursue further studies: discrimination despite her many efforts to obtain citizenship, spoke longingly of Regarding my present condition of statelessness, I will just say that I will not get a chance to study my masters, so I will be deprived of education. I can’t afford to help my family. If I could get a better education I would have better opportunities and could achieve a better life for my family.89

In fact, access to all forms of education is widely reported to be a problem for children who have been unable to secure nationality through their mother. The barriers range from the inability to enrol a child in school, to the inability to sit exams, to problems where college and university fees are often higher for non-cit- can also be problems in receiving diplomas because the educational institution izens, who are moreover not eligible for the scholarships that are available. There demands that the student shows his or her citizen’s identity card to do so. - ing can be a problem even at the elementary level. Recently, children in Nepal, Without citizenship or identification documents, accessing or completing school to enrol in school. Anita had two sons, aged 10 and 14, who had not been able for instance, have increasingly been required to show a birth certificate in order to obtainThe birth school registration has asked certificates for birth registration. as she herself But did I haven’t not have been citizenship: able to provide it. Now I can see there will be more problems and I am so worried. My sons are also worried about me not getting citizenship. It might raise a problem for my children’s further education too. The teachers at school know about my problem but still they keep asking about it. This is a constant worry and I feel I am all alone in this world. I feel particularly worried when I think about my children’s future.90

88 Equal Rights Trust interview with Mohammed, 18 January 2015, Antananarivo. 89 Equal Rights Trust interview with Preena, 24 October 2014, Kathmandu. 33 90 Equal Rights Trust interview with Anita, 27 October 2014, Kathmandu. 34 EQUAL RIGHTS TRUST a scholarship. Applying for a scholarship requires a citizenship certificate. On certificate. citizenship a requires scholarship a for Applying scholarship. a subjects to study, withhigh associated fees,students alsowant such that to earn are taughtthe mostpart, only in private colleges; they are highly soughtafter severalwith along other documents, isrequired to enrol. Technical subjects,for certificate, citizenship a and subjects technical considered are engineering and two broad categories: technical andgeneral.Professions such as medicine, IT The tertiaryeducation. sector education for inNepal, is divided instance, into The obstacles to accessing education continuethroughouthigher all levels of children’s abilityto accesseducation. problems)itance were notconsidered by mothers desperate to ensure their caughtfor fraud,to unable being from accesschild support father the inher and eralrespondents. The possible consequences this couldhavethat (suchasbeing sev by reported approach an was school in enrol and certificate birth a access Fraudulentregistration of children underdifferentnames inorder for themto birth certificate for her: a obtain to unable was she and them Tanzanianabandoned daughter’s father One motherdescribedherdespairingettingdaughter into schoolafter her for theirchildren dueto theabsenceoffathers spoke ofthesame worry. certificates birth get to unable been still had who mothers Kenyan of. spoke a furtherworry andcurrent problem thatmany oftherespondent mothers was This exam. the for eligible not is she certificate, birth a submit not does student the If identification. of form requiresa this as examinations sit to has Even ifachildgetsinto schoolinNepal,there are stillproblems when thechild had they regarding theeducationoftheirchildren: worries the about talked Moshtaq, husband, Her certificates. the on documents for her children astheauthoritiesrefused totheir father’s put name in Indonesia Ana was married toAfghan an refugee,to andhadnotbeenable get 92 91

Equal Rights Trust withSidia,29January 2015, Kibera, Nairobi. Equal Rights Trust interview withAna,13 January2015,Jakarta. My eldest isgoingto enrol inschool.she doesn’t If have abirthcer only thing Icould think to doto make sure to get herinto school. name. Nowents’ my own daughter islegally my sister. Thatwas the had nootherhad done.I choice to but registerunder myher par wasShe onlyachild, butshewaspunished for being whatfather her theproblem to themthey but said they could donothingabout it. explain to tried We papers. no had she as refused they school into her get to tried mother my When schools. better are there region My daughterlives withgrandparents.her thereher sent I theiras in will askwhy there’s nofather’s name. themnormal school.in you If wantto enrol yourschool,kid in they wife wants to home-school our children because we cannot enrol My names. her her,call hurt will schoolmates her,her with tificate 91 92 - - - - the other hand, courses considered to be general subjects, such as bachelors of my children’s future arts, humanities, business and commerce, are taught in public colleges and do not require citizenship. In some cases, courses in government colleges are not aaccessible place and to pay non-citizens, the higher feesblocking in private their institutions. access to certain fields of study and forcing those non-citizens who wish to pursue higher education to compete for Surendra, from Nepal, said he would really like to study IT: impacts of gendered law nationality impacts on enjoyment of rights I am really good at IT, I am working as a hardware and software technician with my neighbour. I didn’t do any research or study. I have just worked by googling, YouTube and being helped by some friends. In order to study I would need to show citizenship. (…) Even to apply for a scholarship I would need to show proof of citizenship.93

The obstacles Surendra faced in accessing the education he craved are not only faced by him, but affect the whole family:

My brother has a problem now. He wants to study engineering, but he can’t, his dream was to be an engineer. But he has left and he tries to study physics now because of his lack of citizenship. He is very good at studying, he was top of high school but right now he can’t study anymore because of his lack of citizenship.94

In Madagascar, the situation is similar when it comes to accessing further studies. -

Non-citizens are required to pay much higher fees to study at university than cit itizens. is a technical Raliya’s mother university was the Madagascan fees are higher but Raliya for me was than not they entitled would tobe inherit for a Mad her- citizenship. She was studying at university in the capital and faced a problem: “As Raliya talked about how her situation affected her hopes and ambitions: agascan. I pay around 60,000 Ariary, where it is only around 16,000 for citizens.” When I finish studying I want to go and work in science. But I want to go to Comoros to work there. I don’t want to stay here because of this situation. And because living here with my mum I have to pay for a visa.95

3.2.5 Healthcare

Another regularly reported problem was a lack of, or poor access to, health- accesscare. Those to health without services. citizenship At the same of the time, country a number are almost of interviewees always required reported to thatpay higherthe stress fees caused for visits by tothe doctors nationality or hospitals problems than they citizens, or their which family can members impede

93 Equal Rights Trust interview with Surendra, 17 October 2014, Kathmandu. 94 Ibid. 35 95 Equal Rights Trust interview with Raliya, 15 January 2015, Antananarivo. 36 EQUAL RIGHTS TRUST 96 but to take herto thehospital: of thefather. Lastyear, Tamarahad beenvery sickandshe wasno choice with left had not succeeded in obtaining a birth certificate for Tamara due to the absence right to to passher nationality her child independently of the father’sshe status, Tamara,called who was 3years old. Despite thelaw reform giving Sandra the dra foundhe had beensecretly outthat married. They hadonedaughter together Sandra was aKenyanwhosenational foreign partnerabandonedher after San it elsewhere: healthcareshe inNepal, said, they were stuckasthey wouldto notbeable access ries she had for her two stateless children. Ifher daughters could notaccess disproportionately citizenship affects families from vulnerable togroups. Deepti in Nepaltalkedthe wor about access in impediments as face persons less This experience again emphasises the multi-layered discrimination most state the discriminationheexperienced inhospitalbecausehewas notacitizen: would have to find a way to cover the costs. Yousef, also from Madagascar, spoke of he fearedand thather healthcare needswould increase andthatwould meanthey Mona’s husbandwas becomingincreasingly worried asnow shewas inher60s cal assistance.Herhusbandexplained theextent ofthechallenge. with nochoice tobut rely oncharitableorganisations when she required medi In Madagascar,from Mona, theKaranacommunity, indicatedshe was that left sure, lackofconcentration anddepression. facedof sleep,highimpacts suchaslack hadconsequential health bloodpres 98 97

Equal Rights Trust interview withDeepti, 13October 2014,Kathmandu. Equal Rights Trust interview withYousef, 24January2015,Majungha, Madagascar. Equal Rights Trust interview withMona,23January2015, Majungha, Madagascar. and apassport. abroad andsaveown her life because shedoesn’thave citizenship to betreated abroad, suppose,my daughter will not beable to go Tomorrow,myone of if daughtersin hospital, isdying she has (...)if anyway. Itwas soexpensive to fixmy nose. with them that Iam not because Icould not show any documents ask me to show any documents,they justjudged me.Ididn’targue as I amdarker, so theyfee. made me pay a higher They didn’teven to thehospital. byJust me they lookingat thought wasI Comorian I once had a serious problem with my nose that I had to fix, so I went the church didnotoffer it. I donotknowotherwise. what would have happenedto hereyes if It was the onlyway.would She never have beenable to get glasses gotShe these glasses from the church when they were offeringhelp. 98 96 97 - - - - - We went to the hospital where they asked for my daughter’s birth my children’s future certificate. I didn’t know how to explain to them the situation of my partner and that my daughter had nothing. So I just told them that my house got burnt and everything inside was destroyed. I had to lie, but this was the only way to get them to attend to my daughter.99

In Kenya, there is a government contributory fund for health cover, the National impacts of gendered law nationality impacts on enjoyment of rights inInsurance the Fund; Fund. she However,had tried topreviously be able to and benefit had fromfailed, it, so one the needs only topossibility show a birth she hadcertificate to make and sure an identityher daughter card. Sandrawas treated was thereforewas to lie. unable to register her child in other countries. For instance, in Jordan, if a family is comprised of just one national,Access to thehealthcare family is has only also entitled been one to one of the fourth most of commonly social security identified entitlements impacts available to other poor families. One woman explained how her children were not entitled to national health insurance as they were stateless. This forced her to take risks she would not have contemplated otherwise, waiting till her children fell seriously ill before paying for expensive private medical care.100

3.3 Personal Well-Being The consequences of not having a nationality extend beyond access to rights. There are also emotional wellbeing consequences, impacts on a person’s sense of identity or belonging, and the guilt, fear, depression and isolation that sometimes stem from this situation.

Hussein’s wife, Sara, had spent her lifetime stateless. Her parents were stateless - shebut herstill mother remained was upset able thatto obtain she was citizenship not a Madagascan through a second national: marriage, “If we receive some nationalitything Sara wasnow, notat the able age to of benefit 62, then from. all I Decadescan do is later, thank as God. Hussein My wife explained, always 101

Severalgets emotional issues repeatedly about it, and surface always from asks, the when research will I data,finally highlighting get nationality?” the emotional and psychological impact that not being able to obtain nationality is having on individuals and families.

3.3.1 Identity and Belonging

Many respondents talked of the strong feelings of belonging to their country. Pat- riotism seemed to increase where individuals and families wanted to assert that

99 Equal Rights Trust interview with Sandra, 29 January 2015, Nairobi. 100 See above, note 71. 37 101 Equal Rights Trust interview with Hussein, 23 January 2015, Majungha, Madagascar. 38 EQUAL RIGHTS TRUST 103 102 zen becauseofhisname: was rejected over andover again andtheauthoritiestold himhewas notaciti Yunis andhissiblingsstruggled for years toMadagascan get nationality, he but them. Saga said: Yunis from Madagascar bothremained patrioticdespite others’perception of ties andthecommunity. Seventeen year-old Saga from Nepaland20year-old who are often considered outsiders by everyonepersons else,includingbothauthori affected for difficult is belonging of feeling a However,maintaining ter Mahmoudfrom Madagascar. proudI ampure of.But Madagascan. Mymother is from Velo”, stated thecarpen factyouthat don’thave makes nationality youyouthat think have to nothing be tem, theauthorities or the person’s ownnever actions,but at thecountry. “The country of the mother. Angerandfrustration were often expressed the sysat Feelings offrustration rarely overshadowstrong feelingsto ofbelonging the about herown identityasNepalese: confidently talked she this, Despite avail. no to years, for citizenship for fought Neha was thedaughtersingle ofa mother who, her mother,with along had Nepalese woman withstateless children, explained: they felt apartof the countryandwanted to belongto the country. As Deepti, a 105 104

Equal Rights Trust interview withSaga, 22 October 2014,Kathmandu. Equal Rights Trust interview withMahmoud, 16January2015,Antananarivo. Equal Rights Trust interview withNeha,14October 2014,Kathmandu. Equal Rights Trust interview withDeepti,13October 2014,Kathmandu. left theirleft legacy. is aplaceIt where we wantto live andbebonded placewhere ancestors,our forefathersour have lived their lives and a is this because us for emotional very very, is it hurts, definitely It Being questionedBeing by the authorities mademesadbecause we feel tellI them my motheris acitizen they but refuse to believe me. like aforeigner when Idon’thave my citizenship. stateless person.Iamlike aforeigner. The police tell me that Iam I have nothing with meeven thoughI amaNepalese. Ihave to bea feel any different than that. thesay,people sayordon’t IamNepalese,am Nepalese I don’t andI lese mother, Ithinkno matter what thesay, paperssayordon’t or or not”.I know But Iambornhere, Iamthe daughter ofmy Nepa you, accept I’ll citizen my are “you say they whether or certificate, doesn’tIt make any difference whether they give the citizenship with, andwant itfor ourchildren, for generations to come by. 104 103 105 102 - - - - - like we are Madagascan. When I came to apply for the ID card and my children’s future they kept questioning whether I was really Madagascan, that made me really sad and ashamed.106

3.3.2 Guilt and Shame

- ship, often feel guilty and ashamed, feeling they have let down their family.

Individuals, most often mothers of children who are unable to obtain citizen of gendered law nationality impacts on enjoyment of rights

Laxmi, a female Nepalese citizen whose son was stateless,107 Many mothersexplained: feel “I itfeel is theirvery lifebad choicesthat I am that unable have toresulted confer in citizenship their children’s to him. suffering I gave him rather birth, than raised blaming him, theand government now I am unable for their to give family’s him the predicament. citizenship.” In Kenya, mothers who had been they had done something wrong by having had a relationship with a non-Kenyan unable to secure citizenship for their children often shared their concerns that foreign partner returned to his country of origin, Ethiopia, and she had no proof man. Lillian had not been able to get a birth certificate for her daughter as her family was not happy with that. Now it is also a problem that my daughter is sufferingas to who from. he was: Maybe “It was I should already not difficult have done enough it.”108 to be with a foreigner as my

At times it is not only that the mother blames herself, but she is also blamed by family members. Those left without a nationality will sometimes blame their parents for leaving them in that situation. Nela from Madagascar, who found it not give him a Madagascan name: very difficult to obtain nationality, asserted his frustration that his parents did Sometimes I blame my parents for giving me this name, maybe it is because they love me, I don’t know. Sometimes I even feel angry and shocked that my parents called me this name. People should know it’s not my fault for this name, my parents gave it to me.109

However, he said that ultimately he did understand why they gave him his name, but he was just angry. He admitted: “I will give my children both Madagascan and Muslim names. Because I am proud of being both.”110

The issue of changing one’s name to obtain nationality in Madagascar can also to get him nationality, Danny was eventually successful when he changed his namebe a heavy from Mohammed emotional burden Ali Tabio on to families. Danny: “I After feel very years sad of and his motherupset that fighting I had

106 Equal Rights Trust interview with Yunis, 24 January 2015, Majungha, Madagascar. 107 Equal Rights Trust interview with Laxmi, 19 October 2014, Kathmandu. 108 Equal Rights Trust interview with Lillian, 29 January 2015, Kibera, Nairobi. 109 Equal Rights Trust interview with Nela, 17 January 2015, Antananarivo. 39 110 Ibid. 40 EQUAL RIGHTS TRUST 112 111 of thecommunity. AsDeepti,anactivist and affected mother, described: feel asthough they are andthis is not helped byfault, at attitude thejudgmental done somethingwrongin order forperson to that stateless be makes victims a memberofthefamily,The belief that mostprobably themother, musthave relationship,illicit had an which is nowthe causeoftheir child’s statelessness. have donesomethingwrong, perceived ashaving driven theirhusbandaway or permeate present day societysingle so that mothers are generally believed to manywhoof those participatedresearch.the in Intrinsicmisogynisticbeliefs the factIn Nepal, of being stateless was, initself,experienced as shamefulby that shedoesn’t have afather.” though my daughter does have herfather.haveI shame that is a It to pretend statelessmakes “It status: mevery sadto have tosingleam I that claim even one ofthefewoptions available to herto ensure herdaughterresolve could her In Madagascar,spoke Monana how about itfeltpretending that to besingle was everyone elsehasthree namesandyou have two namesitwillscar you.” you usually have three names,your name,your surname andyour father’s name.If Tanzanianher emotionally.scarredwith just arehad “They she partner: KenyaIn claiming to beasingle motherdidnotwork. Shetalked abouthertwo sonswhom evenunfortunately but certificate, birth the on husband her of name the include Kisumu inKenya hadnotbeenableto give nationalityto herchildren. Shedidnot from Zahra too. this of ashamed and confused are children many and status, this nationality for her children. However, many women are ashamedofclaiming of her children isunknown isonemethodfor awoman to facilitate obtaining KenyaIn Madagascar,and singlea is she that asserting fatherthe that and mother his behalf: on effortsmany her despite citizenship get to unable been had son Sarita’s ent. weresimilar sentimentsof angerthat Nepal In feeding intowere blame appar my name.That’sthelaw -you mustchangewithit.” changemyto name 114 113

Equal Rights Trust interview withMonana,15January2015, Antananarivo. Equal Rights Trust interview withZahra, 7 February 2015,Kisumu, Kenya. Equal Rights Trust interview withSarita,15October 2014,Kathmandu. Equal Rights Trust interview withDanny, 24January 2015,Majungha, Madagascar. thingcomes in my head:somethingmust bewrong theirin family and the oneperson isstateless, when we are talking, the automatic When three people are standing by and two people have citizenship moments with hisfriends. there isnoplace leftfor meto go also. He musthave hadawkward for me blamed turn theentire problem. Nobodylistensto mewhenevergoI andnow in son my certificate, his get didn’t he After ‒ but having but is morenationality a keepingthan important 114 112 111 113

- line. Something is wrong, someone is a wrong doer, or this person my children’s future is a wrongdoer, so that this person isn’t acceptable in the society. Yes there is a lot of self-blame. So the self-blame is about existing, the existence itself is a shame for the person. So that is the biggest trauma for the person. It is one of the reasons it is still very difficult for the person to openly come up and talk.115

She went on to talk about one of her friends who suffered because he was left stateless, and not only felt ashamed of his status, but also angry: of gendered law nationality impacts on enjoyment of rights

I have one person, I loved him very much as a kid brother, he is a journalist, he has so much rage in him, his girlfriend left him a long time ago because he does not have citizenship. He was not able to reveal the fact to his family and other friends that his girlfriend left because he does not have citizenship. The girl was a smart girl and knew that “if I have a child from a stateless person then my child is also going to be stateless”. So she left and for him his whole existence is going to be one of shame because of his own identity. Had the girl left him because he didn’t have money or a job it is something else. It is about the materialistic thing that can be produced. But about his existence he cannot do anything about it.116

The sense of guilt experienced by mothers over the notion that they have caused the suffering in the lives of their children through their choice of spouse is a sentiment that is shared by women who are affected by similarly discriminatory laws in other parts of the world. Sana, a Jordanian national, married an Egyptian man whose identity card has expired and could not be renewed as he had not satisfiedIf hisI had military known service: that there would be these problems, I would never have married my husband. Why are my children to blame for a mistake I made? I made a choice to marry someone who does not have the same nationality as me. Now my kids can’t access education or healthcare, and my husband really suffers from this problem, emotionally it really affects him. I really regret it sometimes, but I didn’t think that there would be these problems when I wanted to marry.117

3.3.3 Despair application and had been stateless for several years: Siwani, a daughter of a Nepalese mother, had been rejected in her citizenship

115 Equal Rights Trust interview with Deepti, 13 October 2014, Kathmandu. 116 Ibid. 41 117 See above, note 71, p. 19. 42 EQUAL RIGHTS TRUST 120 119 118 about thesadnessshefelt thathersonhadnotobtainednationality: wasband theonly family memberwho couldprovide nationality. Shetalked ex-husher that officials by told was divorcedand was she because nationality a singleSami, mother from pass onher not son aged12andcould had a Nepal, believed thiswas related to thenationalityproblems they faced. Sleeping problems were alsobrought upquite often by respondents, who on theirlives orthelives oftheirfamily members,withtypicalphrases suchas: reflected respondents when expressed commonly was away.Sadness running byeven or more,harder, sacrificing trying by or or working by resolved just be uncovered hopelessness. The problem was experienced asone which could not in manychange, but the situationwill mistic andhopefulthat cases the research victims. Affected persons differ inwhether they feel demoralised orremain opti entirely outside their control. This often ledto asense ofdespair among the and, mostworryingly perhaps, afeeling of hopelessness anythat solutionlied access to citizenship and its consequences included fear, anxiety, insecurity, guilt The negative emotions expressed by interviewees as aresultof of the lack 122 121

Equal Rights Trust interview withSami, 13 October 2014,Kathmandu. Equal Rights Trust interview withTulshi, 27October 2014,Kathmandu. Equal Rights Trust interview withLila,27October 2014,Kathmandu. Equal Rights Trust interview withDeumaya, 27October 2014,Kathmandu. Equal Rights Trust interview withSiwani, 14 October 2014,Kathmandu. three years. busy andthatis how my life isgoingthison, or hasbeensofor two my statusnow. right The next makeI morning alot. myselfdo cry I thinkingabout all the responses that people give me,thinkingabout thinkingnight alotat all the things, do cry I a night. alotat cry I future isgoing where? Idon’tknow. Thatiswhy Iamsoscared. (…) I feel badfor my very my son.If sonhas nocitizenship thenhis thein sometime tillone four.time, or sometimesmorning, tilltwo myhide tearsam often (…) I depressed. Andcan’tI night sleep in I So me? of think son my will how cry to start I if but emotionally, Emotionally when Iconsider that my son hasnoID, Ifeel so bad, izenship wherever Igo. out the supportfrom anyone. talks Everybody about my issueofcit feelI likethisam alone in I whole world, withoutcitizenship, with dren’s future. Sometimes Ijustcan’t sleepalso. myHalf of life isalmost gone now. Nowam worried I aboutmy chil also indarkness. Ifeel it’snotusefultalking about this. Life isdepressing.feelI am all alone but I my daughter’sfuture is 118 121 120 119 122 - - - - - She then talked about her anxiety at the thought that one option to resolve her my children’s future son’s situation would be to send him away from her to live with his father, as there heSometimes would be Iable blame to getmyself. citizenship: Sometimes I feel I want to send him there because he will get citizenship. I told my son: “better you go live with your father, you will get an identity card there”. And my son said, “I don’t want to go, I don’t want to leave you, if I am going 123 there then you are alone mummy so I don’t want to.” of gendered law nationality impacts on enjoyment of rights

Despair is a theme which has also come up in previous data on this issue globally. In 2011, Zeyneb, who could not travel to Canada for her education as she could notSometimes obtain Lebanese I hate myself. citizenship I feel like from I am her not mother, a human said: being. I can’t handle it. My friends can live a natural life. I can’t. My dream to own a car, I can’t have it. Even if I have the money to buy it, it would never be registered in my own name. I dream of getting married, but one man has turned me down because I don’t have a citizenship. I feel like a prisoner. Lebanese papers are worth more than gold, you can pay millions but still not get them. It’s hard for me to see Lebanese girls who have nationality and their papers, especially when they’re not taking advantage of their status as they could – studying, working, fulfilling the dreams I wish I could achieve, but can’t.124

The despair can become very serious, leading to extreme states of hopelessness where, according to Milan, a stateless man in Nepal, “you really feel like your arms have been cut off or your legs have been cut off”.125 Preena from Nepal discussed the extreme emotions she had been going through and how she had struggled to cope. Born to a Nepalese mother and an Indian father, she spoke work to not even having a SIM card in her name. She then went on to talk about howabout this all affectedthe difficulties her emotionally: she faced in being stateless – from not being able to

I have no citizenship and it is changing my psychology, I am not able to think freely about my future (…) I don’t have a single line that I can say yeah I am happy with these things, I am just unsat- isfied, and I am discriminated against from all directions. I am not satisfied with my life and those who are not satisfied with their life can never be happy or think positively about the future.126

123 Ibid. 124 United Nations High Commissioner for Refugees (UNHCR) and Collective for Research and Training on Development – Action (CRTD-A), Regional Dialogue on Gender Equality and Statelessness, 2011. 125 Equal Rights Trust interview with Milan, 13 October 2014, Kathmandu. 43 126 Equal Rights Trust interview with Preena, 24 October 2014, Kathmandu. 44 EQUAL RIGHTS TRUST holds thepotential to transform people’slives. – retroactively benefit to opportunity the also is there where especially and – everywhere. Incontrast, theintroduction of gender neutralrights nationality directly affected is profound. Gendered laws have a devastatingeffect on victims to internationalrightshuman lawstandards, on thosewhothe impact but are It is clear thatnotonly is gender discrimination lawsin nationality contrary She alsotalked abouttheextent to which thisfrustration hadstarted to take over: 127

Ibid . people have hanged themselves, somany people have killed them but you know. Yeah those feelings arise.(…) But you know so many thislife nothing,is just thisin no meaning life won’t andI kill myself Sometimes whengetI frustrated think I that should kill myself,I selves justbecause ofthis. 127

- 4. THE REFORM PROCESS

process that each of the four countries studied is going through. In particular, it exploresGiven the the evident obstacles benefits that of stand reform, in the this way Part of explores legal reform the status in Madagascar of the reform and Nepal, which are both at differing stages in the struggle for gender neutral laws. - canThere be aredrawn many from distinct the reform features process of their in Kenyastruggle, and but Indonesia. also significant Throughout similari this Part,ties in positive the road trends they are and taking. lessons This learnt Part are then highlighted goes on to to reflect help identifyon what wayslessons in which all four countries can continue to move the issue forward.

4.1 The Struggle for Legal Reform: Madagascar and Nepal Among the majority of stakeholders, including many government actors, there is a clear recognition, in both Madagascar and Nepal, that the explicit legislative discrimination against women in nationality rights must be changed. Both countries have witnessed movements for change that often stemmed from the broader willingness to move to more gender equal societies. National and international pressure on the issue has also resulted in a deep discourse on reform between all stakeholders.

(OHCHR)There has and been the significant United Nations work both High within Commissioner civil society for andRefugees government, (UNHCR), with to reformtechnical the support Nationality from theCode Office of Madagascar, of the High althoughCommissioner Madagascar’s for Human civil Rights society movement is comparatively smaller than that of Nepal. UNHCR and FOCUS Development Association (one of the main NGOs working on this issue) began to work on the statelessness issue in 2011, including through lobbying the Min- istry of Justice and the Parliament in particular. Madagascar referred to its ongoing reform process in its second cycle report to the Universal Periodic Review128 which was considered in November 2014. A number of states welcomed the news and urged Madagascar to ensure that the reform took place.129 The two key aims of the reform efforts have been to remove gender discrimination from the Nationality Code and to address the issue of statelessness. The advocacy mes-

128 UN Human Rights Council, Report of the Working Group on the Universal Periodic Review; Madagascar, UN Doc. A/HRC/28/13, 23 December 2014. 45 129 Ibid. 46 EQUAL RIGHTS TRUST 133 132 131 130 a result of thevote to impeachthePresident derailing thatsession. the May 2015 session Assemblyof theNational have but hadto bepostponedas assembly.the national These activities were originally plannedto take place in legalof commissions and gender the of members all forof code benefit ality the advocacy session as wellworkshop)building as acapacity onthedraftnation in partnership withFOCUS,be organising will two activities (a sensitisation and unfavourablean environment.socio-political UNHCR and OHCHR, this light, In of thenumerousolution existingcases ofstatelessness which task – a confronts further. According to FOCUS,formajor challenge a be theres thenewCode will drafthas sofar yethas not the MinistryofJusticeand at stalled circulatedbeen and thenpassedtoAssembly theNational for considerationand adoption.The celebrated, thedraftlaw approvedmust be byministries and thePresident, all obligations withrespect torights. gender equal nationality Before this can be presented, the draft law would bringMadagascar in linewithitsinternational or female) may acquire Madagascan nationality. Ifadopted in theform currently Article 22oftheCode bythe spouseofanythat stipulating Madagascan(i.e. male be stateless, are Madagascan.further removes It genderdiscrimination from childrenthat borninMadagascar to unknownparents, or who wouldotherwise discriminatory rules. mother orfather,whether of marriage,isMadagascan inorout replacing– the it proposes a newArticle9which declares achildborntothat aMadagascan Code. Nationality the to amendments significant proposes the workshop, which were then finalised by the Ministry of Justice. The draft law to discuss this preliminary draft. venedwith key a consultation stakeholders within government andcivil society sation FOCUS, inpartnership withUNHCR, OHCHR and anumberof others, con supported bySeptember theMinistryofJustice.In 2014, the civilsociety organi group work throughout 2013 and 2014 culminated in the establishmentof a working major humanrightsa on Madagascar’s blot landscape. rated, thestatelessness question would never beresolved, which would leave law ertheless, early oninthediscussions on lawreform, was it anydecided that draft than onstatelessness, since this is a particularlyissue. political Nev challenging sages have focused more onthebroaderrights human arguments andequality 134

See above, section2.1.1. member oftheworking group responsible for itsproduction for consideration attheMinistry ofJustice. the ministerial level. Thisanalysis isbasedonadraft dated 23September 2014,which was shared by a The Draft isnotcurrently finalisedorpublicly available. Itcontinuesto besubjectto amendments at merie, thePresident’s OfficeandthePrimeMinister’s Office. Women’s Promotion, theMinistry ofForeign Affairs, theSecretary ofState inCharge ofNationalGendar the Interior Ministry, theMinistryfor PublicSecurity, theMinistryofPopulation, SocialProtection and Amongst others,key ministers ofgovernment present attheconsultationwere theMinistryofJustice, Justice andtheOfficeofHigh Commissionerfor HumanRights (OHCHR). Human Rights Advisor to thePresident oftheNationalAssembly, and representatives oftheMinistry The working group comprised four persons: the Director ofCabinet oftheNationalAssembly, the Association, Focus Development Association,17January2015,Antananarivo. Equal Rights Trust interview withNoro Ravaozanany andMinaRakotoarinsrasata, Focus Development should addressissues. both Theviewwas takenif thetwo that were sepa 131 which was taskeddeveloping with an 134 The draftlaw also proposes to amendArticle11such 132 The avant-projet deloi avant-projetloi – de 130 drew ontheresults of Significant advocacy Significant 133 Of particular note, Ofparticular a drafta law, ------In Nepal, there is a strong civil society movement that has been advocating my children’s future years. This group has come together as the Nepal Civil Society Network of Cit- for law and policy reform with respect to the citizenship framework for many increasingly organising themselves as well, and also joining this network.135 Thereizenship is aRights. strong With youth the movement support of which civil societyregularly groups, organises affected rallies, persons protests are and demonstrations. In addition to awareness raising campaigns and public protests, many of the key informants were engaged in diplomatic advocacy 136 efforts. The media is also increasingly taking up the issue. Within the state the reform process sector too, there are many actors137 who believe the present legal framework is internally inconsistent and non-compliant with international standards and therefore requires reform.138 Certain members of the Constituent Assembly have spoken out in favour of reform of the law.139 The reform remains, however, blocked by the Ministry of Home Affairs, under whose jurisdiction the matter who have aligned themselves against the issue. Unfortunately, this stalemate hasof citizenship resulted in falls, a regressive as well as – byalbeit some gender members neutral of the– proposal Constituent to replace Assembly the “father OR mother” provision of the 2007 Interim Constitution with a “father AND mother” provision. This provision threatens to impose the same high barriers that single female parents face in conferring nationality to their children on single male parents as well. Furthermore, it will undermine the positives of Article 8(2) of the Interim Constitution and of the progressive jurisprudence of the Supreme Court in this regard. It is likely to increase the incidence of statelessness rather than reduce it. both countries. The two countries are at different stages of their struggle, the Despite the emerging consensus, the barriers to reform remain significant in domestic historical and political contexts are different. Yet in assessing the level of civil society engagement differs significantly between them, and the subsections describe in more detail the challenges which Madagascar and Nepal appearobstacles to have to reform, broadly some in common recurring as they themes attempt can to be eradicate identified. their The discrimina following- tory nationality law. These challenges have been loosely categorised under three sub-headings: demographic factors, socio-cultural factors and political factors. In reality, there is much overlap between them all.

135 Equal Rights Trust interview with Sabin Shrestha, Forum for Women, Law and Development (FWLD), 13 February 2015, Kathmandu. 136 Equal Rights Trust interviews with judges of the Kathmandu District Court, 11 February 2015; Madan Dhami, Govt. Attorney, Attorney General’s Department, 12 February 2015; and Phanindra Gautam, Under Secretary, Ministry of Law and Justice, 12 February 2015, Kathmandu. 137 Equal Rights Trust interviews with Constituent Assembly members Hon’ Krishna Bhakta Pokharel, 12 February 2015; Hon’ Kamala Pant, 13 February 2015; and Hon’ Ranju Jha, 13 February 2015, Kathmandu. 138 Equal Rights Trust interviews with judges of the Kathmandu District Court, 11 February 2015; Madan Dhami, Govt. Attorney, Attorney General’s Department, 12 February 2015; and Phanindra Gautam, Under Secretary, Ministry of Law and Justice, 12 February 2015, Kathmandu. 139 Equal Rights Trust Interviews with Constituent Assembly members Hon’ Krishna Bhakta Pokharel, 12 47 February 2015; Hon’ Kamala Pant, 13 February 2015; and Hon’ Ranju Jha, 13 February 2015, Kathmandu. 48 EQUAL RIGHTS TRUST 141 140 in migration andcurrent economicpatterns. combatted by evidence-based advocacy,byincluding analysing historical trends ate thisclaim. India. Whilethispositioniswidely articulated, there isnoresearch to substanti lese citizenship, there will be an increasing number of Nepalese citizens loyal to The fear expressedchildrenif the is that havemen ofIndian accessto Nepa toand Nepal and India themarriagesbetweenNepalese women.men and Indian its sovereignty.Those who this positionrefer hold to theopenborder between demographics ultimately,and, country’s the significantlyon impact detrimental of Home Affairs and supported byhaveit will leaders, is that certainpolitical a the principleargumentIn Nepal, against reform, championed by theMinistry tion ineveryday life. of foreigners commonlyand minority populations facingdiscrimina multiple increase division, withMadagascan society verystill closed off to the integration citizenry.the of members powerfulThis narrative exploitedis tofoster fear and economic position of “Madagascans” aswellas allowing “foreigners” to become community to gain would nationality destabilise thecountryanddamage within thegovernment, manymembers of espouse enabling this the viewthat ality andwho remain stateless therethat are alsovery poor Karana,who donothave access to anothernation KaranaThis sense ofthe having economic supremacy overshadows reality the power.political much too wield will they citizenship, granted also are they if manyand wealthyfearinfluence is that significant it has that and is community of a communitywho areseen stillasoutsiders. The perception of the Karana viewed asaproposal to naturalise theKarana,thereby extending thepower base ity law is not seenasamatter of gender in Madagascar,equality rather but itis economic division of power inMadagascar. The issue of reform of thenational racialquestion beingintertwined withconcerns in relation toand the political hension that ethnic and religious minorities would thereby gain in influence, the a fear of foreigners “infiltrating” Madagascan society. This fear stems from appre demographics-basedA argumentarises in Madagascar, where revolves it around citizenship policy. racist andxenophobic sentiments andultimately fuelthedesire for an exclusive demographicchange to thecountry’s composition. Such concerns strengthen a fear of“theother”,reform that a dramaticbring about will and detrimental of thefactorsOne is theperception impedingchange society, within byfuelled 4.1.1 143 142

Equal Rights Trust interview withMohna Ansari,FWLD, 13October 2015,Kathmandu. Equal Rights Trust interview withShiva 10February Gaunle, Nepalesejournalist, 2015,Kathmandu. Madagascar. Equal Rights Trust interview withSaaeed,LeaderofKarana Community, 22January2015,Majhunga, of theOfficeonUNinMadagascar, 19January 2015,Antananarivo. Association, 17January2015;and OmerKalameu,HumanRights Advisor to theResident Co-ordinator Equal Rights Trust interview withNoro Ravaozanany andMinaRakotoarinsrasata, Focus Development Demographic Considerations 142 Proponents lawof the reform believe this argument that be can 141 . Among thegeneralin themedia public, and 143

140 ------

Demography-based considerations also feature in other situations around the my children’s future policy of excluding certain communities, by prohibiting women from transfer- ringworld their in whichnationality. a gendered An evident nationality example law is is Lebanon, helping governmentswhich has long to hosted fulfil a population.144 Lebanon claims that allowing women to pass on their nationality vast communities of refugees that have become a significant proportion of its country.145 Yet, this claim is clearly undermined by data demonstrating that only awould limited mean number that theof women “Lebanese” marry would foreigners become and minority when considering citizens in their that menown the reform process who marry foreign women can transfer their nationality.

Given that lobbying strong women leaders and female parliamentarians to raise their voices on this issue was one of the integral elements of the successful reform process in Indonesia and Kenya,146 the way that the “demographics argument” is clouding the debate is problematic. Unfortunately, many female parliamentarians and other leaders are still unaware of the issue or do not take it up because of the way in which public attitude against, and counter-arguments to, reform are framed around the state’s demography, sovereignty and security – outweighing the sense of this being a women’s rights issue.

4.1.2 Socio-Cultural Prejudice quo, the reality is that in all instances, the existing framework disadvantages and discriminatesWhile various againstreasons women and justifications and minorities are –given and throughto uphold them, the existingtheir offspring status who are both men and women.

In Madagascar, at both the institutional and public level, the question of gender that, on the whole, people are supportive of removing gender discrimination fromequality the does law. notIn general, present thea significant key barrier barrier is one to ofreform. race discrimination The research indicates and the - munity. Some took the view that the only way in which politicians might be per- suadedpolitically to reformsensitive the issue law wasof the if thererecognition was a shiftof citizenship in public opinionfor the Karanaon that commat- ter. 147 Those involved in the reform process were not optimistic and pointed out, for instance, that even the media is not supportive of reform on the whole. It was clear that even among some of the comparatively sensitised stakeholders stere-

144 This mainly includes some 400,000 Palestinians and currently more than a million Syrian refugees. See

Lebanon”, available at http://www.unhcr.org/pages/49e486676.html; and United Nations Relief and United Nations High Commissioner for Refugees (UNHCR), “2015 UNHCR country operations profile – http://www.unrwa.org/where-we-work/lebanon. Works Agency for Palestine Refugees in the Near East (UNRWA), “Lebanon profile”, available at: 145 - rut, May 2012; and Weatherbee, S., “Lebanese support giving nationality to children of Palestinian fathers”, TheSee AbouDaily Aad,Star, S.G.23 March and Mansour, 2015, available M.W., Women’s at: http://www.dailystar.com.lb/News/Lebanon-News/2015/ Citizenship Rights in Lebanon, American University of Bei Mar-23/291777-lebanese-support-giving-nationality-to-children-of-palestinian-fathers.ashx. 146 See below, section 4.2. 49 147 Equal Rights Trust interview with Saaeed, Journalist at Radio Sky, 4 January 2015, Majungha, Madagascar. 50 EQUAL RIGHTS TRUST 148 support for thecampaignand themediaisincreasingly pickinguptheissue. streaming ofthisdebate,opinion appearsto public beshifting – there iswider wastopic a popular inthemajorityofinterviews. However, dueto themain areunliberatedthus and men rightsas same the with citizens equal as seen not their fatherthat wasit that and hasleft faultthe of theirmother. womenThat are Here astateless person is discriminated against for what statelessness implies: in Nepal,explained how shefelt aboutthisdiscrimination: your husband leaves you”. that beingstateless was like being told, “you’re characterless and thatis why marily becausetheir mother is asingleSami expressed InNepal, parent. the view port behind Statelessthe campaign. people inNepalare looked down uponpri Discrimination against women makes it particularly difficultto rallysup public for reforming thelaw: single Nepalesemother, spokeof support even of the lack from family members led tois thetypeof requiredchange that for legalreform. Neha, the daughter of a opinion isbeingincreasingly challengedwithinNepalesesociety, thishasnotyet of the discriminatory laws and practices described above. Whilethis dominant gets his or her identityfrom their father,thread is the logical unites that many afterwoman marriagea to belongs her husband andhisfamily,child a andthat largesociety at andthestrong socio-culturalbias against women. Theideathat to as gave representatives)what was impedingreform in Nepalwas thedeep-seated patriarchalin attitudes society civil and officials state persons, (affected The in Nepaldiffers.situation The explanation,which interviewees multiple are commonplace. otypes andprejudice towards the Karanaand other racialminority populations 150 149

Equal Rights Trust interview withPreena, 24October 2014,Kathmandu. Equal Rights Trust interview withSami,13October 2014,Kathmandu. Equal Rights Trust interview withNeha,14October 2014, Kathmandu. and only then get my rights? That is my personal life, that is my is that self-respect, anditwilltouch my self-respect. life, personal my is That rights? my get then only and I marry? need my onthe rights basisofmyself, why I shouldIneedto marry should Why marry? I should why again then but ship, aNepalese manthen thereI marry If isaway Iwould get citizen your father?” do you want itfrom your mother’sside, why can’t you take itfrom that there mustbesomethingwrong with the social status: “why – thatThey directly mother should beableto give start it. thinking They don’tfeelstitution. any responsibilitya citizen aboutbeing theabout nothaving provision.feel Theydon’t badaboutthe con bad feel don’t and pity feel don’t they conversations had we When I spoke to the auntsanduncles, their mothers andtheir fathers. 148 149 Preena, who had suffered a lotfrom beingstateless 150 - - - - - Again a societal distrust and stigmatisation of women, minorities, stateless my children’s future groups or foreigners is a common obstacle worldwide in achieving gender equal nationality rights. In Kuwait, for example, there is little public support of the amendment of the current discriminatory law for two main reasons. Firstly, with a wealthy rentier system coupled with a substantial immigrant population, fears that women transferring nationality to their children would open the door - spread hostility against the “Bidoon” stateless group in Kuwait among many of to foreigners joining their citizenry are commonplace. Secondly, there is wide the reform process nationality. The stigmatisation of members of this stateless group,151 some of whomthe citizens. are married Many perceiveto Kuwaiti them nationals, as foreigners is another trying reason to illegally why so obtainmany Kuwaitis Kuwaiti would not want to see gender neutral nationality laws.152

The lack of awareness that the affected populations themselves had of their rights or of what the current legislation states is also a barrier to reform. A vast majority of those interviewed believed that the nationality law of Madagascar, for instance, stated that one could not obtain nationality if one had a foreign name. Of those who had this misconception, some believed that this was a discriminatory clause that needed to be changed whilst others felt that it was the responsibility of parents not to give their children foreign-sounding names.

4.1.3 Political Factors

Due to Madagascar’s political history, it is only in recent years that the National Assembly has had any real power to legislate and stakeholders report that many deputies still do not feel empowered to do so in any meaningful way.153 There are a number of individuals and ministries which are likely to disrupt or potentially bar the passage of legal reform through government. Crucially, a number of sources expressed doubts about the possibility of getting support from the President of the Republic. The position is a political one and not only is the issue of nationality law reform not considered a priority; it is generally viewed as being too politically sen- sitive to be touched.154 Additionally, there are notable gaps in support for reform from other key stakeholders. While these groups may only have a limited ability to impact on legal reform taking place, they would, should such reform occur, have a significant stake in the extent to which it would lead to effective change.

151 Al Shammari, A., “Kuwait Sentences 1,000 Bidoon Children to Illiteracy”, Global Voices, 16 November 2014, available at: https://globalvoicesonline.org/2014/11/16/kuwait-stateless-bidoon-children- barred-from-school/. 152 Refugees International, “Kuwait: Gender Discrimination Creates Statelessness and Endangers Families”, 17 October 2011, available at: - tion-creates-statelessness-and-endangers-families. https://www.refintl.org/policy/field-report/kuwait-gender-discrimina 153 Equal Rights Trust interviews with Juvence Ramsay, Chief of staff of the President of the National Assembly, 19 January 2015; Lova Rajaoarinelina, Advisor to the President of the National Assembly on Human Rights, 19 January 2015; and Lydia Toto, Member of the National Assembly, 24 January 2015, Antananarivo. 154 Association, 17 January 2015, Antananarivo. A number of people took the view that the situation would be improvedEqual Rights if the Trust President interview of the with Republic Noro Ravaozanany had a human and rights Mina advisor Rakotoarinsrasata, on staff (as does Focus the Development President of the 51

National Assembly) to help influence his decisions on matters such as the reform of the nationality law. 52 EQUAL RIGHTS TRUST 156 155 Ministry ofHomeAffairs. lights. improvementan not argument ofthe2007 Constitution, asthe“and/or” high and regression a be will provision citizenship the agreed, finally is constitution tinue indefinitely, with no reform likely, there is also the danger that when a new while ontheonehandthere isafearstalematethe constitutional that con will It appears that the citizenship issue has suffered as a result of this process. Thus, issues, compromising onsome inorder to achieve theirobjectivesothers. with Nepalese politics. Consequently,parties are political more likely to barter with while commendable,does not siteasily withthefractious anddivisive nature of stalemateical drafting continues.Theconstitutional principle of“consensus”, barrier.icant Wellinto theterm ofthesecondAssembly,Constituent thepolit reform The constitutional process has cometoin Nepal beviewed asasignif that would benefittheKarana communityatsuchapolitically uncertaintime. the government was hesitantto introduce the draft lawcode onthenationality yet knownthe timeofwriting. at elections tookmunicipal unclear; on 31Julyplace resultsthe 2015 but are not fragility.landscape andthesupportfor The political the rulingregime remain bly’s vote inMay 2015 to impeachthepresident indicates the state’s political currentcontext socio-political is therefore acomplexassem one. The national The content. its influence and presentation its up speed toexertpressure to be as thecodeofnationality,as important islation their rolethat but would rather it will be difficult for the government to allow parliamentarians to introduce leg ficiently sizable caucus of MPs to vote in favour of such a bill. in similarform to thedraft. Muchwork wouldbe necessary still to achieve asuf ber of deputies who mayto bewilling introduce toa bill reformlaw nationality AssemblyNational through private a There member’sbill. are reportedlynum a need for theapproval ministries of governmentof all is introduced ifit the at necessary to work withparliamentarians.the Legislationcanbepassed without If Madagascar’s draft and sisters hadto pay bribesto getnationality.” research to see that I wasn’t lying about my claim to citizenship. All of my brothers money was paid:“Igave themthemoney asitwas theonly way they would dothe resolvedonce only was it and citizenship, obtaining of process the through go to and otherswithintheadministration. Saaeedtold usthatittook himtwo months Stateless peopleare alsoanapparent “source ofincome”or“business”for judges them, butjudgesstillapply thediscriminatory provisions ofthedomesticlaw. with line in not arelaws national where applied be to supposed areratified been judiciary. As amatter oflaw inMadagascar, international conventions which have For example, reform reportedly, oftheCode isnot, supported onthewhole by the 158 157

The results are expected to beannouncedon15September 2015. Association, 17January2015,Antananarivo. Equal Rights Trust interview withSaaeed,16January2015, Antananarivo. See above, section4.1. Equal Rights Trust interview withNoro Ravaozanany andMinaRakotoarinsrasata, Focus Development 158 It is broadly It believedthe real that barrier to reform inthiscontextis the

law is not adoptedthe government at levelbe thenitwill 157 Sourcesthe government within told usthat 155

156 Somebelieve that ------my children’s future mobile clinics. While there was a perception that this process primarily bene- In 2006, Nepal issued citizenship certificates to 2.6 million people through - fited the children of non-nationals born in the country (citizenship by birth), processin reality, has the been overwhelming tarnished majorityby this perception of persons ofwho undeserving received citizenship “non-Nepalis” cer tificates through this process were recognised as citizens by descent. The 2006 argument discussed above – but this is not a fair representation of what actu- allybeing happened. given citizenship Some respondents for political made gain a – connection which feeds between into the the demographic 2006 pro- the reform process cess and the elections, stating that they had family members who were granted

159 The controversy around this has politicised citizenship through these mass campaigns and who would ordinarily have had- cessdifficulties the campaign acquiring must citizenship. contend with the (perceived) potential for the state to citizenship issues more generally and shows how during the current reform pro utilise citizenship as a political tool. 4.2 Overcoming Barriers to Legal Reform: Indonesia and Kenya The previous section outlined some, but not all, of the obstacles hindering the success of reform campaigns that are taking place in Madagascar and Nepal. This section turns to how Indonesia and Kenya were eventually able to overcome the obstacles they faced, potentially providing some good practice examples for those countries still involved in the reform or which have not yet started it.160

Indonesia and Kenya both reformed their laws relatively recently, i.e. in the last decade. Despite some resistance, the reform was ultimately successful – a result of a variety of factors including transition to democracy, political open-mind- edness and, most importantly, the strong reform campaigns carried out by stakeholders. In Indonesia, this campaign was largely led by women who were in mixed-nationality marriages, whereas in Kenya the leaders of the campaign were more general women’s rights groups who were also lobbying on other issues of gender discrimination. In Indonesia, there were targeted campaigns campaign aimed to achieve broader gender equality within the process of con- stitutionalthat specifically reform. focused Although on amendingobvious contextual the nationality and strategic law, whilst differences in Kenya in the methods of advocating for reform existed, the following sub-sections highlight some of the overlapping trends and techniques that paved the way to success.

159 because politicians need a vote, they want more voters, and so they give (…) They come, election time, “That time near the election, near election time they give all citizenship, my family all have citizenship - view with Sami, 13 October 2014, Kathmandu.) door-to-door. They say ‘give me the votes’ and that time they give citizenship”. (Equal Rights Trust inter 160 For more examples of good practices, see UNHCR, Preventing and reducing statelessness: Good practices in promoting and adopting gender equality in nationality laws, 2014. In making these observations,

above, implementation problems remain in both Indonesia and Kenya. Detailed research of those prob- 53 lemssight wasis not beyond lost of thethe scopefact that of thisreform project. is the first part of a process and that, as indicated in section 2.2.3 54 EQUAL RIGHTS TRUST 161 Newspapers in Indonesia helped thecampaignof the mixed-nationalitymar (IKI). Institute Citizenship Indonesian the as such community nesian-Chinese activists,including affected persons and organisations representing theIndo of the century).This main body was joined by awiderange of stakeholders Campuraninan Indonesia (PERCA) of whom (all hadonly formed after theturn KeluargaPerkawinan Campuran TanganMelalui Perkawand KPC Melati, Ibu NGOs advocating together which included AliansiPelangi(APAB), AntarBangsa even presenting contradicting messages.Indonesia,thereIn wascore a group of or alone battle the fighting organisations and individuals than rather unite, to stepimportant An advocacyin the process was for thevarious stakeholders 4.2.2 for achieving greater genderequalityinthecountry. the requests ofthepeopleto amendthelaws, piggy-backingon themomentum utilised theatmosphereon parliamentarians ofchangeandthecall to listen to voices heard andpushforlaws.in nationality gender equality full The activists the period of the Tahrir Square revolutionactiviststhat wereto able make their countries’ strategies for reforming their law. for example, InEgypt, it was during Choosing an appropriate time has also beenanessentialingredient in other provided apttimingto pushfor reform. environment, coupledwith strong women’s rights actors within civil society, became theagendatotution prevent thecountryreturning to violence. in thecountry. Pushing for an inclusive, progressive andencompassing consti cess washighly a momentousbroughtone and hope ofprogressmuch it with of reforming theConstitutionwas born.Therenewedreview constitutional pro idea the conflict, into fall and developing significant cease would country the that concern caused which violence post-election 2007 the following Kenya, In launch acampaignto remove thegenderbiasfrom thenationalitylaw. advancementson women’s inthinking rights,it wasthat meant good timing to ber, supportive women parliamentarians. These ingredients, alongsidegeneral believedtheythe timeofcampaign at that hadstrong, iflimited innum ing parliamentarians, were becomingmore opento new ideas. It was also howthe 2004 to 2006 period wasera an of“reformation”where people,includ ingredient intheadvocacy work.Indonesia, manyIn key informants spoke of stakeholdersAll interviewed emphasised how timingwas themostessential 4.2.1 key informant interviews. The material presented here is a compilationof information gathered through 162

E.F. andNyers, P. (eds), 2015, Mombassa,Kenya. Albarazi, Z.andVan Waas, L.,“TheTransformations ofNationalityLegislation inNorthAfrica”, inIsin, Equal Rights Trust interview withAlanNyangi, Legal Officer atKituoChaSheriaOffice,3February A United Stance Good Timing Routledge Handbook ofGlobalCitizenship Studies 162 , Routledge, 2014. 161 This ------my children’s future worked at the Jakarta Post and sympathising with the campaigners, she began toriage help groups to promote significantly. the issue A foreignand keep woman it on whothe public married agenda. an Indonesian Radio-appear man- ances were also regularly made by the campaign group. Serikat Buruh Migran Karawang (SBMK), an NGO working on migrant worker rights in Karawang, also took the issue to the public audience by organising a rally and arranging a press conference to push their agenda.

In Kenya, the struggle for gender equality in the Constitution was led by pow- the reform process erful women’s rights organisations such as the Federation of Women Lawyers (FIDA-Kenya), but a variety of other stakeholders, including women’s rights groups from more rural areas, also put their weight behind it. A concerted effort to bring in broad stakeholder support was made, particularly engaging with the media to encourage societal support. In Kenya, every opportunity for radio or asked activists onto programmes in the early hours of the morning, they would stillair time join to talkmake about sure thethey benefits were making of reform the wasmost seized. of every Even chance when of TV increasing stations public awareness.

In other parts of the world, similar campaigns of solidarity had been built leading up to reform. In Morocco campaigners used similar tactics. “Listening cen- tres” were set up in rural areas to compile the stories of affected women and these testimonials became an essential element in the campaign. The stories were used in social media campaigns and radio coverage as well as to produce publications and brochures.163 Given the negative characterisation of the stateless and of the proposed introduction of gender equal nationality rights in many people’s minds in Madagascar and Nepal, strong use of mainstream media could also play a pivotal role in changing the public perception of the issue, where explaining the impacts of this problem can help to engender empathy and support for the reform process.

4.2.3 Targeted Advocacy

In both Indonesia and Kenya, an important step was convincing key parliamentarians on the messages of the campaign and the need for reform. This was partly achieved through the utilisation of any existing relationship between activists and parliamentarians. In Kenya, there is strong engagement between many of the most powerful women’s rights organisations and parliamentarians. as often as possible so the cause would not be forgotten. There were many women’sFIDA-Kenya rights activists explained who how were they also would involved try toin visitpolitics the whichoffices helped of significant to drive MPs the issue forward.

163 UNHCR and Collective for Research and Training on Development – Action (CRTD-A), Regional Dialogue on Gender Equality and Statelessness, 2011. See also examples from the 20 Ans Barakat campaign in Algeria, including a song regarding gender discrimination, available at: http://www.youtube.com/ watch?v=DP3XFOncvCw. The Organisation Centre d’Information et de Documentation sur les Droits de l’Enfant et de la Femme (CIDDEF), also in Algeria, created a substantial number of brochures and 55

leaflets on the issue. 56 EQUAL RIGHTS TRUST general waspublic aware not ofthedifferentdimensions of theproblem,with but unaffected byproblems. substantial Initially, asinMadagascar andNepal,the particular,who were often perceivedwealthy, asbeing largelyand upper class Indonesians married to expatsof Indonesian women– foreign with husbands in did not have any “real”problems. There was asomewhat negative perception of affectinglargea carried by ofthecountryandbeing out population who people The campaign in Indonesia, for instance, was at first seen to be unimportant, not the issueasachildrights issue. the relevantthat stakeholders look beyond justthewomen’s rights issue and see the distractingdiscourse on demographicsand Madagascar inNepal –ensuring tection you have to grantthem theright”. and ofcourse whenpoint youlegislative asa parliamentheard child pro about “our voicethat childrentime cried about that at protection,is ourstrong that cardtrump a intheirrespectivenotedIndonesian campaigner One campaigns. child protection andhumanrights was seen by themajorityof key informants as children’s rights andeven impacted thelives ofmany men.Pushingtheissueof purely awomen’s rights matter,affectedalso as one that but other issues such as Yetthe campaign. wasit alsofound totonot important be the problem paint as this wascountries emphasisedin both that toolimportant an theythat used in are Madagascar andNepal),neither had reservations to Article 9. Activists Forms of Discrimination against Women (CEDAW)the timeof atadvocacy (as holders. Both countries were parties to theConventionof ontheEliminationAll surethey that framed theissue inawaywas that welcoming to different stake Those advocating for reform inIndonesiaandKenya were very aware ofmaking 4.2.4 representatives madeasubstantive difference inachieving theiraims. cooperativea of engagedand relationship between advocates governmentand of relevant protocol anddress code.Theseexamples show how theatmosphere ers, suchasensuringthey were always polite andnever aggressive, andtook note small factorsthat they feltwere toimportant sell theirissueto thedecisionmak emphasised even priority.Campaigners a reform citizenship make helped have but later added the women’s issue to their advocacy. This influence is believed to discrimination, removeethnicity-based to law citizenship the of revision the for also becomeMPs andeven ministers. IKIwas initially concerned withadvocating involvedorganisation, fromcame IKI, various wentand parties political toon of thedecisiononreform. Additionally, mostofthefounders ofanother first invitation to propose the issue to the legislative council, up until the moment Affairs, was alsopivotal. Thisrelationship was seento becriticalright from the Nursyahbani, aformer Minister ofWomen’s Affairs andnow Minister ofSocial government representatives. Astrong partnership between theNGOAPAB and APAB convened seminars onvarious issuesto provide spaceto socialisewith anamitra engaged ininformal meetingswithparliamentarians incafes whilst Indonesian activists usedsimilar methods.Staffatthewomen’s rights NGOKaly 164

Equal Rights Trust interview withJuliani Luthan,PERCA, 13January 2015,Jakarta. Framing theIssue 164 This could alsobeatool to combat - - - - continuous effort from all organisations to demonstrate how this discrimination my children’s future in recognition that women who marry foreigners do also have problems. The prejudiceshad significant of the negative government impacts began on their to dwindle families, when public they opinion saw that slowly Indonesian turned, men married to foreign women could also have negative experiences with the law. The campaigners needed to create empathy and truly convince people that these problems could happen to anyone. One Indonesian stakeholder explained the importance of a well-targeted campaign and that after the campaign’s target is decided, be it rural or urban dwellers, a strong dialogue should be built with the reform process them, which is another strategy that could be adopted in Madagascar and Nepal. This dialogue was important to explain to people, through a story, the kind of impacts on their lives or the lives of their children if they were in the same position. Clear and colourful bulletin-like pamphlets on the issue were also created to assist with this process and simplify the issue for the target audience.

In Kenya too, in campaigning on the nationality issue, there was a move away from the women’s rights discourse and increased attention given to the aspect of the rights of the child. This was a strong angle to take as it steered the debate away from the complexities of adult relationships and the often negative attitudes towards women marrying foreigners. Indeed, the issue was often made appealing to both women and men by focusing on the issue of “family rights”. feel, as Kenyans, if their own grandchildren were born foreign in their coun- tryMessaging because was their also daughters developed had to targetmarried men someone specifically: from how outside would of these Kenya? men165 This built on the idea that as good, patriotic, family-oriented men, they should support the right for their grandchildren to belong to their country. This was perceived as a very strong message that was able to convince many men of the importance of this reform.

Ensuring that good practice examples and case-studies were drawn from the right circle of countries was also important. Drawing comparisons between Indonesia and its ASEAN neighbours and not countries in the Americas, for instance, was deemed important. Similarly, comparing Kenya with other East African countries, which mostly have gender equal nationality laws, was also deemed a successful tactic. Both Indonesia and Kenya can now be seen as cham- pion countries for other countries in their respective regions addressing discriminatory nationality laws.

4.2.5 Researching and Drafting Reform Proposals

It was a shared belief between the campaigns in Indonesia and Kenya that contrib- uting to the discussion of what an alternative law would look like and even partic- a successful discourse. This allowed those lobbying for change to emphasise that theyipating had in doneformulating their research, specific amendments knew what reform to the law would were entail significant and understood in shaping

165 Equal Rights Trust interview with Patricia Nyaundi, Kenyan National Human Rights Commission, 57 13 February 2015, Nairobi. 58 EQUAL RIGHTS TRUST of securitythrough having legal rights. matters such astheirsense ofidentityandempowermentoverall andan sense toemployment education, and services to and their ability travel,to less tangible impacts ontheir lives. These ranged frommatters tangible such as their access positive of number a reported countries both in Beneficiaries problems. tered countries has brought changeontheground for those who previously encoun remain.of implementation lems nationality, who had notpreviously beenentitledto do so, even if some prob The legalreforms in IndonesiaandKenyahave resulted inindividuals acquiring because itisasenseofidentityandwe cangive our identityto our children.” be like, ‘ugh itisnotimportant’. what isthat, Noyou are wrong, itisvery important his father, anddidnotfeel welcome inhis own country: lawfor her, beforeas reformthe would son her as Japanese himself consider just were sohappy, we were soexcited.” reform: happy having thisarticleputinthenewlaw. the We we were cried alot, of sohappy, we heard she when delight her expressed citizenship, Aminah from Indonesia,whose sonwas previously unableto accessIndonesian 4.3 discourse andalsocontributed research which couldinform thediscussions. especially FIDA-Kenya,greatput effort intothey ensuringthat wereof the part a stitution achieved 67% approval from Civilits population. society organisations, government was keen to haveinclusive an process. This paidoff: Con the new indeed, 20 years of floundering attempts to reform the Constitution, the Kenyan in draftingstart Constitution. Followingthe new faileda referendum in2005 and, Kenya,In many differentstakeholders organisationsand were involved from the decision makers aswell asto inform publicdebate. been conducted inNepalandcouldbeutilisedmore targeted advocacy among well-informed andwell-researched position.Asmentioned,similar research has on theissueinorder for herto make sure thatany discussionwas comingfrom a bani invitedAPAB to whenjoin her confrontedshe the government delegation tries which was presented to the legislative council.IndonesianMinister Nursyah reform.APAB, for example, studya out carried lawsnationality the on coun 122 of on theissuesoasto beableto counter any arguments thatmight beraised against Indonesian campaigners would always make sure they haddonegoodresearch helping toernment to inform parliament, thediscussionofreform. Additionally, ment team. Thedraft was attachedto theproposed billandsubmitted by thegov bers wereultimately invited toforward put academic draft an with thegovern law would looklike. InIndonesia,for example, academicsandcivil societymem it easierfor stakeholders, andparticularly parliamentarians, to envision what the what achangedlaw shouldcontain.Advocates believed thatthiswould alsomake 167 166

See above, section4.2. Equal Rights Trust interview withAninah, 13January2015,Jakarta. The ImpactofReform 167 In other words,In in thelawchange the in both

She went onto explain theimportance ofthis

“For other peopleitmight

“We were so 166 ------Previously, in Indonesia, having children with a foreign man meant a heavy bur- my children’s future den on the family in terms of both time and money, which was coupled with the weight of insecurity. This was because if there was to be a change in marital circumstances, the mother could lose her rights to keep her children in Indo- nesia. One of the greatest impacts obtaining nationality had was therefore the ability for children to remain in the country legally without the need for a res- these families. Sandra, from Indonesia, used to have to travel in and out of the countryidency permit every fewor visa. months This to significantly obtain a stay contributed permit for to her a sensedaughter of security before thefor the reform process reform – which she described was a big burden on the family. She talked about how she supported and took the opportunity of reform mainly as it stopped “this hecticness of bringing my daughter outside of Indonesia and coming back”.168

Improved access to employment for these families, which in turn contributed to - tive about. Access to education, particularly public schools, similarly lifted a real burdentheir financial off families stability, who was had alsopreviously an issue either that hadthe respondentsto send their werechildren very to posi private schools – or as was often reported in Kenya – had to produce fraudulent 169 Ernesto, the son of an Indonesian woman and a Spanish man, was over 18 at the time of birth certificates to ensure their children were able to enter school. thatthe 2006 his children reform andhad soacqired unable through to directly their benefit Indonesian himself. mother However, as he as explained: a Spanish citizen married to an Indonesian woman, he was thrilled with the new rights Now I don’t have any problems sending my children to any school. Even the public school if I would like to, they have the Indonesian passports as well to be able to travel for example in Asia as well. Those benefits. (…) at this time have quite an impact, there is a big difference between their era and mine.170

goingFeelings through of confidence, a divorce particularlywhen she was among able theto obtain women nationality when speaking for her aboutchild. Hersupporting husband’s their lawyer families, would also alwaysgrew after question benefiting the nationality from the laws. of her Sandra daughter was become legally an Indonesian. “I think this law empowered women. And it also providedand finally security she was for able them,” to submit she said. paper171 work that proved that her daughter had

168 Equal Rights Trust interview with Sandra, 8 January 2015, Jakarta. 169 Kisumu, Kenya. Equal Rights Trust interview with Richard Olela, Head of Registration, District Office, 6 February 2015, 170 Equal Rights Trust interview with Ernesto, 18 January 2015, Jakarta. 59 171 Equal Rights Trust interview with Sandra, 8 January 2015, Jakarta. 60 EQUAL RIGHTS TRUST 5. CONCLUSIONS AND RECOMMENDATIONS

- der discriminatory nationality laws can have on women and their children. These impactsThe findings can reach highlighted into almost in Part every 3 indicate aspect the of their very lives,significant affecting impacts their thataccess gen to a wide range of rights including healthcare, education and employment. Part 3 laws suffer very real emotional impacts including detrimental effects on their personalalso identifies wellbeing that those and feelingswho are unableof despair. to access In the nationality worst cases as athe result laws of resultthese in statelessness which often leads to families living on the margins of society. the existence of the laws but also weaves the narrative of each affected family. ThoseOur findings most likely show to that suffer discrimination are often the is most a key socio-economically thread which not onlymarginalised explains or members of ethnic or religious minorities. The research from Indonesia and Kenya set out in Part 4 gives some cause for optimism: we heard families who it also gives cause for caution, with research indicating a series of implementa- tionspoke problems of the significant including difference lack of public that awareness reform had and made corruption to their standinglives. However, in the way of effective implementation. Our exploration of the reform efforts in Mada- place in both countries and an ongoing effort is required to ensure this happens. gascar and Nepal also identified that there is some way to go before reform takes

Part offers a set of recommendations to pre and post-reform countries, civil society,Given the these United conclusions Nations High and Commissionerthe findings in thefor Refugeesprevious Parts(UNHCR) of this and report, other this UN agencies. The purpose of these recommendations is to assist the work towards the elimination of gender discrimination in nationality laws and the prevention of the consequent statelessness and further discrimination that these laws create. These recommendations are intended to complement the Global Action Plan to End Statelessness, particularly in achieving Action 3 to remove gender discrimination from nationality laws.172

1. General

Equality and Non-discrimination

All actors should mainstream the principles of equality and non-discrimination in all initiatives aimed at combating gender discriminatory nationality laws and statelessness, with a view to recognising and eliminating discrimi-

61 172 UNHCR, Global Action Plan to End Statelessness – 2014–2024, November 2014. 62 EQUAL RIGHTS TRUST remove genderdiscriminationare urged to take thefollowing steps: The governmentsare ofcountriesthat yetto reformlaws theirnationality to Government encourage reform. efforts canbemadebythat civil society and UNHCR and other UN agencies to yet to reformlaws their nationality to remove discrimination and to highlight The recommendations belowto aim addressin countrieswhich thesituation are 2. support theratification ofthesetreaties andtheremoval ofreservations. tions toCEDAW are urged to retractCivilthem. UN agenciesshould society and of Discrimination against Women (CEDAW). States which have entered reserva are urged tothe Conventionparticular doso,in Formsof All Elimination on the human regional and rights instrumentswhich protect international therights toand non-discrimination equality ratified yet not have that countries Those International Obligations Accession to International Treaties andCompliance with the denialofcitizenship. nation, includingmultiplediscrimination, asbothacauseandconsequenceof d. c. b. a. Pre-Reform Countries Take urgentsteps to provide access to basicrights andservices for those Provide adequate informationtrainingand to relevant all staff to ensure Ensurethe reform that law ofthenationality is enacted retroactive with Reform lawtheir nationality and practice to remove gender discrimina travel education,and healthcare. documents,employment, regardwith ticular to access tosecure a immigrationidentity and status, currently affected bylaw, genderdiscrimination in thenationality in par cedure issimpleandaccessible. pro application related any that ensure and circumstances specified in nationality acquire to mothers citizen to born children allow which law and fairthe full of existingapplication provisions within thenationality through simpleandaccessibleprocedures. nationality through their citizen mothers and to confirm their nationality effect to allow individuals born before thechangein the law to acquire to suffer theconsequencesofdenialcitizenship. continue not do and nationality acquire can mothers citizen of children tion inaccordanceinternational with law, to inparticular ensure that

- - - - Civil Society my children’s future

In order to support the reform of gender discriminatory nationality laws, civil society is urged to:

a. Draw lessons from civil society efforts in countries which have successfully campaigned for reform of the nationality law to remove gender discrimination, continue and expand advocacy efforts to realise equal

nationality rights for women and men. conclusions and recommendations b. Continue to raise awareness on the need for reform through public

involve affected families in such activities. c. Identifyevents, traditional and utilise and further social opportunities media, including to raise by thefinding issue further of gender ways dis to- crimination in nationality law and its impacts in the country in relevant international forums, including by strengthening and expanding collaboration with other organisations working on the issue internationally and engaging with the Global Campaign for Equal Nationality Rights.

UNHCR and Other UN Agencies

UNHCR and other UN agencies are urged to:

a. Work with governments to promote law reform to grant women equal nationality rights and ensure that all children enjoy the right to a nationality, including through providing good practice examples from other countries and highlighting the positive social impacts of nationality reform. b. In collaboration with civil society, provide information and legal advice to persons who are unable to access nationality due to the poor or discriminatory application of existing provisions of the nationality law, and to help those excluded from nationality to access basic rights and services. c. Encourage and support civil society organisations to bring this issue to the attention of relevant international forums.

3. Post-Reform Countries remove gender discrimination is one of several steps that need to be taken to As the findings of this report have highlighted, reforming nationality laws to to be taken to ensure equal access. ensure equal access to citizenship. The following recommendations cover steps Government

Governments that have taken the positive step of reforming their nationality laws to remove gender discrimination are urged to continue to work towards

ensuring equal access to citizenship by: 63 64 EQUAL RIGHTS TRUST implementation ofnationalityrulesthrough thefollowing steps: Civil society cansupportefforts to ensure theeffective andnon-discriminatory Civil Society d. c. b. a. c. b. a. Participatingin information initiatives building sharing and capacity or Establishing expanding legal counsellingand assistance projects to Workinggovernmentwith UN agencies,asrelevant, and to furtherraise Monitoring and assessingof the amended theimplementation nation Identifying opportunitiesto championreform of gender discriminatory Reviewing theprocess of retroactivelawof the nationality application Taking urgent steps to ensurethe reformed that laws are implemented in i. practice, fully andwithoutdiscrimination,including by: Campaign for Equal NationalityRights. cessful advocacy for legalreform, by including engagingthe Global with civilwith society actors in other countries to share goodpractices onsuc the newrules. under nationality claiming problemsencounter who beneficiaries assist including through traditional andsocialmedia. awarenessdisseminate ofand informationrules, nationality onthenew forums. problems to relevant government actors and inrelevant international rules byality theadministrative authorities and thecourts and report vention ontheReduction ofStatelessness. Convention Relatingto of the Status Stateless Persons and the 1961 Con non-reform countries as well asby considering accession to the1954 byin peer-learningonlaw participating reform governments with from regulationsnationality the regionalat internationaland level, including to acquisitionofnationality. ering any deadlines or other proceduralmatters maythat as abarrier act reform to ensureit is accessible andeffective, that by including reconsid iii. ii. riage. complex cases such as withregard to children bornoutside mar in including rules andtheirapplication, the amended nationality well asnationalsofthecountrywho are residing abroad. effortsticular to reach ruraland migrant worker as populations, rules throughoutnationality the general par making population, child’s father. ination basedonthenationality, statelessness or legalof a status in rural andborder areas, apply thelaw fairly and withoutdiscrim Providing adequate information andtraining to relevant all staff on Takingfurther steps to disseminate informationthe amended about including officials, local ensuretothat mechanisms place in Putting ------UNHCR and Other UN Agencies my children’s future

UNHCR and other UN agencies should:

a. Encourage and support relevant government stakeholders to take the necessary steps to ensure that the reformed laws are implemented in practice, fully and without discrimination. b. Work with government and civil society organisations to identify and conclusions and recommendations c. Support legal assistance projects aimed at helping individuals encoun- teringaddress problems knowledge to accessgaps among their beneficiariesrights under theon the new new legislation. nationality rules. d. Encourage and assist governments that have enacted reform to share information and experiences with other governments that have not yet

amended their laws on the benefits of and modalities for reform.

65 66 EQUAL RIGHTS TRUST Bibliography

International and Regional Treaties, Authoritative Interpretations and Guidelines

United Nations Human Rights Treaties

Convention on the Elimination of All forms of Discrimination against Women, G.A. Res. 34/180, 1979. Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), 1965. Convention on the Reduction of Statelessness, 989 U.N.T.S. 175, 1961. Convention on the Rights of the Child, G.A. Res 44/25, 1989. Convention Relating to the Status of Stateless Persons, 360 U.N.T.S. 117, 1954. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 1966. International Covenant on Economic, Social and Political Rights, G.A. Res. 2200A (XXI), 1966. Optional Protocol to the Convention Against Torture and other Cruel, Inhuman, or De- grading Treatment or Punishment, G.A. Res. 57/199, 2002. Optional Protocol to the Convention on the Rights of Persons with Disabilities, G.A. Res 61/106, 2006. Optional Protocol I to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 1966. Optional Protocol I to the International Covenant on Economic Social and Cultural Rights, G.A. Res. 63/117, 2008.

Other International Instruments

Convention on the Nationality of Married Women, 309 U.N.T.S. 65, 1957.

League of Nations, Vol 179, 1930. Hague Convention on Certain Questions Relating to the Conflict of Nationality Law Protocol Relating to a Certain Case of Statelessness League of Nations, No. 4138, 179 LNTS 115, 1930.

67 68 EQUAL RIGHTS TRUST Madagascan NationalityCode,1960. Constitution ofMadagascar, 2010. Madagascar Kenyan CitizenshipandImmigration 2011. Act, Constitution ofKenya, 2010. Kenya Law No.621958. Indonesian CitizenshipLaw, 2006. Indonesia National Law Declaration ofPrinciples onEquality Documents ofBestPractice 2015. Human RightsCouncil atthe 23 Na Rightstionality andtheInstitute onStatelessness and Inclusion, Equal for Campaign Global the Rights, Citizenship of Network Society Civil Nepal Madagascar UN HumanRights Council, Governmental Organisations Special Procedures andOtherReports by International Africa, OAU Doc.CAB/LEG/66.6,2000. Protocol to theAfricanCharterand People’s onHuman Rights ontheRights ofWomen in adopted atthe32ndIslamicConference ofForeign Ministers, 28-30June2005 Covenanton theRights Organisation oftheChild in Islam, Cooperation,of Islamic 2005, African Charter onHumanandPeoples’ Rights, OAU Doc.CAB/LEG/67/3rev.5, 1981. 1990. African Charter of the Rights andWelfare of the Child, OAU Doc. CAB/LEG/24.9/49, Regional Treaties , UNDoc.A/HRC/28/13, 23December2014. Report of the Working Group on the Universal Periodic Review; rd session ofthe Universal Periodic Review: Nepal, , Equal Rights Trust, London, 2008. Joint Submission to the

March - Nepal my children’s future

CitizenshipInterim Constitution Certificate of Procedure Nepal, 2063 Directive, (2007). 2006.

Nepal Citizenship Act 2063 (2006). Treaty Act 2047 (1990). Nepal Citizenship Rules, 2006. bibliography

National Jurisprudence

Nepal

Sabina Damai v Government of Nepal et. al., Writ No. 067-WO-0703 of the year 2067 BS (2010 AD)

Books, Articles, Reports and Studies

Abou Aad, S.G. and Mansour. M.W., Women’s Citizenship Rights in Lebanon, American Uni- versity of Beirut, May 2012.

Africa”, in Isin, E.F. and Nyers, P. (eds), Routledge Handbook of Global Citizenship Studies, Routledge,Albarazi, Z. 2014. and Van Waas, L., “The Transformations of Nationality Legislation in North Australian Indonesian Partnership for Justice, AIPJ Baseline Study on Legal Identity; In- donesia’s Missing Millions, 2014. Equality Now, Ending Sex Discrimination in Nationality and Citizenship Laws, 2014. Forum for Women, Law and Development, Acquisition of Citizenship Certificate in Nepal: Understanding Trends, Barriers and Impacts, February 2014. Manby, B., Citizenship Law in Africa: A Comparative Study, Open Society Foundations, 2010. National Women Commission and Forum for Women, Law and Development , Analysis of Nepalese Citizenship Laws from a Gender Perspective, February 2014. Refugees International, “Kuwait: Gender Discrimination Creates Statelessness and En- dangers Families”, 17 October 2011. United Nations High Commissioner for Refugees and Collective for Research and Train- ing on Development – Action, Regional Dialogue on Gender Equality and Statelessness, 2011. United Nations High Commissioner for Refugees, Background Note on Gender Equality, Nationality Laws and Statelessness, March 2014. United Nations High Commissioner for Refugees, Good Practices Paper – Action 3: Re- moving Gender Discrimination from Nationality Laws, 6 March 2015. 69 70 EQUAL RIGHTS TRUST The DailyStar Weatherbee, S.,“Lebanesesupportgivingto nationality children of Palestinianfathers”, “Indonesia seeing ‘positive’ signs on dual citizenship”, 16 November 2014. Al Shammari,A.,“Kuwait Sentences 1,000 Bidoon Children to Illiteracy”, Newspaper andMagazine Articles Gender DiscriminationandStatelessness inthe Middle East andNorth Africa Women’s Refugee Commission andTilburg University, non profile”, available at:http://www.unrwa.org/where-we-work/lebanon. United Nations Relief andWorks Agencyfor Palestine Refugees “Leba in theNear East, file –Lebanon”, available athttp://www.unhcr.org/pages/49e486676.html. United NationsHigh Commissioner for Refugees, “2015UNHCR country operations pro 2015. Commission: KenyaEquality,on Gender Dialogue andStatelessnessNationality United NationsHigh Commissioner for Refugees, Good practices laws innationality inpromoting andadoptinggender equality United NationsHigh Commissioner for Refugees, , 23March 2015. Preventingand reducing statelessness: UNHCR andtheKenya HumanRights The Jakarta Post Our Motherland, OurCountry: , 24August2014. Global Voices , June2013. , 2014. , 23March - - , Annex 1

List of Stakeholders Interviewed and/or Providing Input for This Report

Kenya Naila Sabani, Muslims for Human Rights Alan Nyangi, Legal Officer at Kituo Cha Sheria Office Director Major Gen. Gordon Kilahangwa, Ministry of Immigration Richard Olela, Head Of Registration, Kisumu District Office Patricia Nyaundi, Kenyan National Human Rights Commission Indonesia Dewi Tjakrawinata, APAB Rita Pranawati, KPAI Masruchah Ketua, Komnas Budi Mahdan Ahdani, Sapa Institute Dadang, Serikat Buruh Migran Karawang

Jeffrey Savage, UNHCR Eddy Setiawan, Institute of Citizenship IKI Anis Hidayah, Migrant Care Prof. Dr. M. Machasin Deputy Minister in Guidance for Islamic Community Prof. Harkristuti Harkrisnowo, Director General for Ministry of Law and Human Rights

Home Affairs GenderProf. Zudan expert Fakrulloh, and ex-parliamentarian, Head of Legal Department Nursyahbani in MinistryKatjasung of- kana Rina Prihatiningsih, KPC Melati Ani Luthan, PERCA Suma Mihardja, Legal Aid Foundation Lilis listyowati Rena Herdiyani, Kalyanamitra Fransiska Ditta, Kalyanamitra Grata Werdaningtyas, Deputy Director for the Rights of Vul- nerable Groups

71 72 EQUAL RIGHTS TRUST Madagascar Shagur, LeaderoftheKarana Community, Majungha Alain Raharison, JusticeetPaix Madagascar Sheikh Omar, Imam,Majungha Raissa, Districtoffice,Majungha Radio Sky,Saeed, Journalist, Majungha Hassan Soufiane,HeadofPolice, Ministryfor PublicSecurity Assembly onHumanRights Lova Rajaoarinelina,Advisor to thePresident of theNational NationalAssemblydent, Mohamed Yanalde,Director of theCabinetVice-Presi istry ofJustice FanjaRajoelison, Advisor to theDirector of Human Rights, Min tional Relations, MinistryofJustice Lucien Rakotoniainie, Director of Human Rights and Interna National Assembly Juvence Ramsay, Directorof thePresident, oftheCabinet and Women the MinistryofPopulation,of Minorities at ProtectionSocial RovaRabetaliana, Harimboahangy Director for the Promotion bly for Fadriana Lydia Marie Toto Raharimalala,Member of Assem theNational dent Co-ordinator oftheOfficeUNinMadagascar (Statelessness), Omer KebiwouHuman Rights Kalameu, Advisor to the Resi Officer Protection UNHCR Regional Regional Representation for SouthernAfrica Sterzi, Anna Noro Ravaozanany, Focus Development Association Mina Rakotoarinsrasata, Focus Development Association - - - - - my children’s future Nepal Cecile Fradot, UNHCR Luma Singh Bishowkarma, UNHCR Sheikh Chand Tara, National Women’s Commission Hasta Bahadur Sunar, Dalit NGO Federation Dipendra Jha, Terai Justice Centre Dev Gurung, Inclusive Forum Nepal Tika-Maya Jirel, Women for Human Rights single women group annexes (WHR) Mohna Ansari, National Human Rights Commission Meera Dhungana, FWLD Subin Mulmi, FWLD Sushma Gautam, FWLD Subin Mulmi, FWLD Hom Lamsal, FWLD Munaslu Gurung, FWLD Sabin Shrestha, FWLD Sami Thapa, Samida Women Development Forum Sumnima Tuladhar, Child Workers in Nepal Concerned Centre (CWIN) Yagya Koirala, Assistant CDO Kathmandu, Ministry of Home Affairs Sunil Khanal, Under Secretary, Ministry of Home Affairs Tulsa Lata Amatya, Community Action Centre Nepal (CAC) Suman Adhikari, Ward Secretary, Kathmandu Municipal Council Two Judges, Kathmandu District Court Phanindra Gautam, Under Secretary, Ministry of Law and Justice Hon’ Kamala Pant, Constituent Assembly Member, Member of Constitution Drafting Committee Umesh Shrestha, Blue Diamond Society Madan Dhami, Govt. Attorney, Attorney General’s Department

Rights Hon’Members Ranju of Jha, the Constituent Nepal Civil Assembly Society Member, Network Chair of Citizenship of the Par- liamentary Committee on Women, Children and Social Welfare Shiva Gaunle, Former President of Federation of Nepal Journalists

73 74 EQUAL RIGHTS TRUST Annex 2

International Standards Relating to Gender Equality in the Transmission of Nationality from Parent to Child

Convention on the Article 9 9.1. States Parties shall grant women equal Elimination of All rights with men to acquire, change or Forms of Discrim- retain their nationality. They shall ensure ination against in particular that neither marriage to an Women (CEDAW) alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. 9.2. States Parties shall grant women equal rights with men with respect to the nationality of their children. Convention on the Article 7 7.1. The child shall be registered imme- Rights of the Child diately after birth and shall have the (CRC) right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. 7.2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant inter-

particular where the child would oth- erwisenational be instruments stateless. in this field, in Article 2.1 2.1. States Parties shall respect and ensure the rights set forth in the present Con- vention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 75 76 EQUAL RIGHTS TRUST (ICERD) Discrimination Forms ofRacial Elimination ofAll Convention onthe (ICCPR) Political Rights enant onCivil and International Cov - Article 5 Article 26 Article 24 5. 26. 24.3. 24.2. 24.1. (iii) Theright to nationality […]

before the law, notably intheenjoy or ethnicorigin,tonational equality as todistinction out race, colour,or guarantee theright of everyone, with its formsdiscrimination in all andto take to prohibit andto eliminate racial this Convention, States Parties under obligationsdown laid in article2of fundamental the with compliance In ment ofthefollowing rights:

property, birthorotherstatus. or opinion, national social origin, religion,language, or other political any ground suchasrace, colour, sex, protection againstdiscrimination on tee topersons and effectiveequal all hibit any discrimination and guaran law.this respect, In thelawproshall ination toprotection theequal of the and are without any entitled discrim persons areAll before equal thelaw nationality. Every child has the right to acquire a name. diately afterhave birth andshall a Every be registeredchild shall imme State. the partof his family, society and the required byminor,as a hisstatus on such measures of protection asare origin, propertyor birth,theright to religion,language, orsocial national discrimination toas race,colour, sex, Every have,child shall any without ------my children’s future Organisation of Article 7 7.1. A child shall, from birth, have right Islamic Coopera- to a good name, to be registered with tion’s Covenant on authorities concerned, to have his the Rights of the nationality determined and to know Child in Islam his./her parents, all his/her relatives and foster mother 7.2. State parties to the Covenant shall safe- guard the elements of the child’s identity, including his/her name, national- annexes ity and family relations in accordance with their domestic laws and shall make every effort to resolve the issue of statelessness for any child born on their territories or to any of their citi-

African Charter Article 6 6.1. Every child shall have the right from on the Rights and hiszens birth outside to a thename. territory. Welfare of the 6.2. Every child shall be registered imme- Child diately after birth. 6.3. Every child has the right to acquire a nationality Protocol to the Article 6 6.g. a woman shall have the right to retain African Charter on her nationality or to acquire the Human and Peo- nationality of her husband; ples’ Rights on the 6.h. a woman and a man shall have equal Rights of Women rights, with respect to the nationality in Africa of their children except where this is contrary to a provision in national legislation or is contrary to national security interests;

77 The Equal Rights Trust is an independent international organisation whose purpose is to combat discrimination and advance equality worldwide. The Trust promotes a unified human rights framework on equality, focusing on the complex relationships between different types of disadvantage and developing strategies for translating the principles of equality into practice.

“I am all alone but I feel my daughter’s future is also in darkness,” said Deu- maya from Kathmandu. She may feel alone, but she is one of many mothers throughout 27 countries around the world who cannot pass their nationality to their children. Instead, Deumaya must watch despairingly as her daughter remains on the fringes of society – facing a future without nationality, employment or basic freedoms. For the sake of her daughter, she wants change.

This change may come. The movement towards the reform of gender discriminatory nationality laws is growing – through organised grassroots movements and the Global Campaign for Equal Nationality Rights. The number of countries reforming these laws is increasing. Their experiences provide useful lessons.

This report aims to increase the research base and act as an advocacy tool. It argues that reform can and must be achieved. The report identifies the impact of discriminatory nationality laws on the lives of women and their children in Madagascar and Nepal; barriers to law reform in Madagascar and Nepal; and key tools which overcame reform barriers in Indonesia and Kenya. It makes recommendations for key stakeholders in the reform of Malagasy and Nepali law.

This report was funded by a grant from the United States Department of State. The opinions, findings and conclusions stated herein are those of the Equal Rights rustT and do not necessarily reflect those of the United States Department of State.

For a technical appendix, see www.equalrightstrust.orgwww.equalrightstrust.org