CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY DECEMBER 2020 Bronwen Manby CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Disclaimer This report may be quoted, cited, uploaded to other websites and copied, provided that the source is acknowledged. The views expressed here are those of the author and do not necessarily reflect the official position of UNHCR. All names have been changed for the personal stories in boxes. Map of the 16 SADC Member States © UNHCR 2020 i UNHCR / December, 2020 CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Contents Disclaimer i Map of the 16 SADC Member States i Methodology and acknowledgments vi A note on terminology viii Summary 1 Extent of statelessness 1 Causes of statelessness 1 Groups at risk of statelessness 2 The impact of statelessness 2 International and African standards 3 Protection against statelessness in the legal frameworks of SADC states 3 Due process and transparency 4 Lack of access to naturalisation 5 Civil registration and identification 5 Regional cooperation and efforts to reduce statelessness 6 Overview of the report 7 Key recommendations 8 The history of nationality law in southern Africa 10 Migration and nationality since the colonial era 10 Transition to independence and initial frameworks of law 12 Post-independence trends 15 Comparative analysis of nationality legislation 17 Constitutional and legislative protection for the right to a nationality 18 Nationality based on birth in the country 18 Jus soli, double jus soli, and birth + residence 18 Foundlings: children of unknown parents 21 Children of stateless parents or who would otherwise be stateless 23 Nationality transmitted by parents 26 ii UNHCR / December, 2020 CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Children born in the country 26 Children born outside the country 28 Adopted children 32 Right to transmit nationality to a spouse 34 Dual nationality 37 Acquisition of nationality by naturalisation or registration 40 Loss, deprivation, renunciation, and reacquisition of nationality 48 Loss and deprivation of nationality attributed at birth 48 Loss and deprivation of nationality acquired by naturalisation 50 Protection against statelessness 51 Renunciation of nationality 54 Reacquisition 54 Nationality administration in practice 57 Birth registration 59 Consular registration 67 National identity cards 70 Passports 73 Naturalisation 74 Naturalisation of long-term migrants and their descendants 77 Naturalisation or recovery of nationality by long-term refugees and their descendants 77 Economic citizenship’ in Comoros 79 Proof of nationality 80 Judicial and other oversight of administrative decisions 81 Groups at risk of statelessness 84 Foundlings, orphans, and other vulnerable children 86 People of mixed parentage or dual nationality 87 Border populations 89 Descendants of pre-independence migrants 90 Children of more recent migrants 92 Internally displaced persons (IDPs) 95 Refugees, former refugees and returnees 96 Impacts of statelessness 101 iii UNHCR / December, 2020 CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 International and African law 103 The right to a nationality in international law 103 Nationality on Succession of States 105 Loss and deprivation of nationality 106 Naturalisation 107 The right to a nationality in the African human rights regime 108 The African Charter on Human and Peoples’ Rights and the jurisprudence of the African Commission 108 African Charter on the Rights and Welfare of the Child and the jurisprudence of the African Committee of Experts 110 The African Court on Human and Peoples’ Rights 111 Birth registration and legal identity 112 Regional standards and initiatives 113 The Southern African Development Community 113 The International Conference of the Great Lakes Region (ICGLR) 115 Pledges by SADC Member States to Address Statelessness 116 Recommendations 117 Accessions to and implementation of UN and AU treaties 117 SADC institutional support for inter-state cooperation and common norms 117 Law reform 118 Nationality administration 119 Identification of populations at risk of statelessness, and prevention and reduction of statelessness 119 An integrated approach to nationality systems 120 Appendix 1: Nationality laws in force 121 Appendix 2: Status of UN treaties 122 Treaties relating to statelessness 122 Treaties with provisions on the right to a nationality 123 Appendix 3: Status of AU treaties 124 Appendix 4: Select bibliography 125 iv UNHCR / December, 2020 CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 List of Tables Table 1: The right to nationality for children born in the country 25 Table 2: Nationality transmitted by parents 31 Table 3: Adopted children 33 Table 4: Transmission of nationality to spouses 36 Table 5: Dual nationality 39 Table 6: Naturalisation or registration/declaration 43 Table 7: Loss or deprivation of citizenship 53 Table 8: Renunciation and reacquisition 55 Table 9: Birth registration rates in SADC states 67 Table 10: Rate of enrolment in national ID systems in SADC states 73 v UNHCR / December, 2020 CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Methodology and acknowledgments This report was written through desk research and the author’s previous experience of researching access to citizenship in the southern Africa region. It analyses the laws in force in the member states of the Southern Africa Development Community (as listed in appendix 1), as well as implementing regulations where available, and other official policy statements. Among the sources are the Briefing paper for UNHCR Regional Conference on Statelessness in Southern Africa, held in Mbombela, South Africa 1-3 November 2011, prepared by the same author. The updated report draws on publications of intergovernmental agencies, as well as government and constitutionally established bodies at national level, including court decisions, and reports by non-governmental organisations. The regional and national offices of UNHCR supplied important information and commentary. The draft report was shared with the government focal points on statelessness in each country, with the assistance of the relevant UNHCR office, for their comment and feedback. This report is proposed as the foundation for further study of the risks of statelessness in each country, based on research in the field. The report aims to be up to date until the end of August 2020 (with the addition of references to the important report of the Zimbabwe Human Rights Commission on access to identity documents, released on 30 September 2020). The tables comparing provisions of national citizenship laws included throughout the report inevitably involve some simplification of complex provisions, and neither these nor the text describing them should be relied upon for a definitive interpretation of the law. Those wishing to understand particular provisions should rather refer to the original texts and seek legal advice in the country concerned. The views expressed and any errors and omissions are those of the author, and do not necessarily reflect the official view of UNHCR. This report may be quoted, cited, and uploaded to other websites, provided that the source is acknowledged. Thanks for comments and contributions are due to: UNHCR . Emmanuelle Mitte (regional focal point on statelessness for Southern Africa); . Benedicte Voos (regional focal point on statelessness for East and Horn of Africa) . John Mnaku Bonaventura Mhozya (Tanzania) . Aba Opoku-Mensah (Tanzania) . Berhane Taklu-Nagga (Malawi) . Bianca Robertson (Lesotho) . Marla Hamene (Mozambique) . Kamanda Deo Bitakuya (DRC) . Alessandro Telo (Data, Identity Management and Analysis Coordinator for Southern Africa) Government and civil society . Angola: Michael Offermann, consultant to UNHCR . Angola and Mozambique: Patrícia Mendes Jerónimo Vink, Universidade de Minho . DRC: Jean Raphael Liema Imenga, Directeur de la Chancellerie et Garde des Sceaux, Ministère de la Justice . Lesotho: Commissioner Mohlolo Felix Lerotholi, Commissioner for Refugees, Kingdom of Lesotho . Madagascar: Noro Ravaozanany and Olivia Rajerison, Focus Development Association vi UNHCR / December, 2020 CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 . Malawi: Ms. Ivy Mpina, Legal Officer, Department of Refugees . Mozambique: Cremildo Abreu, Director of the National Institute for Refugee Assistance (INAR) . South Africa: Liesl Muller, Lawyers for Human Rights, and Kaajal Ramjathan-Keogh, Southern Africa Litigation Centre . Tanzania: Janemary Ruhundwa, Dignity Kwanza . Zimbabwe: Tafadzwa Ralph Mugabe, legal counsel vii UNHCR / December, 2020 CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 A note on terminology “Nationality”, “citizenship”, and “stateless person” In international law, nationality and citizenship are now used as synonyms, to describe a particular legal relationship between the state and the individual; the terms can be used interchangeably in English, though “nationality” is more commonly used in international treaties. Neither term has any connotation of ethnic or racial content but is simply the status