Citizenship Law in Africa A Comparative Study By Bronwen Manby Published by African Minds on behalf of Open Society Foundations 224 West 57th Street New York, NY 10019 www.opensocietyfoundations.org African Minds 4 Eccleston Place, Somerset West, 7130, Cape Town, South Africa [email protected] www.africanminds.org.za 2016 All contents of this document, unless specified otherwise, are licensed under a Creative Commons Attribution Non-Commercial 4.0 International Licence ISBNs 978-1-928331-08-7 Print 978-1-928331-12-4 e-Book 978-1-928331-13-1 e-Pub Copies of this book are available for free download at www.africanminds.org.za ORDERS To order printed copies from Africa, please contact: African Minds Email: [email protected] To order printed copies from outside Africa, please contact: African Books Collective PO Box 721, Oxford OX1 9EN, UK Email: [email protected] Contents Preface to the third edition v Disclaimer vii Abbreviations viii Definitions ix Summary and recommendations 1 The right to a nationality in African laws 4 Racial, ethnic and religious discrimination 5 Gender discrimination 6 Naturalisation 7 Dual nationality 9 Loss, deprivation and arbitrary non-recognition 9 International norms 11 Recommendations 13 International norms on nationality 21 The right to a nationality and prohibition of statelessness 21 Nationality in the context of state succession 29 Deprivation or non-recognition of nationality and expulsion from a territory 30 The jurisprudence of the African human rights bodies 33 African states’ accession to international treaties 36 Nationality under colonial rule and the transition to independence 38 The basis of nationality law today 43 The right to a nationality in national law 45 Nationality based on birth in the territory 47 Children of stateless parents or who would otherwise be stateless 49 Foundlings or children of unknown parents 49 Nationality based on descent 53 Adopted children 57 Racial and ethnic discrimination 60 iii CITIZENSHIP LAW IN AFRICA Gender discrimination 63 Nationality of children 63 Nationality based on marriage 65 Partial reforms on gender equality in North Africa 70 Dual nationality 73 Naturalisation 80 Nationality requirements for public office 97 Dual nationality 97 Naturalised persons 98 Rights for the African diaspora 101 Ethiopia 101 Ghana 101 Loss and deprivation of nationality 103 Renunciation and reacquisition 112 Evidence and documentation 116 Birth registration and evidence of entitlement to nationality 116 Proof of nationality 118 The right to a passport 121 State successions since independence 125 Separation of part of a territory 125 Transfers of territory 126 Naturalisation as a “durable solution” for refugees 128 Appendix: Legal sources 134 List of tables Table 1: Right to nationality based on birth in the territory 50 Table 2: Right to nationality based on descent 54 Table 3: Right to nationality for adopted children 58 Table 4: Right to transmit nationality to a spouse 66 Table 5: Countries permitting and prohibiting dual nationality for adults 77 Table 6: Right to acquire nationality by naturalisation 86 Table 7: Criteria for loss of nationality 109 Table 8: Renunciation and reacquisition 113 iv Preface to the third edition This is the third edition of this book, originally published in 2009 and written while I was an employee of Open Society Foundations (OSF). The second edition of 2010 included updates on several countries and some minor corrections. This third edition is a comprehensive revision of the original text, updated to reflect developments at national and continental levels, to clarify some interpretations based on my increased understanding of the issues, and to present completely revised and improved tables based on comparative analysis of the nationality laws of 54 countries in Africa, as well as additional tables dealing with new aspects of the law. The appendix contains the updated list of laws in force as of 2015 used to compile this study. Among the countries that have adopted revisions to their nationality laws of greater or lesser significance since 2009/10 are Côte d’Ivoire, Kenya, Libya, Mali, Mauritania, Namibia, Niger, Senegal, Seychelles, South Africa, Sudan, Tunisia and Zimbabwe. Perhaps the most significant other developments with impacts on nationality law and the right to a nationality are the secession of South Sudan from Sudan, and the impact of South Sudan’s new nationality on both countries, and the transfer of sovereignty of the Bakassi peninsula from Nigeria to Cameroon. There have also been major developments in standard-setting at the African and international levels. The African Commission on Human and Peoples’ Rights adopted two resolutions and a study on the right to nationality in Africa, leading up to the adoption in July 2015 of a draft Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa. The African Committee of Experts on the Rights and Welfare of the Child handed down an important decision on the nationality of children of Nubian origin in Kenya in 2011, which informed a General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child (name, birth registration and a nationality) adopted by the Committee in 2014. The UN High Commissioner for Refugees (UNHCR) has also adopted a number of guidelines and other documents on statelessness and in 2014 launched a major campaign to end statelessness within 10 years. In Africa, UNHCR’s regional office in Dakar has collaborated with the Economic Community of West African States (ECOWAS), leading to the adoption in 2015 of a regional declaration on the urgency of addressing statelessness. v CITIZENSHIP LAW IN AFRICA The first edition of this book was published at the same time as my Struggles for Citizenship in Africa (Zed Books, 2009), which gathered case studies of the practice of statelessness and citizenship discrimination in Botswana, Côte d’Ivoire, Democratic Republic of Congo, Ethiopia, Kenya, Mauritania, Nigeria, Sierra Leone, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe and elsewhere. This text draws on the information in Struggles for Citizenship in Africa, as well as on several subsequent publications, including Statelessness in Southern Africa, a briefing paper for a UNHCR Regional Conference on Statelessness in Southern Africa in November 2011, and Nationality, Migration and Statelessness in West Africa, UNHCR and IOM, 2015. The tables and information in the first edition of the report were also updated for use by the African Commission on Human and Peoples’ Rights in its study on The Right to Nationality in Africa adopted in May 2014. The genesis of this report lay in information collected as part of a 14-country “Africa citizenship audit” initiated by Chidi Odinkalu and Julia Harrington of the Open Society Justice Initiative working with the Africa foundations in the Open Society Foundations network. Information on this survey and its participants is available at the website of the Open Society Justice Initiative.1 A group of nationality experts and advocates met in London on 20 February 2009 to discuss the recommendations for this report. Those who attended the meeting were: Adrian Berry, Chaloka Beyani, Brad Blitz, Deirdre Clancy, Jim Goldston, René de Groot, Julia Harrington, Adam Hussein, Khoti Kamanga, Ibrahima Kane, Mark Manly, Dismas Nkunda, Chidi Odinkalu, Louise Olivier, Gaye Sowe, Souleymane Sagna, Ozias Tungwarara and Patrick Weil. Abdelsalam Hassan Abdelsalam, Jorunn Brandvoll, Laurie Fransman, Susin Park, Santhosh Persaud and Laura van Waas also provided input on the recommendations. While most of the rest of the book has been revised since 2009, the recommendations remain unchanged. Thanks to all my colleagues at the Open Society Foundations for their support and guidance over many years of working on these issues. Bronwen Manby January 2016 1 https://www.opensocietyfoundations.org/publications/africa-discrimination-and-citizenship-audit-report vi Disclaimer While every effort has been made to ensure that the tables and descriptions of the laws in African countries are accurate and up to date, very complex provisions have been simplified. Readers should not treat them as definitive nor accord them the status of legal advice. Many provisions are subject to interpretation, and difficult to represent in tabular form. In this edition, the laws and tables are updated to the end of December 2015. In the tables, the final column referencing the legal source gives the original date of the law currently in force, with the date of the latest amendment in brackets. vii Abbreviations ACHPR African Charter on Human and Peoples’ Rights ACRWC African Charter on the Rights and Welfare of the Child AHRLR African Human Rights Law Reports AU African Union CAR Central African Republic Convention on the Elimination of All Forms of Discrimination CEDAW Against Women International Convention on the Elimination of Racial CERD Discrimination CRC Convention on the Rights of the Child DRC Democratic Republic of Congo EAC East African Community ECOWAS Economic Community of West African States ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ILC International Law Commission IOM International Organisation for Migration OAU Organisation of African Unity SADC Southern African Development Community SADR Sahrawi Arab Democratic Republic STP São Tomé and Príncipe UK United