A Comparative Analysis Of Nationality Law in Africa

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A Comparative Analysis Of Nationality Law in Africa

Citizenship  laws in Africa leave many millions of people at risk of statelessness. It is impossible to put an accurate figure on the numbers affected, but stateless persons are among the continent’s most vulnerable populations: they can neither vote nor stand for office; they cannot enrol their children in school beyond primary school, travel freely, or own property; they cannot work for the government; and they are exposed to human rights abuses and extortion. Statelessness exacerbates and underlies intercommunal, interethnic and interracial tensions in many regions of the continent.

This comparative study provides a comprehensive analysis of the provisions of the citizenship laws of all 54 African states, identifying those that are not in compliance with international law and therefore leave many without a recognised nationality. While administrative practice may mean that stateless people exist even in a country with good laws, bad laws guarantee that statelessness will result.

Few African countries provide for an explicit right to a nationality in their constitutions and other legislation, even for children born on their territory who would otherwise be stateless—even though this provision is required by the African Charter on the Rights and Welfare of the Child, to which almost all African states are parties. Perhaps more importantly than this absence of a statement of principle, citizenship laws too often do not include the measures that in practice protect against statelessness.

The factors that are the main contributors to statelessness in Africa are:

 

  • Gender discrimination: Although there is a strong trend to remove gender discrimination in nationality law, the laws of almost half of Africa’s states still discriminate against women in the right to transmit their nationality either to their foreign spouses and/or to their children if the father is not a
  • Racial, ethnic or religious discrimination: The laws of around ten states explicitly discriminate on grounds related to race, ethnicity or Racial and ethnic discrimination in the law leaves those who are not perceived to be of the “right” racial or ethnic group at risk of statelessness, especially where combined with discrimination on the basis of sex and the father is from another group.
  • Nomadic and cross-border populations: Africa has many millions of people following a nomadic lifestyle, whose traditional grazing grounds for livestock or other places of residence may lie in two or more There are also many ethnic and other communities whose cultural,

 

 

 

linguistic, religious or other ties, including pre-colonial political histories, lie on both sides of a contemporary border. African states’ nationality laws, policies and administration are often ill-adapted to take account of these realities.

  • Dual nationality rules: The majority of African states now permit dual nationality in all However, rules on dual nationality are easily misunderstood or misinterpreted, especially for persons who potentially have two nationalities from birth. They have often been used to deny children born to one non-citizen parent the right to nationality in the country of their birth, even when in principle the child is eligible for that nationality.
  • Weak rights based on birth in the territory: Although the nationality laws in more than half of the continent’s states provide at least some rights based on birth in the territory for children of non-citizen parents, the remainder have very weak protections against statelessness, in some cases not even providing nationality for infants found in the territory whose parents are not Countries where there are very limited rights based on birth in the territory typically have large populations of people who are stateless.
  • Lack of access to naturalisation: Another cause of statelessness is the failure by many states to provide effective access to naturalisation If a parent cannot naturalise, and the state also provides no rights based on birth in that territory, a child born to non-citizen parents is at high risk of statelessness, especially where the state of origin provides no effective consular services and especially if the parents are refugees—a risk that increases with each generation.
  • Provisions on state succession: Many countries in Africa face continuing problems related to poor management of attribution and documentation of nationality in the transition from colonial rule to State successions since independence have also failed to provide legal and administrative safeguards for the nationality of those who live in a territory transferred between two states.
  • Non-existent systems for the protection of stateless persons: It is very rare for an African state to have a legal framework in place to identify and provide a status for stateless persons and facilitate their acquisition of a
  • Excessive executive discretion: A final critical problem is the widespread lack of due process protections, especially when the government wishes to revoke or refuse the grant or recognition of The laws in too many countries give almost unfettered discretion to the executive in nationality administration, which in practice may mean that very junior state officials responsible for birth registration and the issue of identity cards are deciding the critical right of a person to nationality.

Many nationality problems are, of course, related to Africa’s history of colonisation and the inheritance of borders that cut through pre-existing political boundaries, and institutions that had been founded on systematic racial and ethnic discrimination. The nationality laws adopted at independence were based on European models, all of which discriminated on the basis of gender at that time and were ill-adapted for African realities, including the very low rates of civil registration bequeathed by the colonial powers, the substantial numbers of people who follow a nomadic lifestyle, or the effective integration of populations who migrated during the colonial period.

The recommendations in this report, which draw on widespread expert consultation, call on African states to address the problems of nationality that the continent’s history of colonisation and migration has created and bring their nationality laws into line with international human rights norms. They should support the proposal of the African Commission on Human and Peoples’ Rights for the adoption of a 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 Union and its Regional Economic Communities should lead a process to harmonise national laws and to ensure their compliance with the basic principles of non-discrimination and due process already enshrined in the African Charter on Human and Peoples’ Rights and in the African Charter on the Rights and Welfare of the Child. The proposed draft protocol, as well as the General Comment of the African Committee of Experts on the Rights and Welfare of the Child on the right to a name, birth registration and a nationality, already provide guidance on the provisions that national laws should contain.

These include, most importantly:

  • The removal of discrimination on the basis of gender, race, ethnicity, religion, or other grounds prohibited in the two African Charters, including on the basis of birth in or out of
  • Guarantees that all children have the right to a nationality from Nationality laws should, at a minimum, provide for nationality to be attributed from birth not only to a child with a father or mother (including adoptive father or mother) who is a national, but also to a child who cannot obtain recognition of the nationality of his or her parents, or whose parents’ nationality is not known, as well as a child found in the territory of unknown parents. Much stronger guarantees against statelessness are provided where laws also give rights to nationality to those born in the territory who are still resident at majority or who have one parent also born there.
  • Reform of rules on naturalisation to make it possible for an adult, including a refugee, to change nationality and become a full member of the society where he or she lives—and to transmit that nationality to his or her
  • Effective oversight of executive discretion, with routes for administrative or judicial review of decisions to refuse recognition or deprive a person of