The 2014 edition of the Institute on Statelessness and Inclusion’s World’s Stateless Report noted that “a dearth of information on the scope of statelessness in Africa is a protracted problem”. Across the region, however, a number of research and mapping initiatives are gradually helping to establish a clearer picture of the situation of stateless populations and the factors which are driving nationality problems. The publication by Bronwen Manby of a doctoral dissertation which provides an in depth comparative examination of nationality law and practice in Africa in late 2015 – a culmination of many years of research on these questions—is one important piece in this puzzle. She has also authored a study for UNHCR and IOM looking specifically at the West Africa region. At the national level, mapping efforts are underway in a number of countries, with UNHCR for example publishing a comprehensive study of the situation in Côte d’Ivoire in late 2016. Thematic studies have also helped to elucidate the challenges faced in specific countries in Africa, such as on the issue of gender discrimination in nationality laws in the 2015 report published by the Equal Rights Trust which covers Madagascar and Kenya (alongside Nepal and Indonesia). The new ‘Citizenship Rights in Africa’ website, re-launched in the second half of 2016, offers an impressive database of news articles, reports, legislation and jurisprudence about nationality law, identification and statelessness in Africa. It is searchable by country, theme, and type of media, serving as a key resource for activists working for the eradication of statelessness and the realisation of the right to a nationality in Africa. The following paragraphs offer a snapshot of recent developments in four countries in Africa – Côte d’Ivoire, Kenya, Madagascar, and South Africa – where statelessness is known to be a significant problem but where new research and other initiatives are now helping to drive progress.
The main cause of statelessness in Côte d’Ivoire is the nationality law which grants citizenship purely on the basis of descent and does not include safeguards against statelessness. As a result, hundreds of thousands of persons who have been categorised as ‘foreigners’—in some cases despite living in Côte d’Ivoire for generations—are unable to obtain Ivoirian nationality, leading to the highest reported figure of statelessness on the African continent. There has, however, been some progress towards reducing the number of stateless persons. Amendments to the law in 2013 introduced gender neutral provisions on access to nationality through marriage and enabled persons who should have been entitled to nationality under the law in force before 1972 (which provided that a child born in Cote d’Ivoire could opt for nationality at majority) to acquire nationality by declaration. By August 2016, 10,219 persons had acquired nationality certificates through this process with more than 123,000 people having submitted applications. Others had benefited from late birth registration, an important step towards acquiring nationality. Both governmental and civil society initiatives have also been created to provide legal aid to those seeking nationality through this procedure and to those whose claims for nationality have been dismissed or whose cases have been closed.
Other noteworthy developments include the African Commission on Human and Peoples’ Rights decision of 27 May 2016 in the case of Open Society Justice Initiative v Cote d’Ivoire which reaffirmed the position that the right to a nationality is protected under Article 5 of the African Charter on Human and Peoples’ Rights. In its decision the Court calls on Cote d’Ivoire to amend its nationality law and improve access to birth registration. In a referendum held on 30 October 2016, public support was given to a proposed Constitutional reform which included the removal of the concept of ‘Ivority’, which has fuelled ethnic and religious discrimination in access to nationality, from the Constitution. In December 2016, an inter-ministerial initiative culminated in the adoption of a National Plan of Action under which Côte d’Ivoire has committed to the eradication of statelessness in the country by 2024. Commitments were also made at the end of 2016 to redress the gap in birth registration coverage in the country, with the government announcing a programme to deliver birth certificates to three million undocumented children. An important tool that will inform this work moving forward is the detailed study produced for UNHCR titled ‘Nationality and Statelessness in Côte d’Ivoire’ that was published at the close of 2016. This report
sheds light on the ways statelessness can arise through the cracks in Côte d’Ivoire’s nationality system [and] concludes with a number of recommendations on necessary steps – such as nationality law reform, better identification of those who are stateless or at risk of statelessness, strengthening of the civil status system, and the transparent and uniform identification of nationals and foreigners – to resolve statelessness and ensure respect for the right to nationality.
The stateless population in Kenya is largely composed of ethnic minorities, particularly those who live near the borders or are considered ‘un-Kenyan’ because of their origin in other States. Although they may in fact be eligible for Kenyan nationality under the law, members of the Nubian, Somalis, Maasai, Swahili, Teso, Borana, and Makonde communities face difficulties in acquiring identity cards, which serve in practice as proof of nationality. This includes ‘vetting’ procedures which require the individual to prove their connection to Kenya before they are issued with an identity card and requirements to produce additional documentation such as their grand-parents birth certificates.
Five years after the African Committee of Experts on the Rights and Welfare of the Child found that Kenya had violated the rights of Nubian children in Kenya to access nationality there is no evidence that this decision nor those of the African Commission on Human and Peoples’ Rights on access to nationality for Kenyan Nubians have been fully implemented. There have, however, been some positive steps. In October 2016, the Kenyan president issued a directive that eligible Makonde were to be recognised as citizens and issued identity cards by December. The deadline for registration under a temporary procedure allowing stateless persons whose ancestors had lived in Kenya since independence to acquire nationality has been extended and in July 2016 a pilot survey on stateless persons in Kwale and Malindi counties was launched to test questions on nationality and statelessness for inclusion in the next national census in 2019. This may help to ensure that more reliable data on the stateless population in Kenya is available in future.
Trekking against statelessness
On Monday 10 October 2016, over 300 members of the Makonde community set off on a 500km march from their homes in Kwale (near Mombasa), to State House in Kenya’s capital of Nairobi. The journey, dubbed ‘trekking against statelessness’ was led by the Kenya Human Rights Commission (KHRC). Its purpose was to draw attention to the barriers the community faced in accessing Kenyan citizenship and call on the president to intervene: “the trek was to be a symbolic journey showing the daily struggle that the Makonde go through in not accessing what would be seen as ordinary. It was a journey to lay a mark in the eyes heart and mind of every Kenyan of the degrading nature of statelessness”. While the trekkers met with some setbacks on the way, President Uhuru Kenyatta met with the group following their arrival in Nairobi and offered an apology that their statelessness issue had not yet been addressed. He ordered that the Makonde be recognised as Kenyan citizens and issued with national identity documents accordingly by the end of 2016.
There are various problems in Madagascar leading to statelessness, the main ones being racial discrimination and nationality laws which limit the ability of mothers to transmit nationality to their children, despite the constitution of Madagascar prohibiting such discrimination. Although the law contains provisions which should enable mothers to transmit nationality to their children when the father is stateless in practice this remains a problem. The racial dimension of statelessness particularly affects the Karana (a minority of Indo-Pakistani origin who have been resident in Madagascar since before independence), individuals of Comorian origin and others who are not perceived as ethnically Malagasy. These groups are unable to access naturalisation and even those who are theoretically eligible for nationality face difficulties in acquiring documentation and proof of citizenship as a result of discriminatory administrative practices.
Some positive developments are now underway in the country, as increasing attention is being drawn to the need to address the causes of statelessness. UNHCR, with local partner Focus Development Association (FDA), began the initiative ‘Prevention and reduction of statelessness in Madagascar’ which aims to ensure that the Malagasy nationality law is brought into compliance with international principles of human rights. Components of the project include raising public awareness of the issue of statelessness, as well as building jurisprudence regarding confirmation and acquisition of nationality for stateless persons. In November 2015 a group of twenty MPs pledged to move towards reform of the gender discrimination in Madagascar’s nationality law through the introduction of a proposition de loi in parliament. This came after a technical workshop on statelessness targeting parliamentarians – organised by FDA, the Global Campaign for Equal Nationality Rights, Equal Rights Trust and UNHCR – encouraged them to sign a pledge to that effect. Such an amendment would be in line with the recommendations made by the UN Committee on the Elimination of All Forms of Discrimination against Women in 2015. In the summer of 2016, during the 32nd session of the UN Human Rights Council, a side event was convened on ‘Women’s Equal Nationality Rights in Law and Practice’ at which the Malagasy representative reasserted the country’s commitment to achieving law reform. At the time this publication went to print, there were unconfirmed reports that MPs voted to pass a law reform bill at the end of December 2016. If the change to the law comes into effect, it will remove gender discrimination in the transmission of nationality from parent to child. Although a very encouraging step, the issue of statelessness remains intractable and politically sensitive. The Karana are commonly viewed with hostility, with widespread public belief that granting them nationality will result in this minority gaining undue influence. A new population census was due to be held in 2016 and may result in a better estimate of the stateless population, although problems with estimating statelessness through self-reporting will remain.
Statelessness is understood to be a substantial problem in South Africa, although to date no comprehensive statistics exist. Studies have revealed that the population affected by statelessness is not homogenous, but rather that different groups are vulnerable to nationality problems, for different reasons. These include migrants, asylum seekers and refugees from elsewhere in Southern Africa—including, most significantly, Zimbabwe—or from further afield, who do not enjoy the nationality of their country of origin or now face the risk of statelessness as a result of a protracted problem of lack of documentation of their link to any country. Abandoned and orphaned children have also been found to encounter problems, in some cases, in accessing a nationality and can be at risk of statelessness in South Africa. The so-called ‘blocking’ of identity documents has also created ambiguity in respect of the enjoyment of South African nationality for some of those affected and may be exposing people to statelessness. A serious impediment to better understanding the situation of stateless persons in South Africa is the lack of accurate identification. Indeed civil society has reported that “one of the biggest challenges in the context of assisting stateless persons is that South Africa does not formally recognise nor protect stateless persons who do not qualify for refugee status”, which has also left stateless individuals vulnerable to arbitrary and lengthy immigration detention.
Although the country is not a party to either of the statelessness convention, the right to a nationality is enshrined in the South African Constitution, according to which, no one shall be deprived of their nationality and “every child has a right to a name and a nationality from birth”. Certain protections against statelessness are also included within the South African Citizenship Act, however the implementation of these provisions and their interaction with the Birth and Deaths Registration Act and its regulations has posed difficulties. Important progress was made in September 2016, when the Supreme Court of Appeal handed down a judgement affirming the right of a stateless child born in South Africa to acquire nationality and ordering the Minister of Home Affairs to put in place regulations to ensure the implementation of this provision of the Citizenship Act. The following month, the UN Committee on the Rights of the Child issued its concluding observations on the second periodic report of South Africa, in which it made a number of recommendations relating to how the country deals with cases of statelessness, including that it proceed to “put in place regulations to grant nationality to all children under the jurisdiction of the State party who are stateless or are at risk of being stateless”.
South Africa host of global IPU conference on statelessness
For some time, the Inter-Parliamentary Union (IPU) has taken an interest in the issue of statelessness, publishing a ‘Handbook for Parliamentarians’ on the subject - in collaboration with UNHCR – in 2005 (updated in 2014). In November 2015, the IPU and UNHCR co-organised a global conference on ‘Ensuring Everyone’s Right to Nationality: The Role of Parliaments in Preventing and Ending Statelessness’. The conference was co-hosted by the Parliament of South Africa at the Old South African Assembly Chamber in Cape Town and drew almost 100 parliamentarians from 39 different countries. Following two days of discussion, South African MP Ms. Boroto who was acting as rapporteur for the meeting, issued a conclusions document. In this, seven agreed ‘actions’ for parliamentarians to advocate for were outlined, alongside a call for “all international, regional and sub-regional parliaments and parliamentary assemblies to accelerate efforts to achieve these goals and to support the creation of alliances to advance them”.