Nationality laws in six countries in Africa do not provide mothers equal rights as fathers to confer their nationality on their children, leading to a risk of statelessness for such children.
Under the 1962 Citizenship Law of Somalia, Somali mothers have no ability to confer their nationality to their children. Eswatini’s constitution stipulates that children born after 2005 can only acquire nationality from their Swazi fathers, unless the child was born out of wedlock and has not been claimed by the father in accordance with customary law, in which case the Swazi mother can pass on her nationality. In addition, Eswatini’s 1992 Citizenship Act contains the same provisions, applicable to children born after 1992.
States with constitutional guarantees of equality that have not yet reformed nationality laws to introduce gender equality
Four African States – Burundi, Liberia, Sudan, and Togo – have enshrined the principle of gender equality in recent constitutions but have yet to reform the relevant provisions of their nationality laws. In principle, constitutional provisions prevail over the nationality law in each State. However, because nationality laws tend to be more specific and practice-oriented, administrative authorities may be more likely to apply the older provisions of these laws rather than look to constitutional guarantees of gender equality.
For example, in Burundi, the 2000 Nationality Code does not allow Burundian mothers to confer nationality to their children except when maternal filiation is established in situations where they are born out of wedlock to unknown fathers or disowned by their fathers. This is at variance with Article 12 of Burundi’s 2005 Constitution, which guarantees Burundian men and women equality in nationality matters.
In Liberia, the Aliens and Nationality Law of 1973 allows children born in Liberia to acquire Liberian citizenship at birth. Children born abroad to Liberian mothers, however, are excluded from acquiring Liberian citizenship. These provisions are inconsistent with Article 28 of the Liberian Constitution of 1986, which establishes that any child who has a parent who was a Liberian citizen at the time of birth acquires citizenship, provided that the person renounces any other nationality upon attaining majority. In 2019, during the High-Level Segment on Statelessness, Liberia pledged to work to ensure the passage of an amendment to the Aliens and Nationality Law to address issues of gender discrimination.
In Togo, while the 1978 Nationality Law contains a safeguard to grant citizenship to children born in its territory who cannot claim the nationality of another State, it only allows Togolese mothers to confer their nationality on their children if the father is stateless or of unknown nationality. This is contrary to Article 32 of the 1992 Constitution, which grants Togolese nationality to children born to Togolese fathers or mothers.
In Sudan, the 1994 Nationality Act provides that children born outside the country before the coming into force of the Act whose fathers were born in Sudan are Sudanese. The Act furthermore provides that all children residing in Sudan at the coming into force of the Act whose ancestors from the father’s side were residing in Sudan since 1956 acquire Sudanese nationality by descent. After 1994, the Act grants citizenship to children born to a father who was a Sudanese national by descent. The law was amended in 2005 to allow a child born to a Sudanese mother to acquire Sudanese nationality by birth by following an application process. These provisions from the 1994 Act are at variance with Article 7 of the Interim Sudanese Constitution that guarantees that “every person born to a Sudanese mother or father shall have an inalienable right to enjoy Sudanese nationality and citizenship.” After the creation of the independent State of South Sudan, the Republic of Sudan amended its nationality law in 2011 and subsequently in 2018, but has yet to amend the relevant sections of the 1994 Act to ensure equal rights between Sudanese women and men to confer their nationality to their children. The Interim Sudanese Constitution remains in force until Sudan adopts a permanent constitution.
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