Publié : 25/Fév/2016
Source: CRAI blog
The 3rd edition of the Open Society Foundation publication Citizenship Law in Africa: A Comparative Study was released in January. Its author, Bronwen Manby, considers developments since the last edition was published in 2010.
The last five years have been a busy time for developments in citizenship law in Africa. There have been amendments to national laws in every region of the continent; both of the main continental human rights bodies have established new standards on the right to a nationality; and an entire new country has been created in South Sudan, with important consequences for the nationality of those living in both there and in Sudan. Meanwhile, the transfer of sovereignty of the Bakassi peninsula from Nigeria to Cameroon has left those living in the region with challenges in establishing nationality in either country. Important steps have been taken to resolve long-standing problems relating to nationality in Côte d’Ivoire; and Tanzania has fulfilled its pledge to grant nationality to long-term refugees from Burundi.
The well-established trend to greater gender equality in Africa’s citizenship laws has continued.
- Mali’s new family code adopted in 2011 brought gender equality in transmission of nationality to children and between spouses.
- Senegal amended its nationality code in 2013, thanks to the efforts of then Minister of Justice Aminata Toure, to remove all gender discrimination.
- In Niger, parliament approved an end to gender discrimination in transmission of nationality to spouses in 2014, 15 years after it created equal rights for parents and children.
- Kenya’s 2010 constitution ended the previous gender discrimination in transmission to children born abroad and to spouses
- Zimbabwe’s 2013 constitution confirmed the end to gender discrimination already enacted in 2009 amendments to the previous text.
- South Sudan’s new constitution and nationality law also provide for gender equality.
North Africa has made notably more steps towards gender equality in nationality matters than the Middle East, and Tunisia confirmed a complete end to gender discrimination in law with amendments to the nationality code in 2010, after successive previous amendments had moved in that direction. Libya also unexpectedly amended its nationality code in 2010 to slightly reduce gender discrimination, though the law continued to make it very difficult to acquire Libyan nationality for those with foreign fathers. The collapse of central government soon after made the changes almost academic in any event.
Less significant changes were made in Côte d’Ivoire, where amendments to the nationality code adopted in 2013 made transmission of nationality between spouses automatic (rather than based on option) whether between husband and wife or vice-versa. Benin’s constitutional court also ruled that the – limited – gender discrimination in the nationality code was unconstitutional. Reforms to bring gender equality in transmission of nationality were also under discussion in Madagascar, Liberia, Tanzania, and other countries.
Africa has continued to follow the global trend towards recognition of dual nationality. Since 2010, Kenya, Niger, and Zimbabwe – and South Sudan – have all adopted laws confirming that dual nationality is allowed in all circumstances, joining the substantial majority of African countries that now do so. In December 2015, Zambia’s parliament also approved a new constitution that would permit dual nationality for the first time. In 2010, Mauritania joined those countries allowing dual nationality only with permission of the authorities. Constitutional discussions in Liberia and Tanzania, however, revealed strong opposition to a similar change.
Independence of South Sudan
The secession of South Sudan from Sudan in 2011 has had important impacts not only for those who acquired South Sudan’s new nationality but also for those resident in Sudan of South Sudanese descent but with no desire or reason to cease being Sudanese. The SPLM and the government of Sudan notably failed to adopt any framework to regulate nationality following the succession of states, and each state adopted or amended its own laws. The impact of the changes was that, while in principle it should be possible for most who need it and are resident in South Sudan to get recognition of South Sudanese nationality, many tens of thousands of people resident in Sudan with an assumed connection to South Sudan have been arbitrarily deprived of their Sudanese nationality. A large percentage of these are also likely to be unable to obtain recognition of South Sudanese nationality, and are therefore stateless. A complaint is being brought to the African Committee of Experts on the Rights and Welfare of the Child challenging these rules.
Transfer of sovereignty over the Bakassi Peninsula
2013 marked the end of any Nigerian presence in the Bakassi Peninsula, over which sovereignty was transferred by a 2002 judgment of the International Court of Justice from Nigeria to Cameroon. When the two countries finally reached agreement in August 2008 to implement the judgment, the understanding was that, at the end of a five-year transitional period, Bakassi residents could become Cameroonian with the right to Cameroonian identity documents; but could also remain Nigerian with resident alien status in Cameroon; or leave Bakassi and resettle in Nigeria. But the legal authority and administrative arrangements to enable these outcomes on either side of the border were left—and remain—unclear, leaving many tens of thousands without documentation proving their rights as either Nigerians or Cameroonians (Nigeria allows dual nationality but Cameroon does not).
Acquisition and loss
South Africa’s 2010 amendments to its nationality law made it possible for a child born in South Africa to acquire nationality at majority, whatever the immigration status of the parents, but conditioned this right on registration of the birth. A major drive to increase rates of birth registration since 1994 had achieved impressive results; but in 2015, the Department of Home Affairs announced that it was cracking down on late registrations in order to prevent fraudulent acquisition of citizenship. The Public Protector criticised the government for failure to register some births.
The 2010 amendments in South Africa also provided additional restrictions on dual nationality, which may only be held with official permission, to state that a person naturalising as South African must either renounce another nationality or show that the other country allows dual nationality. Concerns around national security were reflected in amendments in both South Africa and in Seychelles, permitting deprivation of nationality in some circumstances for those involved in terrorist or military activities.
Mauritania adopted amendments to its law in 2010 that made it more difficult for anyone without a father with existing documented Mauritanian nationality to obtain recognition of citizenship, and notably failed to take the opportunity to move towards gender equality.
Naturalisation is a highly discretionary process in many countries, often in the personal gift of the president and with no judicial oversight of arbitrary decisions. A few African countries have followed an international trend to allow “citizenship by investment” as a form of fundraising. Seychelles’ 2013 nationality law enabled such a process; but Comoros took the sale of citizenship to new heights, through agreements with the Gulf States for the grant of nationality to stateless Bidoon with no other connection to Comoros. Namibia, meanwhile, increased the waiting period to acquire nationality by marriage or by naturalisation to ten years.
More positively, Côte d’Ivoire took much-needed—but still inadequate—steps to enable acquisition of nationality by declaration for those who would have qualified for nationality before amendments to the nationality code in 1973, but who never accessed those procedures. Tanzania built on its reputation as an (admittedly not always consistent) friend of refugees by completing its long-promised naturalisation of Burundian refugees in the country since the 1970s. The new constitutions of both Kenya and Zimbabwe for the first time made provision for the children of unknown parents to be presumed to be citizens.
New continental standards
There have been major developments in standard-setting at the African and international levels. 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. This decision informed recommendations on nationality in the Committee’s 2014 General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child (the right to a name, birth registration and a nationality). The African Commission on Human and Peoples’ Rights adopted an important resolution in 2013 and a study on nationality in Africa In 2014.
There have also been important standard-setting exercises at international level, where the UN High Commissioner for Refugees (UNHCR) has adopted a number of important guidelines on statelessness, and in 2014 launched a major campaign to end statelessness within 10 years, #IBelong. UNHCR’s regional office in Dakar collaborated with the Economic Community of West African States (ECOWAS), in a process leading to the adoption in February 2015 of a declaration committing the region to address statelessness.
In September 2015, the UN General Assembly adopted the Sustainable Development Goals. Target 16.9 is to, “By 2030, provide legal identity for all, including birth registration”. There is already a big push to increase birth registration in Africa, but there’s much less clarity on what “legal identity” means and how this target will be fulfilled. Efforts to strengthen and modernise identification systems will need to be linked to the UNHCR #IBelong campaign, so that the underlying legal frameworks are reformed to end statelessness at the same time as new technologies are rolled out.
The big news to look for on the right to a nationality in Africa in 2016 and beyond will be the progress made through the political organs of the African Union by the proposal for a protocol on the right to a nationality to the African Charter adopted by the African Commission on Human and Peoples’ Rights in August 2015. If given the go-ahead by the AU’s political bodies – the proposal should be considered at the Executive Council meeting in June 2016 — it will be considered by state experts and ministers in meetings convened by the thematic “specialised technical committees” of the AU, before returning to the Executive Council of Ministers and finally the Assembly of Heads of State and Government for approval.
The 3rd edition of my Citizenship Law in Africa: A Comparative Study, is available here. It is a comprehensively updated and rewritten version of the 2nd edition, published in 2010.