Report on citizenship law : Togo
Published: 29/Jun/2022
Source: GLOBALCIT, European University Institute
By Michael OFFERMANN
1. Introduction
Togo is a narrow, oblong country in West Africa, roughly 50 km wide and 650 km long, situated between Ghana, Benin, and Burkina Faso. It is made up of about two thirds of the territory of the former German colony of Togoland, corresponding to the part mandated to France by the League of Nations. The remaining portion of the German territory was mandated to the United Kingdom. With the creation of the United Nations, both parts passed under the UN trusteeship system. As was often the case elsewhere, the colonial borders did not respect the territories of ethnic groups and France and the UK followed different lines of colonial administration. This resulted in a complex history of nationality administration. In a 1955 referendum supervised by the UN, the British-administered part of Togoland voted to join Gold Coast, when it became independent in 1957 under the name of Ghana.
Under the “French Union” of 1946, all inhabitants of French overseas departments and territories, including Togoland, had become French citizens. In anticipation of independence, the 1958 statute for Togoland created a Togolese citizenship. In 1961, one year after French Togoland had become the independent Republic of Togo, the new country adopted its first nationality law, modelled largely on the French template common to France’s former African colonies, based on the French Civil Code. This template combined elements of both “ius sanguinis” (right of blood/nationality by descent) and “ius soli” (right of soil/right to the nationality of the country where the person is born) for the attribution of nationality from birth (“nationality of origin”). A child was attributed nationality at birth if either father or mother was Togolese; or, if born in Togo, if either parent was also born in Togo. Although there were elements of discrimination based on sex, a child could thus acquire nationality through either the father or the mother. The law also provided for acquisition at a later stage based on long-term residence (naturalisation), marriage, adoption, or birth on the territory to foreign parents and continued residence until adulthood. Transitional provisions governing the transfer of sovereignty to the new state provided for attribution of nationality to those who could show they had been considered Togolese in the past, and for the option to acquire nationality for others resident for the preceding five years.
Apart from a minor amendment in 1971, this law remained in force until it was replaced by ordinance in 1978. The new code was more restrictive and discriminatory. Only the father could transmit his nationality to the child, and no longer the mother. A child born in Togo needed now to have both parents born in Togo in order to be attributed Togolese nationality at birth. A foreign spouse married to a Togolese person who had acquired Togolese nationality due to that marriage would now lose it again in case of divorce. These provisions were stated to apply retroactively.
The 1978 code remains in force, as amended in 1980. The 1992 Constitution, however, provides that either the father or the mother transmits Togolese nationality to their child. The 2007 Child Code reaffirmed this provision. The 2012 Code of Persons and the Family stated that a foreign spouse would retain her Togolese nationality in case of divorce. While these more recent laws corrected some of the discriminatory features of the 1978 Code, the Code itself remained unchanged – which means that contradictory provisions coexist until today.
Under the current regime, there remain three ways to acquire Togolese nationality: 1) by attribution at birth (a) to the child of a Togolese mother or father, (b) to a child born in Togo if both parents were also born also in Togo, provided that the child is ordinarily resident in Togo and appears to have the status of a Togolese (possession d’état de Togolais); (c) to a child born in Togo who cannot claim any other nationality; 2) by later acquisition as of right (a) through marriage, unless nationality is declined (only for a woman married to a Togolese man), (b) by “declaration” for children born in Togo to foreign parents at the moment of reaching adulthood if they demonstrate “possession d’état de Togolais” from the age of 16; 3) through discretionary naturalisation based on five years’ residence. Unlike some other West African nationality codes, the Togolese nationality code does not distinguish between children born in or out of wedlock. There is no specific provision which allows children adopted by Togolese citizens to become Togolese.
Dual citizenship is possible in some cases. A foreigner who is naturalised must give up the former nationality. A Togolese who voluntarily acquires another nationality is stated to lose Togolese nationality, but subject to permission from the Togolese Council of Ministers (there is some ambiguity in the wording of the law). A woman who marries a Togolese can take up the Togolese nationality and keep her former one. Those who are attributed two nationalities at birth through their parents, or based on being the second generation born in Togo, or who acquire Togolese nationality by declaration, are permitted to hold both (or more) nationalities.
In addition to its non-compliance with the Constitution, the current nationality code is not compliant with several provisions of human rights conventions to which Togo has acceded. Togo’s recent accessions to the two UN conventions regarding statelessness are also meaningless without a corresponding review of the nationality law.
In practice, due to the prevailing poverty and the insufficient capacities of public facilities, for most people in Togo it is difficult to obtain a nationality certificate, the legal proof of nationality under Togolese law. This certificate is necessary to obtain an ID card which is a prerequisite for the enjoyment of basic civil, economic, and social rights and services. Only about 1.2 million citizens out of a total population of 8.5 million have one. This situation constitutes a severe impediment to personal development and in consequence to the development of the country. The modern harbour of Lomé and local markets attract many traders and businesses from neighbouring countries. Many foreigners have children born in Togo. In spite of a nationality law that is generous on paper about awarding Togolese nationality to foreigners born in Togo, in practice, the acquisition of Togolese nationality by foreigners, particularly through naturalization or by declaration based on birth in the country, is very rare.
The government has made commitments over more than a decade to reform the nationality code in order to bring it into compliance with the constitution and Togo’s obligations under international law, and to improve the system for obtaining certificates of origin and nationality certificates, but these remain unimplemented. The most important reforms required include the ending of gender discrimination in the nationality code in transmission to both spouses and children, the establishment of the presumption of nationality for children found in Togo of unknown parents and place of birth, and the easing of the onerous requirements to obtain a nationality certificate and national identity card. Togo is in the process of updating its identification systems, including the biometric registration of the population, but without addressing these fundamental underlying issues.
Download report from EUI: https://cadmus.eui.eu/handle/1814/74635