Sudan: A Commentary on Mazin Adil Ali Deng and others v. Ministry of Interior and Ministry of Justice
Published: 16/Nov/2016
Source: CRAI blog
By Nasredeen Abdulbari*
The secession of South Sudan from Sudan in July 2011 was followed by amendments to the Sudanese citizenship law removing citizenship from those with entitlement to South Sudanese citizenship. These changes have, unsurprisingly, led to the emergence of citizenship-related litigation by individuals born of mixed parentage before Sudanese judicial institutions, where applicants have challenged decisions depriving or preventing them from obtaining or re-obtaining Sudanese citizenship. On the one hand, it is unfortunate that individuals who were born on Sudanese soil and/or to a Sudanese parent and have known no other place as home but Sudan, are legally struggling to establish they are Sudanese. On the other hand, it is a positive phenomenon that the arena of this struggle is, generally speaking, not prisons, detention centers, or deportation trucks, but the courts of law.
The case of Mazin Adil Ali Deng (hereinafter Mazin Deng) and others, decided on 23 August 2016, is so far the second case to be reviewed and decided by the Constitutional Court; the first was the case of Iman Hasan Benjamin v. Sudan Government. In the Benjamin case, decided in July 2014, the Court decided that Iman Hasan Benjamin had the right to obtain Sudanese citizenship because her mother was Sudanese without overruling the decision of the Civil Registry. In the Deng case, the Court also decided the applicants were entitled to acquire Sudanese citizenship based on their mothers’ citizenship, but also overruled the decision of the Ministry of Interior.
The applicants in Mazin Deng’s case were six siblings born in Sudan to a father (Adil Ali Deng) from South Sudan and a mother (Saeeda Abuzaid Mohamed Doka) from North Sudan (Sudan). They submitted applications to the Sudan Ministry of Interior to obtain Sudanese citizenship, but the latter rejected their applications on the basis that their father lost his Sudanese citizenship by acquiring the citizenship of South Sudan under the operation of the laws of the new state when it officially seceded. The appeal before the Constitutional Court was based on Article 7(2) of the Sudan Interim Constitution of 2005 (amended 2011), which provides that “Every person born to a Sudanese mother or father shall have an inalienable right to enjoy Sudanese nationality and citizenship.”
The argument of the applicants was that regulation of citizenship by the law does not include and should not reach the point of depriving a person of a right that has been given or recognized by the Constitution. In other words, they argued that statutory provisions could not or should not undermine constitutional provisions, which in this case means the right of applicants to acquire citizenship through the father, according to the 2005 Constitution, cannot be taken away by the Nationality Law.
The representative of the Ministry of Interior argued that although the Constitution recognizes the inalienable right of those born to either a Sudanese mother or father to acquire Sudanese citizenship, it also stipulates in Article 7(3) that the law shall regulate citizenship and naturalization. Section 10(2) of the Sudanese Nationality Act 1994, as amended in 2011, provides that a person loses Sudanese nationality if he or she de facto or de jure acquires the nationality of South Sudan. Section 10(3) states that a minor automatically loses his or her Sudanese nationality if the “responsible father” loses it. The representative argued that Article 7(3) of the Constitution, read with Section 10(3) of the statute, gives the Ministry of Interior the authority not to recognize the Sudanese citizenship of Mazin and his five siblings (Munzir, Mayada, Mawada, Mohamed, and Muayad). The Ministry of Justice thus argued that the applicants had no grounds on which to challenge the decision that denied them citizenship under the law, but could only challenge the constitutionality of the law itself.
The Constitutional Court ruled that the decision of the Ministry of Interior not to recognize the right of the applicants to obtain citizenship was unconstitutional and, in addition, stated that the applicants have the right to apply for Sudanese citizenship on the basis of their mother’s nationality.
This decision addresses and raises some interesting points:
First, the decision refers to both Article 7(2) of the Constitution and Section 4(3) of the Sudan Nationality Act of 1994 (as amended in 2011). The former gives an unconditional right to children born to a Sudanese mother to acquire Sudanese citizenship, i.e., they acquire it automatically. The latter gives the same right, but unfortunately conditionally, as it requires such children to submit an application to the relevant competent authorities before citizenship is confirmed. The decision somewhat surprisingly confirms this condition is constitutional, which at least in theory gives the Ministry of Interior the right to deny their applications, since decision-making always implies existence of discretionary power to approve or to deny the request in question – even if, as in the case of section 4(3), the acquisition of citizenship is supposed to be of right once the application is made. The decision of the Court is consistent with its previous decision in the Benjamin case, in which the appellant sought to have Section 10(2) declared unconstitutional. The Court instead of doing so, referred to Section 4(3) of the law as a basis for Iman Hasan Benjamin to acquire Sudanese citizenship. It seems the Court sought to avoid a ruling that the nationality law is unconstitutional, despite its discriminatory provisions.
Second, if or when Deng and his siblings do apply for Sudanese citizenship based on their relationship to their mother, it is unclear how the Ministry of Interior would deal with the fact that they are entitled to be South Sudanese citizens through their father and thus, according to Section 10(2), ineligible to become Sudanese. An argument could, however, be made that this section speaks about revocation of citizenship as opposed to its acquisition. The question that would arise, if this argument is valid, is: would they acquire Sudanese citizenship on application based on their mother’s citizenship and then automatically lose it because they are de jure South Sudanese citizenship based on their father’s citizenship? The section does not expressly or implicitly speak about children whose mothers are from Sudan and their eligibility to be exempted from the prohibition of dual citizenship with South Sudan. So this decision and the decision in Iman’s case seem to make an exception for the applicants in the two cases that is not provided for in the law. However it is not clear if the Ministry of Interior is bound to implement this exception in similar future applications.
Third, the Ministry of Justice has argued that the applicants should have challenged the constitutionality of Section 10(3). In Iman’s case, the applicant challenged the constitutionality of Section 10(2), but the Court stated that the act of challenging was “premature,” and concluded that “…Section 10(2) of the Nationality Act of 1994, amended 2011,…is consistent with the reality and circumstances of the current situation and does not contradict the 2005 Interim Constitution of the Republic of Sudan and the conventions that the Constitution incorporates.” Since Section 10(3) is in reality a part of and related to Section 10(2), there is no reason to make Mazin and his siblings believe the Court would make a different decision if they applied for declaring it unconstitutional. As it did in Iman’s case, the Court would find convenience in referring the applicants to their right to apply for citizenship under Section 4(3), as it in fact did in both cases. The words “circumstances of the current situation” probably refer to the political nature of the amendment by which Sections 10(2) and (3) were introduced and adopted in 2011 right before the official secession of South Sudan. The Constitutional Court should ideally, in making its decisions, avoid the political calculations or considerations of the legislative and executive branches of the government if they contradict human rights or the general principles of international law, especially that the Court according to the Constitution is empowered to “protect human rights and fundamental freedoms.”
The decision of the Court in Deng’s case thus did not address the constitutionality or not of Section 10(2) and (3), on the basis that the failure of the applicants to argue the case meant that it was not in issue. Nonetheless, with regard to gender equality in citizenship and prevention of statelessness, it is, in my perspective, a step forward; it is well-written in Arabic and partially well-argued as far as the specific request that was submitted to the Court is concerned. It is, as stated above, consistent with what the Court said in Iman Hasan Benjamin’s case that Iman was eligible to re-acquire Sudanese citizenship on the basis of her mother’s nationality, except that in Iman’s case the Court did not reverse the decision of the Civil Registry, which denied her request for a national identification number.
In conclusion, that the Sudanese competent authorities are deciding whether individuals, who were born in Sudan to parents from Sudan and South Sudan are eligible to obtain or re-obtain Sudanese citizenship, is a relatively healthy thing, compared to deportation or imprisonment – which was at one time threatened. The cases of those born to South Sudanese fathers will probably continue to be taken to the Constitutional Court. Given that the Court is clearly deferring to the political considerations behind the 2011 amendment of the nationality law, it is expected that the Court will not make a better decision in any future similar cases, as long as Section 10(2) and (3) are in effect. Thus, the real challenge as far as the whole issue of citizenship of people with roots in South Sudan is concerned is to strike Section 10(2) and (3) down altogether.
In this regard, the applicants have rightly stated in their argument that the provisions of the Constitution are supreme and that the role or the function of the law is to regulate only, which means that the law cannot deprive individuals of their rights that are recognized or granted by the Constitution. Even if we assume, for the sake of argument, that Section 10(2) is constitutional and that the father had lost his nationality as a result, the children should not lose theirs. In my opinion, a strict distinction should be drawn between the loss or revocation of nationality for a reason that exists before its acquisition (fraud for example) and a loss of nationality for a reason that exists after its acquisition (a political decision, as in Sudan’s situation). In the former case, the effect could go beyond the person who loses his/her nationality (the father in this case), if separate deprivation decisions find they have also fraudulently acquired it and that the best interests of the child do not require that they retain nationality. So the children and others who acquired their citizenship depending on the nationality of their father (which is voided ab initio), should not also lose it if, for example, they would thereby become stateless. This is in addition to the fact that Sudanese law recognizes the jus soli principle, if the father of the applicant was born in Sudan and the applicant was also born there before the 1994 act came into effect. Unfortunately, the political nature of the 2011 amendment and the inclination of the Court to respect it are an obstacle to any objective examination of or discussion about these issues, which the Constitutional Court could have addressed even in obiter dictum.
* Independent consultant and doctoral candidate at Georgetown University Law Center. He could be reached at nha32@georgetown.edu.
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