{"id":40133,"date":"2024-03-06T15:25:20","date_gmt":"2024-03-06T15:25:20","guid":{"rendered":"http:\/\/citizenshiprightsafrica.org\/?p=40133"},"modified":"2024-03-06T15:25:20","modified_gmt":"2024-03-06T15:25:20","slug":"a-new-treaty-on-statelessness-and-the-right-to-a-nationality-in-africa","status":"publish","type":"post","link":"https:\/\/citizenshiprightsafrica.org\/en\/a-new-treaty-on-statelessness-and-the-right-to-a-nationality-in-africa\/","title":{"rendered":"A new treaty on statelessness and the right to a nationality in Africa"},"content":{"rendered":"
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By Bronwen Manby<\/p>\n

On 17 February 2024, the Assembly of Heads of State and Government of the African Union (AU) formally adopted a Protocol to the African Charter on Human and Peoples\u2019 Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa. This resolution marks the end point of an initiative that began with a meeting convened in Kampala, Uganda in 2007<\/a>, which called for a new continental legal instrument to protect the right to a nationality. The meeting marked the beginning of a long-process of coalition-building among actors with different constituencies and skill-sets in support of this objective.<\/p>\n

The 2007 meeting was convened by Chidi Odinkalu of the Open Society Justice Initiative (OSJI), Tajudeen Abdul-Raheem of the Pan-African Movement, and Dismas Nkunda of the International Refugee Rights Initiative. The high-level participants, including the Legal Counsel of the AU Commission (the secretariat for the AU political organs), as well as representatives of the African Commission on Human and Peoples\u2019 Rights (ACmHPR), and scholars and civil society groups, debated the state of citizenship in Africa. Among compelling evidence of the need for a new legal instrument were accounts of the complaints of mass expulsion of alleged non-citizens and of arbitrary deprivation and denial of nationality brought to the African Commission on Human and Peoples\u2019 Rights \u2013 among them the cases of former President Kenneth Kaunda of Zambia and presidential candidate John Modise of Botswana<\/a>. \u00a0In the absence of a specific provision on the right to a nationality in the African Charter on Human and Peoples\u2019 Rights itself, the African Commission was obliged to rely on other rights within the Charter. The first outline of a draft protocol was prepared and presented to the meeting by Chaloka Beyani of the London School of Economics, later UN Special Rapporteur on the Rights of Internally Displaced Persons (IDPs), and an adviser to the AU for the drafting and adoption of the African Convention for the Protection and Assistance of IDPs.<\/p>\n

OSJI commissioned research in a dozen African states on discrimination in access to citizenship, and hosted a series of civil society meetings to discuss these national reports and the normative frameworks, resulting in two detailed studies of the problems of citizenship discrimination in Africa authored by myself: on the comparative legal provisions of all 54 states<\/a>, including a comprehensive set of recommendations on the content of national citizenship laws, published by the Open Society Foundations (first edition 2009; the most recent 3rd<\/sup> edition 2016), and a set of case studies of the manipulation of citizenship law<\/a> for political purposes in different states, published by Zed Books. These were launched at an event also held in Kampala in 2009, in the margins of the AU summit that adopted the AU Convention on IDPs.<\/p>\n

The process of adopting the protocol<\/h2>\n

A series of meetings held in the margins of sessions of the ACmHPR, and presentations by scholars, activists and stateless persons in public and private sessions, culminated in the first major milestone towards the adoption of the protocol: a 2013 resolution of the ACmHPR<\/a> on the right to a nationality. The resolution restated the principle already established by the Commission\u2019s jurisprudence<\/a>: that Article 5 of the African Charter, on the right to dignity and recognition of legal status, included nationality as part of legal status. The resolution decided to prepare a study on the right to a nationality in Africa, a task put under the leadership of the Commission\u2019s Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa, Maya Sahli Fadel of Algeria. A year later, the study on The Right to Nationality in Africa<\/a>,<\/em> authored by Ibrahima Kane, also of the Open Society Foundations, was adopted by the African Commission, which assigned to the Special Rapporteur the task of leading the process to draft a Protocol<\/a> to the African Charter on the right to a nationality.<\/p>\n

Early on, the strategic decision was taken by Commissioner Sahli Fadel to involve the political organs of the AU. A meeting held in May 2013 in Addis Ababa with the director of the AU Commission\u2019s Department of Political Affairs, Khabele Matlosa, agreed on a \u2018roadmap\u2019 for the adoption of a protocol. This process included the formal launch of the African Commission\u2019s study on the right to a nationality in the margins of the January 2015 AU summit, with high-level participation, including President Alassane Ouattara of C\u00f4te d\u2019Ivoire (whose case of arbitrary denial of nationality had been heard by the ACmHPR), as well as Chair of the AU Commission Nkosazana Dlamini-Zuma, and UNHCR High Commissioner Ant\u00f3nio Guterres. The ACmHPR proceeded to convene a series of experts\u2019 meetings to finalise the text of the draft Protocol, and adopted a draft text later in 2015. The text was discussed and revised by the AU Commission on International Law in October 2015. In July 2016, the AU Executive Council of Ministers welcomed<\/a> the development of this text by the African Commission and launched the political process of discussion by representatives of states. The draft text was first examined by the AU \u2018specialised technical committee\u2019 (STC) on migration, refugees and IDPs, in four meetings of state experts in 2017 and 2018, at the end of which the text was formally adopted by ministers and referred to the STC on justice and legal affairs<\/a> which has to approve all legal instruments. After a COVID-caused interruption, and protests from some (mainly North African) states that a single meeting of the STC justice and legal affairs was insufficient to debate the text, the protocol was finally approved by ministers at an extraordinary meeting of the STC on justice and legal affairs in December 2023, and submitted to the February 2024 summit.<\/p>\n

Key provisions of the text<\/h2>\n

So, what are the key provisions of this new protocol, on the \u2018specific aspects\u2019 of statelessness and the right to a nationality in Africa?<\/p>\n

Perhaps the main advances on existing African and international law on the right to a nationality are provisions on:<\/p>\n